diff --git "a/data/processed/caselaw.json" "b/data/processed/caselaw.json" --- "a/data/processed/caselaw.json" +++ "b/data/processed/caselaw.json" @@ -1,79652 +1,3 @@ -[ - { - "id": "scc-18078-1", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 1–2", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Chief Justice and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ. — This appeal and its companion cases (see Bell Canada v. Canada (Attorney General), 2019 SCC 66, [2019] 4 S.C.R. 845), provide this Court with an opportunity to re-examine its approach to judicial review of administrative decisions.\n\nIn these reasons, we will address two key aspects of the current administrative law jurisprudence which require reconsideration and clarification. First, we will chart a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision. Second, we will provide additional guidance for reviewing courts to follow when conducting reasonableness review. The revised framework will continue to be guided by the principles underlying judicial review that this Court articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190: that judicial review functions to maintain the rule of law while giving effect to legislative intent. We will also affirm the need to develop and strengthen a culture of justification in administrative decision making.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-2", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 3–4", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "We will then address the merits of the case at bar, which relates to an application for judicial review of a decision by the Canadian Registrar of Citizenship concerning Alexander Vavilov, who was born in Canada and whose parents were later revealed to be Russian spies. The Registrar found on the basis of an interpretation of s. 3(2) (a) of the Citizenship Act , R.S.C. 1985, c. C-29 , that Mr. Vavilov was not a Canadian citizen and cancelled his certificate of citizenship under s. 26(3) of the Citizenship Regulations, SOR/93-246. In our view, the standard of review to be applied to the Registrar’s decision is reasonableness, and the Registrar’s decision was unreasonable. We would therefore uphold the Federal Court of Appeal’s decision to quash it, and would dismiss the Minister of Citizenship and Immigration’s appeal. I. Need for Clarification and Simplification of the Law of Judicial Review\n\nOver the past decades, the law relating to judicial review of administrative decisions in Canada has been characterized by continuously evolving jurisprudence and vigorous academic debate. This area of the law concerns matters which are fundamental to our legal and constitutional order, and seeks to navigate the proper relationship between administrative decision makers, the courts and individuals in our society. In parallel with the law, the role of administrative decision making in Canada has also evolved. Today, the administration of countless public bodies and regulatory regimes has been entrusted to statutory delegates with decision-making power. The number, diversity and importance of the matters that come before such delegates has made administrative decision making one of the principal manifestations of state power in the lives of Canadians.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-3", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 5–6", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Given the ubiquity and practical importance of administrative decision making, it is essential that administrative decision makers, those subject to their decisions and courts tasked with reviewing those decisions have clear guidance on how judicial review is to be performed.\n\nIn granting leave to appeal in the case at bar and in its companion cases, this Court’s leave to appeal judgment made clear that it viewed these appeals as an opportunity to consider the law applicable to the judicial review of administrative decisions as addressed in Dunsmuir and subsequent cases. In light of the importance of this issue, the Court appointed two amici curiae, invited the parties to devote a substantial portion of their submissions to the standard of review issue, and granted leave to 27 interveners, comprising 4 attorneys general and numerous organizations representing the breadth of the Canadian administrative law landscape. We have, as a result, received a wealth of helpful submissions on this issue. Despite this Court’s review of the subject in Dunsmuir, some aspects of the law remain challenging. In particular, the submissions presented to the Court have highlighted two aspects of the current framework which need clarification.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-4", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 7", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first aspect is the analysis for determining the standard of review. It has become clear that Dunsmuir’s promise of simplicity and predictability in this respect has not been fully realized. In Dunsmuir, a majority of the Court merged the standards of “patent unreasonableness” and “reasonableness simpliciter” into a single “reasonableness” standard, thus reducing the number of standards of review from three to two: paras. 34-50. It also sought to simplify the analysis for determining the applicable standard of review: paras. 51-64. Since Dunsmuir, the jurisprudence has evolved to recognize that reasonableness will be the applicable standard for most categories of questions on judicial review, including, presumptively, when a decision maker interprets its enabling statute: see, e.g., Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 55; Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197, at para. 13; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 26 and 28; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 25; Dunsmuir, at para. 54. The Court has indicated that this presumption may be rebutted by showing the issue on review falls within a category of questions attracting correctness review: see McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 22.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-5", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 7–8", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "It may also be rebutted by showing that the context indicates that the legislature intended the standard of review to be correctness: McLean, at para. 22; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 32; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230 (“CHRC”), at paras. 45-46. However, uncertainty about when the contextual analysis remains appropriate and debate surrounding the scope of the correctness categories have sometimes caused confusion and made the analysis unwieldy: see, e.g., P. Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” (2016), 62 McGill L.J. 527.\n\nIn addition, this analysis has in some respects departed from the theoretical foundations underpinning judicial review. While the application of the reasonableness standard is grounded, in part, in the necessity of avoiding “undue interference” in the face of the legislature’s intention to leave certain questions with administrative bodies rather than with the courts (see Dunsmuir, at para. 27), that standard has come to be routinely applied even where the legislature has provided for a different institutional structure through a statutory appeal mechanism.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-6", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 9–10", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The uncertainty that has followed Dunsmuir has been highlighted by judicial and academic criticism, litigants who have come before this Court, and organizations that represent Canadians who interact with administrative decision makers. These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence. This Court, too, has taken note. In Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, at para. 19, Abella J. expressed the need to “simplify the standard of review labyrinth we currently find ourselves in” and offered suggestions with a view to beginning a necessary conversation on the way forward. It is in this context that the Court decided to grant leave to hear this case and the companion cases jointly.\n\nThis process has led us to conclude that a reconsideration of this Court’s approach is necessary in order to bring greater coherence and predictability to this area of law. We have therefore adopted a revised framework for determining the standard of review where a court reviews the merits of an administrative decision. The analysis begins with a presumption that reasonableness is the applicable standard in all cases. Reviewing courts should derogate from this presumption only where required by a clear indication of legislative intent or by the rule of law.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-7", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 11–12", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The second aspect is the need for better guidance from this Court on the proper application of the reasonableness standard. The Court has heard concerns that reasonableness review is sometimes perceived as advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”. These concerns have been echoed by some members of the legal profession, civil society organizations and legal clinics. The Court has an obligation to take these perspectives seriously and to ensure that the framework it adopts accommodates all types of administrative decision making, in areas that range from immigration, prison administration and social security entitlements to labour relations, securities regulation and energy policy.\n\nThese concerns regarding the application of the reasonableness standard speak to the need for this Court to more clearly articulate what that standard entails and how it should be applied in practice. Reasonableness review is methodologically distinct from correctness review. It is informed by the need to respect the legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court. In order to fulfill Dunsmuir’s promise to protect “the legality, the reasonableness and the fairness of the administrative process and its outcomes”, reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions: para. 28.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-8", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 13–14", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.\n\nOn the one hand, courts must recognize the legitimacy and authority of administrative decision makers within their proper spheres and adopt an appropriate posture of respect. On the other hand, administrative decision makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be “justified to citizens in terms of rationality and fairness”: the Rt. Hon. B. McLachlin, “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998), 12 C.J.A.L.P. 171, at p. 174 (emphasis deleted); see also M. Cohen-Eliya and I. Porat, “Proportionality and Justification” (2014), 64 U.T.L.J. 458, at pp. 467-70.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-9", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 15–16", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place. II. Determining the Applicable Standard of Review\n\nIn the following sections, we set out a revised framework for determining the standard of review a court should apply when the merits of an administrative decision are challenged. It starts with a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-10", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 17", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. The general rule of reasonableness review, when coupled with these limited exceptions, offers a comprehensive approach to determining the applicable standard of review. As a result, it is no longer necessary for courts to engage in a “contextual inquiry” (CHRC, at paras. 45-47; see also Dunsmuir, at paras. 62-64; McLean, at para. 22) in order to identify the appropriate standard.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-11", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 18–19", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Before setting out the framework for determining the standard of review in greater detail, we wish to acknowledge that these reasons depart from the Court’s existing jurisprudence on standard of review in certain respects. Any reconsideration such as this can be justified only by compelling circumstances, and we do not take this decision lightly. A decision to adjust course will always require the Court to carefully weigh the impact on legal certainty and predictability against the costs of continuing to follow a flawed approach: see Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 47; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at paras. 24-27; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at paras. 56-57, 129-31 and 139; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at paras. 43-44; R. v. Bernard, [1988] 2 S.C.R. 833, at pp. 849-50.\n\nOn this point, we recall the observation of Gibbs J. in Queensland v. Commonwealth (1977), 139 C.L.R. 585 (H.C.A.), which this Court endorsed in Craig, at para. 26: No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-12", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 20", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Nonetheless, this Court has in the past revisited precedents that were determined to be unsound in principle, that had proven to be unworkable and unnecessarily complex to apply, or that had attracted significant and valid judicial, academic and other criticism: Craig, at paras. 28-30; Henry, at paras. 45-47; Fraser, at para. 135 (per Rothstein J., concurring in the result); Bernard, at pp. 858-59. Although adhering to the established jurisprudence will generally promote certainty and predictability, in some instances doing so will create or perpetuate uncertainty in the law: Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, at p. 528; Bernard, at p. 858; R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 778. In such circumstances, “following the prior decision because of stare decisis would be contrary to the underlying value behind that doctrine, namely, clarity and certainty in the law”: Bernard, at p. 858. These considerations apply here.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-13", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 21", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Certain aspects of the current framework are unclear and unduly complex. The practical effect of this lack of clarity is that courts sometimes struggle in conducting the standard of review analysis, and costly debates surrounding the appropriate standard and its application continue to overshadow the review on the merits in many cases, thereby undermining access to justice. The words of Binnie J. in his concurring reasons in Dunsmuir, at para. 133, are still apt: . . . judicial review is burdened with undue cost and delay. Litigants understandably hesitate to go to court to seek redress for a perceived administrative injustice if their lawyers cannot predict with confidence even what standard of review will be applied. . . . If litigants do take the plunge, they may find the court’s attention focussed not on their complaints, or the government’s response, but on lengthy and arcane discussions of something they are told is [the choice of standard analysis]. . . . A victory before the reviewing court may be overturned on appeal because the wrong “standard of review” was selected. A small business denied a licence or a professional person who wants to challenge disciplinary action should be able to seek judicial review without betting the store or the house on the outcome. Regrettably, we find ourselves in a similar position following Dunsmuir. As Karakatsanis J. observed in Edmonton East, at para. 35, “[t]he contextual approach can generate uncertainty and endless litigation concerning the standard of review”. While counsel and courts attempt to work through the complexities of determining the standard of review and its proper application, litigants “still find the merits waiting in the wings for their chance to be seen and reviewed”: Wilson, at para. 25, per Abella J.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-14", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 22–23", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "As noted in CHRC, this Court “has for years attempted to simplify the standard of review analysis in order to ‘get the parties away from arguing about the tests and back to arguing about the substantive merits of their case’”: para. 27, quoting Alberta Teachers, at para. 36, citing Dunsmuir, at para. 145, per Binnie J. The principled changes set out below seek to promote the values underlying stare decisis and to make the law on the standard of review more certain, coherent and workable going forward. A. Presumption That Reasonableness Is the Applicable Standard\n\nWhere a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decision other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-15", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 24", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Parliament and the provincial legislatures are constitutionally empowered to create administrative bodies and to endow them with broad statutory powers: Dunsmuir, at para. 27. Where a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it. Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. However, because judicial review is protected by s. 96 of the Constitution Act, 1867 , legislatures cannot shield administrative decision making from curial scrutiny entirely: Dunsmuir, at para. 31; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, at pp. 236-37; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1090. Nevertheless, respect for these institutional design choices made by the legislature requires a reviewing court to adopt a posture of restraint on review.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-16", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 25–26", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "For years, this Court’s jurisprudence has moved toward a recognition that the reasonableness standard should be the starting point for a court’s review of an administrative decision. Indeed, a presumption of reasonableness review is already a well-established feature of the standard of review analysis in cases in which administrative decision makers interpret their home statutes: see Alberta Teachers, at para. 30; Saguenay, at para. 46; Edmonton East, at para. 22. In our view, it is now appropriate to hold that whenever a court reviews an administrative decision, it should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. While this presumption applies to the administrative decision maker’s interpretation of its enabling statute, the presumption also applies more broadly to other aspects of its decision.\n\nBefore turning to an explanation of how the presumption of reasonableness review may be rebutted, we believe it is desirable to clarify one aspect of the conceptual basis for this presumption. Since Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 (“C.U.P.E.”), the central rationale for applying a deferential standard of review in administrative law has been a respect for the legislature’s institutional design choice to delegate certain matters to non-judicial decision makers through statute: C.U.P.E., at pp. 235-36. However, this Court has subsequently identified a number of other justifications for applying the reasonableness standard, some of which have taken on influential roles in the standard of review analysis at various times.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-17", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 27", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In particular, the Court has described one rationale for applying the reasonableness standard as being the relative expertise of administrative decision makers with respect to the questions before them: see, e.g., C.U.P.E., at p. 236; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paras. 32-35; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at pp. 591-92; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 50-53; Dunsmuir, at para. 49, quoting D. J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93; see also Dunsmuir, at para. 68. However, this Court’s jurisprudence has sometimes been deeply divided on the question of what expertise entails in the administrative context, how it should be assessed and how it should inform the standard of review analysis: see, e.g., Khosa, at paras. 23-25, per Binnie J. for the majority, compared to paras. 93-96, per Rothstein J., concurring in the result; Edmonton East, at para. 33, per Karakatsanis J. for the majority, compared to paras. 81-86, per Côté and Brown JJ., dissenting. In the era of what was known as the “pragmatic and functional” approach, which was first set out in Bibeault, a decision maker’s expertise relative to that of the reviewing court was one of the key contextual factors said to indicate legislative intent with respect to the standard of review, but the decision maker was not presumed to have relative expertise.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-18", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 27–28", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Instead, whether a decision maker had greater expertise than the reviewing court was assessed in relation to the specific question at issue and on the basis of a contextual analysis that could incorporate factors such as the qualification of an administrative body’s members, their experience in a particular area and their involvement in policy making: see, e.g., Pezim, at pp. 591-92; Southam, at paras. 50-53; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paras. 28-29; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100, at paras. 28-32; Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 50.\n\nUnfortunately, this contextual analysis proved to be unwieldy and offered limited practical guidance for courts attempting to assess an administrative decision maker’s relative expertise. More recently, the dominant approach in this Court has been to accept that expertise simply inheres in an administrative body by virtue of the specialized function designated for it by the legislature: Edmonton East, at para. 33. However, if administrative decision makers are understood to possess specialized expertise on all questions that come before them, the concept of expertise ceases to assist a reviewing court in attempting to distinguish questions for which applying the reasonableness standard is appropriate from those for which it is not.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-19", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 29", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Of course, the fact that the specialized role of administrative decision makers lends itself to the development of expertise and institutional experience is not the only reason that a legislature may choose to delegate decision-making authority. Over the years, the Court has pointed to a number of other compelling rationales for the legislature to delegate the administration of a statutory scheme to a particular administrative decision maker. These rationales have included the decision maker’s proximity and responsiveness to stakeholders, ability to render decisions promptly, flexibly and efficiently, and ability to provide simplified and streamlined proceedings intended to promote access to justice.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-20", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 30", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "While specialized expertise and these other rationales may all be reasons for a legislature to delegate decision-making authority, a reviewing court need not evaluate which of these rationales apply in the case of a particular decision maker in order to determine the standard of review. Instead, in our view, it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review. The Court has in fact recognized this basis for applying the reasonableness standard to administrative decisions in the past. In Khosa, for example, the majority understood Dunsmuir to stand for the proposition that “with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to an administrative decision-maker rather than to the courts”: para. 25. More recently, in Edmonton East, Karakatsanis J. explained that a presumption of reasonableness review “respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts”: para. 22. And in CHRC, Gascon J. explained that “the fact that the legislature has allocated authority to a decision maker other than the courts is itself an indication that the legislature intended deferential review”: para. 50. In other words, respect for this institutional design choice and the democratic principle, as well as the need for courts to avoid “undue interference” with the administrative decision maker’s discharge of its functions, is what justifies the presumptive application of the reasonableness standard: Dunsmuir, at para. 27.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-21", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 31–32", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "We wish to emphasize that because these reasons adopt a presumption of reasonableness as the starting point, expertise is no longer relevant to a determination of the standard of review as it was in the contextual analysis. However, we are not doing away with the role of expertise in administrative decision making. This consideration is simply folded into the new starting point and, as explained below, expertise remains a relevant consideration in conducting reasonableness review.\n\nThat being said, our starting position that the applicable standard of review is reasonableness is not incompatible with the rule of law. However, because this approach is grounded in respect for legislative choice, it also requires courts to give effect to clear legislative direction that a different standard was intended. Similarly, a reviewing court must be prepared to derogate from the presumption of reasonableness review where respect for the rule of law requires a singular, determinate and final answer to the question before it. Each of these situations will be discussed in turn below. B. Derogation From the Presumption of Reasonableness Review on the Basis of Legislative Intent", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-22", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 33", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court has described respect for legislative intent as the “polar star” of judicial review: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 149. This description remains apt. The presumption of reasonableness review discussed above is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts. It follows that this presumption will be rebutted where a legislature has indicated that a different standard should apply. The legislature can do so in two ways. First, it may explicitly prescribe through statute what standard courts should apply when reviewing decisions of a particular administrative decision maker. Second, it may direct that derogation from the presumption of reasonableness review is appropriate by providing for a statutory appeal mechanism from an administrative decision maker to a court, thereby signalling the application of appellate standards. (1) Legislated Standards of Review", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-23", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 34–35", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Any framework rooted in legislative intent must, to the extent possible, respect clear statutory language that prescribes the applicable standard of review. This Court has consistently affirmed that legislated standards of review should be given effect: see, e.g., R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31-32; Khosa, at paras. 18-19; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at para. 20; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at para. 55; McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, [2014] 2 S.C.R. 108, at para. 16; British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25, [2016] 1 S.C.R. 587, at paras. 8 and 29; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795, at para. 28.\n\nIt follows that where a legislature has indicated that courts are to apply the standard of correctness in reviewing certain questions, that standard must be applied. In British Columbia, the legislature has established the applicable standard of review for many tribunals by reference to the Administrative Tribunals Act, S.B.C. 2004, c. 45: see ss. 58 and 59. For example, it has provided that the standard of review applicable to decisions on questions of statutory interpretation by the B.C. Human Rights Tribunal is to be correctness: ibid., s. 59(1); Human Rights Code, R.S.B.C. 1996, c. 210, s. 32. We continue to be of the view that where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law. (2) Statutory Appeal Mechanisms", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-24", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 36", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "We have reaffirmed that, to the extent possible, the standard of review analysis requires courts to give effect to the legislature’s institutional design choices to delegate authority through statute. In our view, this principled position also requires courts to give effect to the legislature’s intent, signalled by the presence of a statutory appeal mechanism from an administrative decision to a court, that the court is to perform an appellate function with respect to that decision. Just as a legislature may, within constitutional limits, insulate administrative decisions from judicial interference, it may also choose to establish a regime “which does not exclude the courts but rather makes them part of the enforcement machinery”: Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, at p. 195. Where a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis. This expressed intention necessarily rebuts the blanket presumption of reasonableness review, which is premised on giving effect to a legislature’s decision to leave certain issues with a body other than a court. This intention should be given effect. As noted by the intervener Attorney General of Quebec in her factum, [translation] “[t]he requirement of deference must not sterilize such an appeal mechanism to the point that it changes the nature of the decision-making process the legislature intended to put in place”: para. 2.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-25", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 37–38", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37. Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute.\n\nWe acknowledge that giving effect to statutory appeal mechanisms in this way departs from the Court’s recent jurisprudence. However, after careful consideration, we are of the view that this shift is necessary in order to bring coherence and conceptual balance to the standard of review analysis and is justified by a weighing of the values of certainty and correctness: Craig, at para. 27. Our conclusion is based on the following considerations.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-26", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 39", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, there has been significant judicial and academic criticism of this Court’s recent approach to statutory appeal rights: see, e.g., Y.-M. Morissette, “What is a ‘reasonable decision’?” (2018), 31 C.J.A.L.P. 225, at p. 244; the Hon. J. T. Robertson, Administrative Deference: The Canadian Doctrine that Continues to Disappoint (April 18, 2018) (online), at p. 8; the Hon. D. Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016), 42 Queen’s L.J. 27, at p. 33; Daly, at pp. 541-42; Québec (Procureure générale) v. Montréal (Ville), 2016 QCCA 2108, 17 Admin. L.R. (6th) 328, at paras. 36-46; Bell Canada v. 7262591 Canada Ltd., 2018 FCA 174, 428 D.L.R. (4th) 311, at paras. 190-92, per Nadon J.A., concurring, and at paras. 66 and 69-72, per Rennie J.A., dissenting; Garneau Community League v. Edmonton (City), 2017 ABCA 374, 60 Alta. L.R. (6th) 1, at paras. 91 and 93-95, per Slatter J.A., concurring; Nova Scotia (Attorney General) v. S&D Smith Central Supplies Limited, 2019 NSCA 22, at paras. 250, 255‑64 and 274‑302 (CanLII), per Beveridge J.A., dissenting; Atlantic Mining NS Corp. (D.D.V. Gold Limited) v. Oakley, 2019 NSCA 14, at paras. 9-14 (CanLII). These critiques seize on the inconsistency inherent in a standard of review framework based on legislative intent that otherwise declines to give meaning to an express statutory right of appeal. This criticism observes that legislative choice is not one-dimensional; rather, it pulls in two directions. While a legislative choice to delegate to an administrative decision maker grounds a presumption of reasonableness on the one hand, a legislative choice to enact a statutory right of appeal signals an intention to ascribe an appellate role to reviewing courts on the other hand.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-27", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 40", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court has in the past held that the existence of significant and valid judicial, academic and other criticism of its jurisprudence may justify reconsideration of a precedent: Craig, at para. 29; R. v. Robinson, [1996] 1 S.C.R. 683, at paras. 35-41. This consideration applies in the instant case. In particular, the suggestion that the recent treatment of statutory rights of appeal represents a departure from the conceptual basis underpinning the standard of review framework is itself a compelling reason to re-examine the current approach: Khosa, at para. 87, per Rothstein J., concurring in the result.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-28", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 41", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, there is no satisfactory justification for the recent trend in this Court’s jurisprudence to give no effect to statutory rights of appeal in the standard of review analysis absent exceptional wording: see Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161, at paras. 35-39. Indeed, this approach is itself a departure from earlier jurisprudence: the Hon. J. T. Robertson, “Judicial Deference to Administrative Tribunals: A Guide to 60 Years of Supreme Court Jurisprudence” (2014), 66 S.C.L.R. (2d) 1, at pp. 91-93. Under the former “pragmatic and functional” approach to determining the applicable standard of review, the existence of a privative clause or a statutory right of appeal was one of four contextual factors that a court would consider in order to determine the standard that the legislature intended to apply to a particular decision. Although a statutory appeal clause was not determinative, it was understood to be a key factor indicating that the legislature intended that a less deferential standard of review be applied: see, e.g., Pezim, at pp. 589-92; British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739, at paras. 28-31; Southam, at paras. 30-32, 46 and 54-55; Pushpanathan, at paras. 30-31; Dr. Q, at para. 27; Mattel, at paras. 26-27; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 21 and 27-29; Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476, at para. 11; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 7.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-29", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 42–43", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court did indeed sometimes find that, even in a statutory appeal, a deferential standard of review was warranted for the legal findings of a decision maker that lay at the heart of the decision maker’s expertise: see, e.g., Pezim. In other instances, however, the Court concluded that the existence of a statutory appeal mechanism and the fact that the decision maker did not have greater expertise than a court on the issue being considered indicated that correctness was the appropriate standard, including on matters involving the interpretation of the administrative decision maker’s home statute: see, e.g., Mattel, at paras. 26-33; Barrie Public Utilities, at paras. 9-19; Monsanto, at paras. 6-16.\n\nYet as, in Dunsmuir, Alberta Teachers, Edmonton East and subsequent cases, the standard of review analysis was simplified and shifted from a contextual analysis to an approach more focused on categories, statutory appeal mechanisms ceased to play a role in the analysis. Although this simplification of the standard of review analysis may have been a laudable change, it did not justify ceasing to give any effect to statutory appeal mechanisms. Dunsmuir itself provides little guidance on the rationale for this change. The majority in Dunsmuir was silent on the role of a statutory right of appeal in determining the standard of review, and did not refer to the prior treatment of statutory rights of appeal under the pragmatic and functional approach.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-30", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 44", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "More generally, there is no convincing reason to presume that legislatures mean something entirely different when they use the word “appeal” in an administrative law statute than they do in, for example, a criminal or commercial law context. Accepting that the word “appeal” refers to the same type of procedure in all these contexts also accords with the presumption of consistent expression, according to which the legislature is presumed to use language such that the same words have the same meaning both within a statute and across statutes: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 217. Accepting that the legislature intends an appellate standard of review to be applied when it uses the word “appeal” also helps to explain why many statutes provide for both appeal and judicial review mechanisms in different contexts, thereby indicating two roles for reviewing courts: see, e.g., Federal Courts Act , R.S.C. 1985, c. F-7, ss. 27 and 28 . This offers further support for giving effect to statutory rights of appeal. Our colleagues’ suggestion that our position in this regard “hinges” on what they call a “textualist argument” (at para. 246) is inaccurate.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-31", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 45", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "That there is no principled rationale for ignoring statutory appeal mechanisms becomes obvious when the broader context of those mechanisms is considered. The existence of a limited right of appeal, such as a right of appeal on questions of law or a right of appeal with leave of a court, does not preclude a court from considering other aspects of a decision in a judicial review proceeding. However, if the same standards of review applied regardless of whether a question was covered by the appeal provision, and regardless of whether an individual subject to an administrative decision was granted leave to appeal or applied for judicial review, the appeal provision would be completely redundant — contrary to the well-established principle that the legislature does not speak in vain: Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831, at p. 838.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-32", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 46", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, and most crucially, the appeals now before the Court have allowed for a comprehensive and considered examination of the standard of review analysis with the goal of remedying the conceptual and practical difficulties that have made this area of the law challenging for litigants and courts alike. To achieve this goal, the revised framework must, for at least two reasons, give effect to statutory appeal mechanisms. The first reason is conceptual. In the past, this Court has looked past an appeal clause primarily when the decision maker possessed greater relative expertise — what it called the “specialization of duties” principle in Pezim, at p. 591. But, as discussed above, the presumption of reasonableness review is no longer premised upon notions of relative expertise. Instead, it is now based on respect for the legislature’s institutional design choice, according to which the authority to make a decision is vested in an administrative decision maker rather than in a court. It would be inconsistent with this conceptual basis for the presumption of reasonableness review to disregard clear indications that the legislature has intentionally chosen a more involved role for the courts. Just as recognizing a presumption of reasonableness review on all questions respects a legislature’s choice to leave some matters first and foremost to an administrative decision maker, departing from that blanket presumption in the context of a statutory appeal respects the legislature’s choice of a more involved role for the courts in supervising administrative decision making.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-33", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 47", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The second reason is that, building on developments in the case law over the past several years, this decision conclusively closes the door on the application of a contextual analysis to determine the applicable standard, and in doing so streamlines and simplifies the standard of review framework. With the elimination of the contextual approach to selecting the standard of review, the need for statutory rights of appeal to play a role becomes clearer. Eliminating the contextual approach means that statutory rights of appeal must now either play no role in administrative law or be accepted as directing a departure from the default position of reasonableness review. The latter must prevail.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-34", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 48", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Our colleagues agree that the time has come to put the contextual approach espoused in Dunsmuir to rest and adopt a presumption of reasonableness review. We part company on the extent to which the departure from the contextual approach requires corresponding modifications to other aspects of the standard of review jurisprudence. We consider that the elimination of the contextual approach represents an incremental yet important adjustment to Canada’s judicial review roots. While it is true that this Court has, in the past several years of jurisprudential development, warned that the contextual approach should be applied “sparingly” (CHRC, at para. 46), it is incorrect to suggest that our jurisprudence was such that the elimination of the contextual analysis was “all but complete”: reasons of Abella and Karakatsanis JJ., at para. 277; see, in this regard, CHRC, at paras. 44-54; Saguenay, at para. 46; Tervita, at para. 35; McLean, at para. 22; Edmonton East, at para. 32; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at para. 15. The contextual analysis was one part of the broader standard of review framework set out in Dunsmuir. A departure from this aspect of the Dunsmuir framework requires a principled rebalancing of the framework as a whole in order to maintain the equilibrium between the roles of administrative decision makers and reviewing courts that is fundamental to administrative law.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-35", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 49–50", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In our view, with the starting position of this presumption of reasonableness review, and in the absence of a searching contextual analysis, legislative intent can only be given effect in this framework if statutory appeal mechanisms, as clear signals of legislative intent with respect to the applicable standard of review, are given effect through the application of appellate standards by reviewing courts. Conversely, in such a framework that is based on a presumption of reasonableness review, contextual factors that courts once looked to as signalling deferential review, such as privative clauses, serve no independent or additional function in identifying the standard of review.\n\nWe wish, at this juncture, to make three points regarding how the presence of a statutory appeal mechanism should inform the choice of standard analysis. First, we note that statutory regimes that provide for parties to appeal to a court from an administrative decision may allow them to do so in all cases (that is, as of right) or only with leave of the court. While the existence of a leave requirement will affect whether a court will hear an appeal from a particular decision, it does not affect the standard to be applied if leave is given and the appeal is heard.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-36", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 51", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, we note that not all legislative provisions that contemplate a court reviewing an administrative decision actually provide a right of appeal. Some provisions simply recognize that all administrative decisions are subject to judicial review and address procedural or other similar aspects of judicial review in a particular context. Since these provisions do not give courts an appellate function, they do not authorize the application of appellate standards. Some examples of such provisions are ss. 18 to 18.2 , 18.4 and 28 of the Federal Courts Act , which confer jurisdiction on the Federal Court and the Federal Court of Appeal to hear and determine applications for judicial review of decisions of federal bodies and grant remedies, and also address procedural aspects of such applications: see Khosa, at para. 34. Another example is the current version of s. 470 of Alberta’s Municipal Government Act, R.S.A. 2000, c. M-26, which does not provide for an appeal to a court, but addresses procedural considerations and consequences that apply “[w]here a decision of an assessment review board is the subject of an application for judicial review”: s. 470(1).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-37", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 52–53", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Third, we would note that statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism. C. The Applicable Standard Is Correctness Where Required by the Rule of Law\n\nIn our view, respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies. The application of the correctness standard for such questions respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary: Dunsmuir, at para. 58.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-38", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 54–56", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view: Dunsmuir, at para. 50. While it should take the administrative decision maker’s reasoning into account — and indeed, it may find that reasoning persuasive and adopt it — the reviewing court is ultimately empowered to come to its own conclusions on the question. (1) Constitutional Questions\n\nQuestions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982 , and other constitutional matters require a final and determinate answer from the courts. Therefore, the standard of correctness must continue to be applied in reviewing such questions: Dunsmuir, at para. 58; Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322.\n\nThe Constitution — both written and unwritten — dictates the limits of all state action. Legislatures and administrative decision makers are bound by the Constitution and must comply with it. A legislature cannot alter the scope of its own constitutional powers through statute. Nor can it alter the constitutional limits of executive power by delegating authority to an administrative body. In other words, although a legislature may choose what powers it delegates to an administrative body, it cannot delegate powers that it does not constitutionally have. The constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-39", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 57", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although the amici questioned the approach to the standard of review set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, a reconsideration of that approach is not germane to the issues in this appeal. However, it is important to draw a distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms (as was the case in Doré) and those in which the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter (see, e.g., Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 65). Our jurisprudence holds that an administrative decision maker’s interpretation of the latter issue should be reviewed for correctness, and that jurisprudence is not displaced by these reasons. (2) General Questions of Law of Central Importance to the Legal System as a Whole", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-40", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 58", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Dunsmuir, a majority of the Court held that, in addition to constitutional questions, general questions of law which are “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” will require the application of the correctness standard: para. 60, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62, per LeBel J., concurring. We remain of the view that the rule of law requires courts to have the final word with regard to general questions of law that are “of central importance to the legal system as a whole”. However, a return to first principles reveals that it is not necessary to evaluate the decision maker’s specialized expertise in order to determine whether the correctness standard must be applied in cases involving such questions. As indicated above (at para. 31) of the reasons, the consideration of expertise is folded into the new starting point adopted in these reasons, namely the presumption of reasonableness review.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-41", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 59", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "As the majority of the Court recognized in Dunsmuir, the key underlying rationale for this category of questions is the reality that certain general questions of law “require uniform and consistent answers” as a result of “their impact on the administration of justice as a whole”: Dunsmuir, at para. 60. In these cases, correctness review is necessary to resolve general questions of law that are of “fundamental importance and broad applicability”, with significant legal consequences for the justice system as a whole or for other institutions of government: see Toronto (City), at para. 70; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at para. 20; Canadian National Railway, at para. 60; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687, at para. 17; Saguenay, at para. 51; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (“Mowat”), at para. 22; Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29, at para. 38. For example, the question in University of Calgary could not be resolved by applying the reasonableness standard, because the decision would have had legal implications for a wide variety of other statutes and because the uniform protection of solicitor-client privilege — at issue in that case — is necessary for the proper functioning of the justice system: University of Calgary, at paras. 19-26. As this shows, the resolution of general questions of law “of central importance to the legal system as a whole” has implications beyond the decision at hand, hence the need for “uniform and consistent answers”.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-42", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 60", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court’s jurisprudence continues to provide important guidance regarding what constitutes a general question of law of central importance to the legal system as a whole. For example, the following general questions of law have been held to be of central importance to the legal system as a whole: when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process (Toronto (City), at para. 15); the scope of the state’s duty of religious neutrality (Saguenay, at para. 49); the appropriateness of limits on solicitor-client privilege (University of Calgary, at para. 20); and the scope of parliamentary privilege (Chagnon, at para. 17). We caution, however, that this jurisprudence must be read carefully, given that expertise is no longer a consideration in identifying such questions: see, e.g., CHRC, at para. 43.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-43", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 61", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "We would stress that the mere fact that a dispute is “of wider public concern” is not sufficient for a question to fall into this category — nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue: see, e.g., Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 66; McLean, at para. 28; Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488, at para. 18. The case law reveals many examples of questions this Court has concluded are not general questions of law of central importance to the legal system as a whole. These include whether a certain tribunal can grant a particular type of compensation (Mowat, at para. 25); when estoppel may be applied as an arbitral remedy (Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 37-38); the interpretation of a statutory provision prescribing timelines for an investigation (Alberta Teachers, at para. 32); the scope of a management rights clause in a collective agreement (Irving Pulp & Paper, at paras. 7, 15-16 and 66, per Rothstein and Moldaver JJ., dissenting but not on this point); whether a limitation period had been triggered under securities legislation (McLean, at paras. 28-31); whether a party to a confidential contract could bring a complaint under a particular regulatory regime (Canadian National Railway, at para. 60); and the scope of an exception allowing non-advocates to represent a minister in certain proceedings (Barreau du Québec, at paras. 17-18).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-44", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 61–63", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "As these comments and examples indicate, this does not mean that simply because expertise no longer plays a role in the selection of the standard of review, questions of central importance are now transformed into a broad catch-all category for correctness review.\n\nIn short, general questions of law of central importance to the legal system as a whole require a single determinate answer. In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows. (3) Questions Regarding the Jurisdictional Boundaries Between Two or More Administrative Bodies\n\nFinally, the rule of law requires that the correctness standard be applied in order to resolve questions regarding the jurisdictional boundaries between two or more administrative bodies: Dunsmuir, at para. 61. One such question arose in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, in which the issue was the jurisdiction of a labour arbitrator to consider matters of police discipline and dismissal that were otherwise subject to a comprehensive legislative regime. Similarly, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185, the Court considered a jurisdictional dispute between a labour arbitrator and the Quebec Human Rights Tribunal.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-45", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 64", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Administrative decisions are rarely contested on this basis. Where they are, however, the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another. The rationale for this category of questions is simple: the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions: see British Columbia Telephone Co., at para. 80, per McLachlin J. (as she then was), concurring. Members of the public must know where to turn in order to resolve a dispute. As with general questions of law of central importance to the legal system as a whole, the application of the correctness standard in these cases safeguards predictability, finality and certainty in the law of administrative decision making. D. A Note Regarding Jurisdictional Questions", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-46", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 65", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "We would cease to recognize jurisdictional questions as a distinct category attracting correctness review. The majority in Dunsmuir held that it was “without question” (para. 50) that the correctness standard must be applied in reviewing jurisdictional questions (also referred to as true questions of jurisdiction or vires). True questions of jurisdiction were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”: see Dunsmuir, at para. 59; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3, at para. 32. Since Dunsmuir, however, majorities of this Court have questioned the necessity of this category, struggled to articulate its scope and “expressed serious reservations about whether such questions can be distinguished as a separate category of questions of law”: McLean, at para. 25, referring to Alberta Teachers, at para. 34; Edmonton East, at para. 26; Guérin, at paras. 32-36; CHRC, at paras. 31-41.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-47", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 66", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "As Gascon J. noted in CHRC, the concept of “jurisdiction” in the administrative law context is inherently “slippery”: para. 38. This is because, in theory, any challenge to an administrative decision can be characterized as “jurisdictional” in the sense that it calls into question whether the decision maker had the authority to act as it did: see CHRC, at para. 38; Alberta Teachers, at para. 34; see similarly City of Arlington, Texas v. Federal Communications Commission, 569 U.S. 290 (2013), at p. 299. Although this Court’s jurisprudence contemplates that only a much narrower class of “truly” jurisdictional questions requires correctness review, it has observed that there are no “clear markers” to distinguish such questions from other questions related to the interpretation of an administrative decision maker’s enabling statute: see CHRC, at para. 38. Despite differing views on whether it is possible to demarcate a class of “truly” jurisdictional questions, there is general agreement that “it is often difficult to distinguish between exercises of delegated power that raise truly jurisdictional questions from those entailing an unremarkable application of an enabling statute”: CHRC, at para. 111, per Brown J., concurring. This tension is perhaps clearest in cases where the legislature has delegated broad authority to an administrative decision maker that allows the latter to make regulations in pursuit of the objects of its enabling statute: see, e.g., Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-48", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 67", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In CHRC, the majority, while noting this inherent difficulty — and the negative impact on litigants of the resulting uncertainty in the law — nonetheless left the question of whether the category of true questions of jurisdiction remains necessary to be determined in a later case. After hearing submissions on this issue and having an adequate opportunity for reflection on this point, we are now in a position to conclude that it is not necessary to maintain this category of correctness review. The arguments that support maintaining this category — in particular the concern that a delegated decision maker should not be free to determine the scope of its own authority — can be addressed adequately by applying the framework for conducting reasonableness review that we describe below. Reasonableness review is both robust and responsive to context. A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority without having to conduct a preliminary assessment regarding whether a particular interpretation raises a “truly” or “narrowly” jurisdictional issue and without having to apply the correctness standard.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-49", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 68", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where the reasonableness standard is applied in reviewing a decision maker’s interpretation of its authority, precise or narrow statutory language will necessarily limit the number of reasonable interpretations open to the decision maker — perhaps limiting it to one. Conversely, where the legislature has afforded a decision maker broad powers in general terms — and has provided no right of appeal to a court — the legislature’s intention that the decision maker have greater leeway in interpreting its enabling statute should be given effect. Without seeking to import the U.S. jurisprudence on this issue wholesale, we find that the following comments of the Supreme Court of the United States in Arlington, at p. 307, are apt: The fox-in-­the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision-making that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority. Where [the legislature] has estab­lished a clear line, the agency cannot go beyond it; and where [the legislature] has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is “jurisdictional”. E.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-50", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 68–69", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Other Circumstances Requiring a Derogation From the Presumption of Reasonableness Review\n\nIn these reasons, we have identified five situations in which a derogation from the presumption of reasonableness review is warranted either on the basis of legislative intent (i.e., legislated standards of review and statutory appeal mechanisms) or because correctness review is required by the rule of law (i.e., constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding jurisdictional boundaries between administrative bodies). This framework is the product of careful consideration undertaken following extensive submissions and based on a thorough review of the relevant jurisprudence. We are of the view, at this time, that these reasons address all of the situations in which a reviewing court should derogate from the presumption of reasonableness review. As previously indicated, courts should no longer engage in a contextual inquiry to determine the standard of review or to rebut the presumption of reasonableness review. Letting go of this contextual approach will, we hope, “get the parties away from arguing about the tests and back to arguing about the substantive merits of their case”: Alberta Teachers, at para. 36, quoting Dunsmuir, at para. 145, per Binnie J., concurring.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-51", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 70", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, we would not definitively foreclose the possibility that another category could be recognized as requiring a derogation from the presumption of reasonableness review in a future case. But our reluctance to pronounce that the list of exceptions to the application of a reasonableness standard is closed should not be understood as inviting the routine establishment of new categories requiring correctness review. Rather, it is a recognition that it would be unrealistic to declare that we have contemplated every possible set of circumstances in which legislative intent or the rule of law will require a derogation from the presumption of reasonableness review. That being said, the recognition of any new basis for correctness review would be exceptional and would need to be consistent with the framework and the overarching principles set out in these reasons. In other words, any new category warranting a derogation from the presumption of reasonableness review on the basis of legislative intent would require a signal of legislative intent as strong and compelling as those identified in these reasons (i.e., a legislated standard of review or a statutory appeal mechanism). Similarly, the recognition of a new category of questions requiring correctness review that is based on the rule of law would be justified only where failure to apply correctness review would undermine the rule of law and jeopardize the proper functioning of the justice system in a manner analogous to the three situations described in these reasons.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-52", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 71", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The amici curiae suggest that, in addition to the three categories of legal questions identified above, the Court should recognize an additional category of legal questions that would require correctness review on the basis of the rule of law: legal questions regarding which there is persistent discord or internal disagreement within an administrative body leading to legal incoherence. They argue that correctness review is necessary in such situations because the rule of law breaks down where legal inconsistency becomes the norm and the law’s meaning comes to depend on the identity of the decision maker. The amici curiae submit that, where competing reasonable legal interpretations linger over time at the administrative level — such that a statute comes to mean, simultaneously, both “yes” and “no” — the courts must step in to provide a determinative answer to the question without according deference to the administrative decision maker: factum of the amici curiae, at para. 91.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-53", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 72", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "We are not persuaded that the Court should recognize a distinct correctness category for legal questions on which there is persistent discord within an administrative body. In Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, this Court held that “a lack of unanimity [within a tribunal] is the price to pay for the decision-making freedom and independence given to the members of these tribunals”: p. 800; see also Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 28. That said, we agree that the hypothetical scenario suggested by the amici curiae — in which the law’s meaning depends on the identity of the individual decision maker, thereby leading to legal incoherence — is antithetical to the rule of law. In our view, however, the more robust form of reasonableness review set out below, which accounts for the value of consistency and the threat of arbitrariness, is capable, in tandem with internal administrative processes to promote consistency and with legislative oversight (see Domtar, at p. 801), of guarding against threats to the rule of law. Moreover, the precise point at which internal discord on a point of law would be so serious, persistent and unresolvable that the resulting situation would amount to “legal incoherence” and require a court to step in is not obvious. Given these practical difficulties, this Court’s binding jurisprudence and the hypothetical nature of the problem, we decline to recognize such a category in this appeal. III. Performing Reasonableness Review", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-54", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 73–76", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court’s administrative law jurisprudence has historically focused on the analytical framework used to determine the applicable standard of review, while providing relatively little guidance on how to conduct reasonableness review in practice.\n\nIn this section of our reasons, we endeavour to provide that guidance. The approach we set out is one that focuses on justification, offers methodological consistency and reinforces the principle “that reasoned decision-making is the lynchpin of institutional legitimacy”: factum of the amici curiae, at para. 12.\n\nWe pause to note that our colleagues’ approach to reasonableness review is not fundamentally dissimilar to ours. Our colleagues emphasize that reviewing courts should respect administrative decision makers and their specialized expertise, should not ask how they themselves would have resolved an issue and should focus on whether the applicant has demonstrated that the decision is unreasonable: paras. 288, 289 and 291. We agree. As we have stated above, at para. 13, reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision makers. Moreover, as explained below, reasonableness review considers all relevant circumstances in order to determine whether the applicant has met their onus. A. Procedural Fairness and Substantive Review\n\nBefore turning to a discussion of the proposed approach to reasonableness review, we pause to acknowledge that the requirements of the duty of procedural fairness in a given case — and in particular whether that duty requires a decision maker to give reasons for its decision — will impact how a court conducts reasonableness review.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-55", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 77", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is well established that, as a matter of procedural fairness, reasons are not required for all administrative decisions. The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 22-23; Moreau-Bérubé, at paras. 74‑75; Dunsmuir, at para. 79. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Baker, at para. 21. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker, at paras. 23-27; see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, at para. 5. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal: Baker, at para. 43; D. J. M. Brown and the Hon. J. M. Evans, with the assistance of D.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-56", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 77–79", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), vol. 3, at p. 12-54.\n\nIn the case at bar and in its companion cases, reasons for the administrative decisions at issue were both required and provided. Our discussion of the proper approach to reasonableness review will therefore focus on the circumstances in which reasons for an administrative decision are required and available to the reviewing court.\n\nNotwithstanding the important differences between the administrative context and the judicial context, reasons generally serve many of the same purposes in the former as in the latter: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15 and 22-23. Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power: Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at paras. 12-13. As L’Heureux-Dubé J. noted in Baker, “[t]hose affected may be more likely to feel they were treated fairly and appropriately if reasons are given”: para. 39, citing S. A. de Smith, J. Jowell and Lord Woolf, Judicial Review of Administrative Action (5th ed. 1995), at pp. 459-60. And as Jocelyn Stacey and the Hon. Alice Woolley persuasively write, “public decisions gain their democratic and legal authority through a process of public justification” which includes reasons “that justify [the] decisions [of public decision makers] in light of the constitutional, statutory and common law context in which they operate”: “Can Pragmatism Function in Administrative Law?” (2016), 74 S.C.L.R. (2d) 211, at p. 220.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-57", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 80–81", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The process of drafting reasons also necessarily encourages administrative decision makers to more carefully examine their own thinking and to better articulate their analysis in the process: Baker, at para. 39. This is what Justice Sharpe describes — albeit in the judicial context — as the “discipline of reasons”: Good Judgment: Making Judicial Decisions (2018), at p. 134; see also Sheppard, at para. 23.\n\nReasons facilitate meaningful judicial review by shedding light on the rationale for a decision: Baker, at para. 39. In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the Court reaffirmed that “the purpose of reasons, when they are required, is to demonstrate ‘justification, transparency and intelligibility’”: para. 1, quoting Dunsmuir, at para. 47; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 126. The starting point for our analysis is therefore that where reasons are required, they are the primary mechanism by which administrative decision makers show that their decisions are reasonable — both to the affected parties and to the reviewing courts. It follows that the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable. B. Reasonableness Review Is Concerned With the Decision-making Process and Its Outcomes", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-58", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 82–83", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Reasonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law: see Dunsmuir, at paras. 27-28 and 48; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 10; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 10.\n\nIt follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: para. 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-59", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 84–85", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion: see Dunsmuir, at para. 48, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286.\n\nDeveloping an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable. As we will explain in greater detail below, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-60", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 86", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir, at paras. 47-49. In Dunsmuir, this Court explicitly stated that the court conducting a reasonableness review is concerned with “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: para. 47. Reasonableness, according to Dunsmuir, “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: ibid. In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-61", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 87", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court’s jurisprudence since Dunsmuir should not be understood as having shifted the focus of reasonableness review away from a concern with the reasoning process and toward a nearly exclusive focus on the outcome of the administrative decision under review. Indeed, that a court conducting a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome was recently reaffirmed in Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6, at para. 12. In that case, although the outcome of the decision at issue may not have been unreasonable in the circumstances, the decision was set aside because the outcome had been arrived at on the basis of an unreasonable chain of analysis. This approach is consistent with the direction in Dunsmuir that judicial review is concerned with both outcome and process. To accept otherwise would undermine, rather than demonstrate respect toward, the institutional role of the administrative decision maker. C. Reasonableness Is a Single Standard That Accounts for Context", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-62", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 88–89", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In any attempt to develop a coherent and unified approach to judicial review, the sheer variety of decisions and decision makers that such an approach must account for poses an inescapable challenge. The administrative decision makers whose decisions may be subject to judicial review include specialized tribunals exercising adjudicative functions, independent regulatory bodies, ministers, front-line decision makers, and more. Their decisions vary in complexity and importance, ranging from the routine to the life-altering. These include matters of “high policy” on the one hand and “pure law” on the other. Such decisions will sometimes involve complex technical considerations. At other times, common sense and ordinary logic will suffice.\n\nDespite this diversity, reasonableness remains a single standard, and elements of a decision’s context do not modulate the standard or the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case. This is what it means to say that “[r]easonableness is a single standard that takes its colour from the context”: Khosa, at para. 59; Catalyst, at para. 18; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at para. 44; Wilson, at para. 22, per Abella J.; Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80, at para. 57, per Côté J., dissenting but not on this point; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 53.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-63", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 90–91", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The approach to reasonableness review that we articulate in these reasons accounts for the diversity of administrative decision making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt. The fact that the contextual constraints operating on an administrative decision maker may vary from one decision to another does not pose a problem for the reasonableness standard, because each decision must be both justified by the administrative body and evaluated by reviewing courts in relation to its own particular context. D. Formal Reasons for a Decision Should Be Read in Light of the Record and With Due Sensitivity to the Administrative Setting in Which They Were Given\n\nA reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside: Newfoundland Nurses, at para. 16. The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-64", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 92–93", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice”, and reviewing courts must remain acutely aware of that fact.\n\nAn administrative decision maker may demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear: see Dunsmuir, at para. 49. In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-65", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 94–95", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well-established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretation set out in a public interpretive policy of the administrative body of which he or she is a member.\n\nThat being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it. It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-66", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 96", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision. Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines, at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion. This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-67", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 97", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Indeed, Newfoundland Nurses is far from holding that a decision maker’s grounds or rationale for a decision is irrelevant. It instead tells us that close attention must be paid to a decision maker’s written reasons and that they must be read holistically and contextually, for the very purpose of understanding the basis on which a decision was made. We agree with the observations of Rennie J. in Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267, at para. 11: Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-68", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 98", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "As for Alberta Teachers, it concerned a very specific and exceptional circumstance in which the reviewing court had exercised its discretion to consider a question of statutory interpretation on judicial review, even though that question had not been raised before the administrative decision maker and, as a result, no reasons had been given on that issue: paras. 22-26. Furthermore, it was agreed that the ultimate decision maker — the Information and Privacy Commissioner’s delegate — had applied a well-established interpretation of the statutory provision in question and that, had she been asked for reasons to justify her interpretation, she would have adopted reasons the Commissioner had given in past decisions. In other words, the reasons of the Commissioner that this Court relied on to find that the administrative decision was reasonable were not merely reasons that could have been offered, in an abstract sense, but reasons that would have been offered had the issue been raised before the decision maker. Far from suggesting in Alberta Teachers that reasonableness review is concerned primarily with outcome, as opposed to rationale, this Court rejected the position that a reviewing court is entitled to “reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favour of the court’s own rationale for the result”: para. 54, quoting Petro-Canada v. British Columbia (Workers’ Compensation Board), 2009 BCCA 396, 276 B.C.A.C. 135, at paras. 53 and 56.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-69", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 98–99", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Alberta Teachers, this Court also reaffirmed the importance of giving proper reasons and reiterated that “deference under the reasonableness standard is best given effect when administrative decision makers provide intelligible and transparent justification for their decisions, and when courts ground their review of the decision in the reasons provided”: para. 54. Where a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility. E. A Reasonable Decision Is One That Is Both Based on an Internally Coherent Reasoning and Justified in Light of the Legal and Factual Constraints That Bear on the Decision\n\nA reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir, at paras. 47 and 74; Catalyst, at para. 13.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-70", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 100–101", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.\n\nWhat makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. There is, however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. (1) A Reasonable Decision Is Based on an Internally Coherent Reasoning", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-71", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 102", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”: Irving Pulp & Paper, at para. 54, citing Newfoundland Nurses, at para. 14. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Ryan, at para. 55; Southam, at para. 56. Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment”: R. A. Macdonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123, at p. 139; see also Gonzalez v. Canada (Minister of Citizenship and Immigration), 2014 FC 750, 27 Imm. L.R. (4th) 151, at paras. 57-59.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-72", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 103–104", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "While, as we indicated earlier (at paras. 89-96), formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis: see Wright v. Nova Scotia (Human Rights Commission), 2017 NSSC 11, 23 Admin. L.R. (6th) 110; Southam, at para. 56. A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken (see Sangmo v. Canada (Minister of Citizenship and Immigration), 2016 FC 17, at para. 21 (CanLII)) or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point (see Blas v. Canada (Minister of Citizenship and Immigration), 2014 FC 629, 26 Imm. L.R. (4th) 92, at paras. 54-66; Reid v. Criminal Injuries Compensation Board, 2015 ONSC 6578; Lloyd v. Canada (Attorney General), 2016 FCA 115, 2016 D.T.C. 5051; Taman v. Canada (Attorney General), 2017 FCA 1, [2017] 3 F.C.R. 520, at para. 47).\n\nSimilarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”. (2) A Reasonable Decision Is Justified in Light of the Legal and Factual Constraints That Bear on the Decision", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-73", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 105–106", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.\n\nIt is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case. However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely: the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-74", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 107", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "A reviewing court may find that a decision is unreasonable when examined against these contextual considerations. These elements necessarily interact with one another: for example, a reasonable penalty for professional misconduct in a given case must be justified both with respect to the types of penalties prescribed by the relevant legislation and with respect to the nature of the underlying misconduct. (a) Governing Statutory Scheme", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-75", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 108", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision. That administrative decision makers play a role, along with courts, in elaborating the precise content of the administrative schemes they administer should not be taken to mean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures. Thus, for example, while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply “with the rationale and purview of the statutory scheme under which it is adopted”: Catalyst, at paras. 15 and 25-28; see also Green, at para. 44. As Rand J. noted in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140, “there is no such thing as absolute and untrammelled ‘discretion’”, and any exercise of discretion must accord with the purposes for which it was given: see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 7; Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427, at paras. 32-33; Nor-Man Regional Health Authority, at para. 6. Likewise, a decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203, at paras. 38-40.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-76", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 108–109", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The statutory scheme also informs the acceptable approaches to decision making: for example, where a decision maker is given wide discretion, it would be unreasonable for it to fetter that discretion: see Delta Air Lines, at para. 18.\n\nAs stated above, a proper application of the reasonableness standard is capable of allaying the concern that an administrative decision maker might interpret the scope of its own authority beyond what the legislature intended. As a result, there is no need to maintain a category of “truly” jurisdictional questions that are subject to correctness review. Although a decision maker’s interpretation of its statutory grant of authority is generally entitled to deference, the decision maker must nonetheless properly justify that interpretation. Reasonableness review does not allow administrative decision makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it. Contrary to our colleagues’ concern (at para. 285), this does not reintroduce the concept of “jurisdictional error” into judicial review, but merely identifies one of the obvious and necessary constraints imposed on administrative decision makers.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-77", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 110", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Whether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority. If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. Other language will fall in the middle of this spectrum. All of this is to say that certain questions relating to the scope of a decision maker’s authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting. (b) Other Statutory or Common Law", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-78", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 111", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is evident that both statutory and common law will impose constraints on how and what an administrative decision maker can lawfully decide: see Dunsmuir, at paras. 47 and 74. For example, an administrative decision maker interpreting the scope of its regulation-making authority in order to exercise that authority cannot adopt an interpretation that is inconsistent with applicable common law principles regarding the nature of statutory powers: see Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at paras. 45-48. Neither can a body instructed by legislation to determine what tax rate is applicable in accordance with an existing tax system ignore that system and base its determination on a “fictitious” system it has arbitrarily created: Montréal (City), at para. 40. Where a relationship is governed by private law, it would be unreasonable for a decision maker to ignore that law in adjudicating parties’ rights within that relationship: Dunsmuir, at para. 74. Similarly, where the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard: see, e.g., the discussion of “reasonable grounds to suspect” in Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006, at paras. 93-98.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-79", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 112", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent. The decision maker would have to be able to explain why a different interpretation is preferable by, for example, explaining why the court’s interpretation does not work in the administrative context: M. Biddulph, “Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law” (2018), 56 Alta. L.R. 119, at p. 146. There may be circumstances in which it is quite simply unreasonable for an administrative decision maker to fail to apply or interpret a statutory provision in accordance with a binding precedent. For instance, where an immigration tribunal is required to determine whether an applicant’s act would constitute a criminal offence under Canadian law (see, e.g., Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 35 to 37 ), it would clearly not be reasonable for the tribunal to adopt an interpretation of a criminal law provision that is inconsistent with how Canadian criminal courts have interpreted it.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-80", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 113–114", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "That being said, administrative decision makers will not necessarily be required to apply equitable and common law principles in the same manner as courts in order for their decisions to be reasonable. For example, it may be reasonable for a decision maker to adapt a common law or equitable doctrine to its administrative context: see Nor-Man Regional Health Authority, at paras. 5-6, 44-45, 52, 54 and 60. Conversely, a decision maker that rigidly applies a common law doctrine without adapting it to the relevant administrative context may be acting unreasonably: see Delta Air Lines, at paras. 16-17 and 30. In short, whether an administrative decision maker has acted reasonably in adapting a legal or equitable doctrine involves a highly context-specific determination.\n\nWe would also note that in some administrative decision making contexts, international law will operate as an important constraint on an administrative decision maker. It is well established that legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with the values and principles of customary and conventional international law”: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 40. Since Baker, it has also been clear that international treaties and conventions, even where they have not been implemented domestically by statute, can help to inform whether a decision was a reasonable exercise of administrative power: Baker, at paras. 69-71. (c) Principles of Statutory Interpretation", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-81", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 115–116", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Although the general approach to reasonableness review described above applies in such cases, we recognize that it is necessary to provide additional guidance to reviewing courts on this point. This is because reviewing courts are accustomed to resolving questions of statutory interpretation in a context in which the issue is before them at first instance or on appeal, and where they are expected to perform their own independent analysis and come to their own conclusions.\n\nReasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”: Ryan, at para. 50. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-82", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 117–118", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "A court interpreting a statutory provision does so by applying the “modern principle” of statutory interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: see, e.g., Interpretation Act , R.S.C. 1985, c. I-21 .\n\nThis Court has adopted the “modern principle” as the proper approach to statutory interpretation, because legislative intent can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context: Sullivan, at pp. 7-8. Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. An approach to reasonableness review that respects legislative intent must therefore assume that those who interpret the law — whether courts or administrative decision makers — will do so in a manner consistent with this principle of interpretation.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-83", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 119–120", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Administrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case. As discussed above, formal reasons for a decision will not always be necessary and may, where required, take different forms. And even where the interpretive exercise conducted by the administrative decision maker is set out in written reasons, it may look quite different from that of a court. The specialized expertise and experience of administrative decision makers may sometimes lead them to rely, in interpreting a provision, on considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise.\n\nBut whatever form the interpretive exercise takes, the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision. Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. Where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-84", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 121", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-85", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 122–123", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "It can happen that an administrative decision maker, in interpreting a statutory provision, fails entirely to consider a pertinent aspect of its text, context or purpose. Where such an omission is a minor aspect of the interpretive context, it is not likely to undermine the decision as a whole. It is well established that decision makers are not required “to explicitly address all possible shades of meaning” of a given provision: Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, at para. 3. Just like judges, administrative decision makers may find it unnecessary to dwell on each and every signal of statutory intent in their reasons. In many cases, it may be necessary to touch upon only the most salient aspects of the text, context or purpose. If, however, it is clear that the administrative decision maker may well, had it considered a key element of a statutory provision’s text, context or purpose, have arrived at a different result, its failure to consider that element would be indefensible, and unreasonable in the circumstances. Like other aspects of reasonableness review, omissions are not stand-alone grounds for judicial intervention: the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker.\n\nThere may be other cases in which the administrative decision maker has not explicitly considered the meaning of a relevant provision in its reasons, but the reviewing court is able to discern the interpretation adopted by the decision maker from the record and determine whether that interpretation is reasonable.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-86", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 124", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, even though the task of a court conducting a reasonableness review is not to perform a de novo analysis or to determine the “correct” interpretation of a disputed provision, it may sometimes become clear in the course of reviewing a decision that the interplay of text, context and purpose leaves room for a single reasonable interpretation of the statutory provision, or aspect of the statutory provision, that is at issue: Dunsmuir, at paras. 72-76. One case in which this conclusion was reached was Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52, in which Laskin J.A., after analyzing the reasoning of the administrative decision maker (at paras. 26-61 (CanLII)), held that the decision maker’s interpretation had been unreasonable, and, furthermore, that the factors he had considered in his analysis weighed so overwhelmingly in favour of the opposite interpretation that that was the only reasonable interpretation of the provision: para. 61. As discussed below, it would serve no useful purpose in such a case to remit the interpretative question to the original decision maker. Even so, a court should generally pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker. (d) Evidence Before the Decision Maker", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-87", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 125–126", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.\n\nThat being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, at para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: ibid. (e) Submissions of the Parties", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-88", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 127–128", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.\n\nReviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para. 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39. (f) Past Practices and Past Decisions", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-89", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 129", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision‑making freedom and independence” given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law: p. 800. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-90", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 130", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Fortunately, administrative bodies generally have a range of resources at their disposal to address these types of concerns. Access to past reasons and summaries of past reasons enables multiple individual decision makers within a single organization (such as administrative tribunal members) to learn from each other’s work, and contributes to a harmonized decision-making culture. Institutions also routinely rely on standards, policy directives and internal legal opinions to encourage greater uniformity and guide the work of frontline decision makers. This Court has also held that plenary meetings of a tribunal’s members can be an effective tool to “foster coherence” and “avoid . . . conflicting results”: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at pp. 324-28. Where disagreement arises within an administrative body about how to appropriately resolve a given issue, that institution may also develop strategies to address that divergence internally and on its own initiative. Of course, consistency can also be encouraged through less formal methods, such as the development of training materials, checklists and templates for the purpose of streamlining and strengthening institutional best practices, provided that these methods do not operate to fetter decision making.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-91", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 131", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable. In this sense, the legitimate expectations of the parties help to determine both whether reasons are required and what those reasons must explain: Baker, at para. 26. We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-92", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 132", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "As discussed above, it has been argued that correctness review would be required where there is “persistent discord” on questions on law in an administrative body’s decisions. While we are not of the view that such a correctness category is required, we would note that reviewing courts have a role to play in managing the risk of persistently discordant or contradictory legal interpretations within an administrative body’s decisions. When evidence of internal disagreement on legal issues has been put before a reviewing court, the court may find it appropriate to telegraph the existence of an issue in its reasons and encourage the use of internal administrative structures to resolve the disagreement. And if internal disagreement continues, it may become increasingly difficult for the administrative body to justify decisions that serve only to preserve the discord. (g) Impact of the Decision on the Affected Individual", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-93", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 133–134", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is well established that individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm: Baker, at para. 25. However, this principle also has implications for how a court conducts reasonableness review. Central to the necessity of adequate justification is the perspective of the individual or party over whom authority is being exercised. Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood.\n\nMoreover, concerns regarding arbitrariness will generally be more acute in cases where the consequences of the decision for the affected party are particularly severe or harsh, and a failure to grapple with such consequences may well be unreasonable. For example, this Court has held that the Immigration Appeal Division should, when exercising its equitable jurisdiction to stay a removal order under the Immigration and Refugee Protection Act , consider the potential foreign hardship a deported person would face: Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-94", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 135–136", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law. F. Review in the Absence of Reasons\n\nWhere the duty of procedural fairness or the legislative scheme mandates that reasons be given to the affected party but none have been given, this failure will generally require the decision to be set aside and the matter remitted to the decision maker: see, e.g., Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 35. Also, where reasons are provided but they fail to provide a transparent and intelligible justification as explained above, the decision will be unreasonable. In many cases, however, neither the duty of procedural fairness nor the statutory scheme will require that formal reasons be given at all: Baker, at para. 43.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-95", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 137", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Admittedly, applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided. This will often occur where the decision-making process does not easily lend itself to producing a single set of reasons, for example, where a municipality passes a bylaw or a law society renders a decision by holding a vote: see, e.g., Catalyst; Green; Trinity Western University. However, even in such circumstances, the reasoning process that underlies the decision will not usually be opaque. It is important to recall that a reviewing court must look to the record as a whole to understand the decision, and that in doing so, the court will often uncover a clear rationale for the decision: Baker, at para. 44. For example, as McLachlin C.J. noted in Catalyst, “[t]he reasons for a municipal bylaw are traditionally deduced from the debate, deliberations and the statements of policy that give rise to the bylaw”: para. 29. In that case, not only were “the reasons [in the sense of rationale] for the bylaw . . . clear to everyone”, they had also been laid out in a five-year plan: para. 33. Conversely, even without reasons, it is possible for the record and the context to reveal that a decision was made on the basis of an improper motive or for another impermissible reason, as, for example, in Roncarelli.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-96", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 138–139", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "There will nonetheless be situations in which no reasons have been provided and neither the record nor the larger context sheds light on the basis for the decision. In such a case, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable. But it is perhaps inevitable that without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process. This does not mean that reasonableness review is less robust in such circumstances, only that it takes a different shape. G. A Note on Remedial Discretion\n\nWhere a court reviews an administrative decision, the question of the appropriate remedy is multi-faceted. It engages considerations that include the reviewing court’s common law or statutory jurisdiction and the great diversity of elements that may influence a court’s decision to exercise its discretion in respect of available remedies. While we do not aim to comprehensively address here the issue of remedies on judicial review, we do wish to briefly address the question of whether a court that quashes an unreasonable decision should exercise its discretion to remit the matter to the decision maker for reconsideration with the benefit of the court’s reasons.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-97", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 140–141", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Where the reasonableness standard is applied in conducting a judicial review, the choice of remedy must be guided by the rationale for applying that standard to begin with, including the recognition by the reviewing court that the legislature has entrusted the matter to the administrative decision maker, and not to the court, to decide: see Delta Air Lines, at para. 31. However, the question of remedy must also be guided by concerns related to the proper administration of the justice system, the need to ensure access to justice and “the goal of expedient and cost-efficient decision making, which often motivates the creation of specialized administrative tribunals in the first place”: Alberta Teachers, at para. 55.\n\nGiving effect to these principles in the remedial context means that where a decision reviewed by applying the reasonableness standard cannot be upheld, it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision, this time with the benefit of the court’s reasons. In reconsidering its decision, the decision maker may arrive at the same, or a different, outcome: see Delta Air Lines, at paras. 30-31.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-98", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 142", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended: D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167, at paras. 18-19. An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose: see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at pp. 228-30; Renaud v. Quebec (Commission des affaires sociales), [1999] 3 S.C.R. 855; Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 161; Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1, at paras. 53-54; Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45, 411 D.L.R. (4th) 175, at paras. 51-56 and 84; Gehl v. Canada (Attorney General), 2017 ONCA 319, 138 O.R. (3d) 52, at paras. 54 and 88.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-99", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 142", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed: see MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6, at paras. 45-51; Alberta Teachers, at para. 55. IV. Role of Prior Jurisprudence", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-100", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 143", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Given that this appeal and its companion cases involve a recalibration of the governing approach to the choice of standard of review analysis and a clarification of the proper application of the reasonableness standard, it will be necessary to briefly address how the existing administrative law jurisprudence should be treated going forward. These reasons set out a holistic revision of the framework for determining the applicable standard of review. A court seeking to determine what standard is appropriate in a case before it should look to these reasons first in order to determine how this general framework applies to that case. Doing so may require the court to resolve subsidiary questions on which past precedents will often continue to provide helpful guidance. Indeed, much of the Court’s jurisprudence, such as cases concerning general questions of law of central importance to the legal system as a whole or those relating to jurisdictional boundaries between two or more administrative bodies, will continue to apply essentially without modification. On other issues, certain cases —including those on the effect of statutory appeal mechanisms, “true” questions of jurisdiction or the former contextual analysis — will necessarily have less precedential force. As for cases that dictated how to conduct reasonableness review, they will often continue to provide insight, but should be used carefully to ensure that their application is aligned in principle with these reasons.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-101", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 144–145", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "This approach strives for future doctrinal stability under the new framework while clarifying the continued relevance of the existing jurisprudence. Where a reviewing court is not certain how these reasons relate to the case before it, it may find it prudent to request submissions from the parties on both the appropriate standard and the application of that standard.\n\nBefore turning to Mr. Vavilov’s case, we pause to note that our colleagues mischaracterize the framework developed in these reasons as being an “encomium” for correctness, and a turn away from the Court’s deferential approach to the point of being a “eulogy” for deference (at paras. 199 and 201). With respect, this is a gross exaggeration. Assertions that these reasons adopt a formalistic, court-centric view of administrative law (at paras. 229 and 240), enable an unconstrained expansion of correctness review (at para. 253) or function as a sort of checklist for “line-by-line” reasonableness review (at para. 284), are counter to the clear wording we use and do not take into consideration the delicate balance that we have accounted for in setting out this framework. V. Mr. Vavilov’s Application for Judicial Review", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-102", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 146–147", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The case at bar involves an application for judicial review of a decision made by the Canadian Registrar of Citizenship on August 15, 2014. The Registrar’s decision concerned Mr. Vavilov, who was born in Canada and whose parents were later revealed to be undercover Russian spies. The Registrar determined that Mr. Vavilov was not a Canadian citizen on the basis of an interpretation of s. 3(2) (a) of the Citizenship Act and cancelled his certificate of citizenship under s. 26(3) of the Citizenship Regulations. We conclude that the standard of review applicable to the Registrar’s decision is reasonableness, and that the Registrar’s decision was unreasonable. We would uphold the decision of the Federal Court of Appeal to quash the Registrar’s decision and would not remit the matter to the Registrar for redetermination. A. Facts\n\nMr. Vavilov was born in Toronto as Alexander Foley on June 3, 1994. At the time of his birth, his parents were posing as Canadians under the assumed names of Tracey Lee Ann Foley and Donald Howard Heathfield. In reality, they were Elena Vavilova and Andrey Bezrukov, two foreign nationals working on a long-term assignment for the Russian foreign intelligence service, the SVR. Their false Canadian identities had been assumed prior to the birth of Mr. Vavilov and of his older brother, Timothy, for purposes of a “deep cover” espionage network under the direction of the SVR. The United States Department of Justice refers to it as the “illegals” program.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-103", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 148–149", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Ms. Vavilova and Mr. Bezrukov were deployed to Canada to establish false personal histories as Western citizens. They worked, ran a business, pursued higher education and, as noted, had two children here. After their second son was born, the family moved to France, and later to the United States. In the United States, Mr. Bezrukov obtained a Masters of Public Administration at Harvard University and worked as a consultant, all while working to collect information on a variety of sensitive national security issues for the SVR. The nature of the undercover work of Ms. Vavilova and Mr. Bezrukov meant that there was no point at which either of them had any publicly acknowledged affiliation with the Russian state, held any official diplomatic or consular status, or had been granted any diplomatic privilege or immunity.\n\nUntil he was about 16 years old, Mr. Vavilov did not know that his parents were not who they claimed to be. He believed that he was a Canadian citizen by birth, lived and identified as a Canadian, held a Canadian passport, learned both official languages and was proud of his heritage. His parents’ true identities became known to him on June 27, 2010, when they were arrested in the United States and charged (along with several other individuals) with conspiracy to act as unregistered agents of a foreign government. On July 8, 2010, they pled guilty, admitted their status as Russian citizens acting on behalf of the Russian state, and were returned to Russia in a “spy swap” the following day. Mr. Vavilov has described the revelation as a traumatic event characterized by disbelief and a crisis of identity.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-104", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 150", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Just prior to his parents’ deportation, Mr. Vavilov left the United States with his brother on a trip that had been planned before their parents’ arrest, going first to Paris, and then to Russia on a tourist visa. In October 2010, Mr. Vavilov unsuccessfully attempted to renew his Canadian passport through the Canadian Embassy in Moscow. Although he submitted to DNA testing and changed his surname from Foley to Vavilov at the behest of passport authorities, his second attempt to obtain a Canadian passport in December 2011 was also unsuccessful. He was then informed that despite his Canadian birth certificate, he would also need to obtain and provide a certificate of Canadian citizenship before he would be issued a passport. Mr. Vavilov applied for that certificate in October 2012, and it was issued to him on January 15, 2013. At that point, he made another passport application through the Canadian Embassy in Buenos Aires, Argentina, and, after a delay, applied for mandamus, a process that was settled out of court in June 2013. The Minister of Citizenship and Immigration undertook to issue a new travel document to Mr. Vavilov by July 19, 2013.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-105", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 151", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, Mr. Vavilov never received a passport. Instead, he received a “procedural fairness letter” from the Canadian Registrar of Citizenship dated July 18, 2013 in which the Registrar stated that Mr. Vavilov had not been entitled to a certificate of citizenship, that his certificate of citizenship had been issued in error and that, pursuant to s. 3(2) (a) of the Citizenship Act , he was not a citizen of Canada. Mr. Vavilov was invited to make submissions in response, and he did so. On August 15, 2014, the Registrar formally cancelled Mr. Vavilov’s Canadian citizenship certificate pursuant to s. 26(3) of the Citizenship Regulations. B. Procedural History (1) Registrar’s Decision", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-106", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 152", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In a brief letter sent to Mr. Vavilov on August 15, 2014, the Registrar informed him that she was cancelling his certificate of citizenship pursuant to s. 26(3) of the Citizenship Regulations on the basis that he was not entitled to it. The Registrar summarized her position as follows: (a) Although Mr. Vavilov was born in Toronto, neither of his parents was a citizen of Canada, and neither of them had been lawfully admitted to Canada for permanent residence at the time of his birth. (b) In 2010, Mr. Vavilov’s parents were convicted of “conspiracy to act in the United States as a foreign agent of a foreign government”, and recognized as unofficial agents working as “illegals” for the SVR. (c) As a result, the Registrar believed that, at the time of Mr. Vavilov’s birth, his parents were “employees or representatives of a foreign government”. (d) Accordingly, pursuant to s. 3(2) (a) of the Citizenship Act , Mr. Vavilov had never been a Canadian citizen and had not been entitled to receive the certificate of Canadian citizenship that had been issued to him in 2013. Section 3(2) (a) provides that s. 3(1) (a) of the Citizenship Act (which grants citizenship by birth to persons born in Canada after February 14, 1977) does not apply to an individual if, at the time of the individual’s birth, neither of their parents was a citizen or lawfully admitted to Canada for permanent residence and either parent was “a diplomatic or consular officer or other representative or employee in Canada of a foreign government.”", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-107", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 153–154", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "For these reasons, the Registrar cancelled the certificate and indicated that Mr. Vavilov would no longer be recognized as a Canadian citizen. The Registrar’s letter did not offer any analysis or interpretation of s. 3(2) (a) of the Citizenship Act . However, it appears that in coming to her decision, the Registrar relied on a 12-page report prepared by a junior analyst, which included an interpretation of this key statutory provision.\n\nIn that report, the analyst provided a timeline of the procedural history of Mr. Vavilov’s file, a summary of the investigation into and charges against his parents in the United States, and background information on the SVR’s “illegals” program. The analyst also discussed several provisions of the Citizenship Act , including s. 3(2) (a), and it is this aspect of her report that is most relevant to Mr. Vavilov’s application for judicial review. The analyst’s ultimate conclusion was that the certificate of citizenship issued to Mr. Vavilov in January 2013 was issued in error, as his parents had been “working as employees or representatives of a foreign government (the Russian Federation) during the time they resided in Canada, including at the time of Mr. Vavilov’s birth”, and that “[a]s such, Mr. Vavilov was not entitled to receive a citizenship certificate pursuant to paragraph 3(2) (a) of the Citizenship Act ”: A.R., vol. I, at p. 3. The report was dated June 24, 2014.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-108", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 155–156", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In discussing the relevant legislation, the analyst cited s. 3(1) (a) of the Citizenship Act , which establishes the general rule that persons born in Canada after February 14, 1977 are Canadian citizens. The analyst also referred to an exception to that general rule set out in s. 3(2) of the Citizenship Act, which reads as follows: (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was (a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government; (b) an employee in the service of a person referred to in paragraph (a); or (c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).\n\nThe analyst noted that s. 3(2)(a) refers both to diplomatic and consular officers and to other representatives or employees of a foreign government. She acknowledged that the term “diplomatic or consular officer” is defined in s. 35(1) of the Interpretation Act and that the definition lists a large number of posts within a foreign mission or consulate. However, the analyst observed that no statutory definition exists for the phrase “other representative or employee in Canada of a foreign government”.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-109", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 157–158", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The analyst compared the wording of s. 3(2)(a) with that of a similar provision in predecessor legislation. That provision, s. 5(3)(b) of the Canadian Citizenship Act, R.S.C. 1970, c. C-19, excluded from citizenship children whose “responsible parent” at the time of birth was: (i) a foreign diplomatic or consular officer or a representative of a foreign government accredited to Her Majesty, (ii) an employee of a foreign government attached to or in the service of a foreign diplomatic mission or consulate in Canada, or (iii) an employee in the service of a person referred to in subparagraph (i).\n\nThe analyst reasoned that because s. 3(2)(a) “makes reference to ‘representatives or employees of a foreign government’, but does not link the representatives or employees to ‘attached to or in the service of a foreign diplomatic mission or consulate in Canada’ (as did the earlier version of the provision), it is reasonable to maintain that this provision intends to encompass individuals not included in the definition of ‘diplomatic and consular staff’”: A.R., vol. I, at p. 7.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-110", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 159–161", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although the analyst acknowledged that “Ms. Vavilova and Mr. Bezrukov, were employed in Canada by a foreign government without the benefits or protections (i.e.: immunity) that accompany diplomatic, consular, or official status positions”, she concluded that they were nonetheless “unofficial employees or representatives” of Russia at the time of Mr. Vavilov’s birth: A.R., vol. I, at p. 13. The exception in s. 3(2) (a) of the Citizenship Act, as she interpreted it, therefore applied to Mr. Vavilov. As a result, the analyst recommended that the Canadian Registrar of Citizenship “recall” Mr. Vavilov’s certificate on the basis that he was not, and had never been, entitled to citizenship: ibid., at p. 14. (2) Federal Court (Bell J.), 2015 FC 960, [2016] 2 F.C.R. 39\n\nMr. Vavilov sought and was granted leave to bring an application for judicial review of the Registrar’s decision in the Federal Court pursuant to s. 22.1 of the Citizenship Act. His application was dismissed.\n\nThe Federal Court rejected Mr. Vavilov’s argument that the Registrar had breached her duty of procedural fairness by failing to disclose the documentation that had prompted the procedural fairness letter. In the Federal Court’s view, the Registrar had provided Mr. Vavilov sufficient information to allow him to meaningfully respond, and had thereby satisfied the requirements of procedural fairness in the circumstances.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-111", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 162–164", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Federal Court also rejected Mr. Vavilov’s challenge to the Registrar’s interpretation of s. 3(2) (a) of the Citizenship Act. Applying the correctness standard, the Federal Court agreed with the Registrar that undercover foreign operatives living in Canada fall within the meaning of the phrase “diplomatic or consular officer or other representative or employee in Canada of a foreign government” in s. 3(2)(a). In the Federal Court’s view, to interpret s. 3(2)(a) in any other way would render the phrase “other representative or employee in Canada of a foreign government” meaningless and would lead to the “absurd result” that “children of a foreign diplomat, registered at an embassy, who conducts spy operations, cannot claim Canadian citizenship by birth in Canada but children of those who enter unlawfully for the very same purpose, become Canadian citizens by birth”: para. 25.\n\nFinally, the Federal Court was satisfied, given the evidence, that the Registrar’s conclusion that Mr. Vavilov’s parents had at the time of his birth been in Canada as part of an undercover operation for the Russian government was reasonable. (3) Federal Court of Appeal (Stratas J.A. with Webb J.A. Concurring; Gleason J.A. Dissenting), 2017 FCA 132, [2018] 3 F.C.R. 75\n\nA majority of the Federal Court of Appeal allowed Mr. Vavilov’s appeal from the Federal Court’s judgment and quashed the Registrar’s decision.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-112", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 165–166", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court of Appeal unanimously rejected Mr. Vavilov’s argument that he had been denied procedural fairness by the Registrar. In the Court of Appeal’s view, the Registrar had provided Mr. Vavilov sufficient information in the procedural fairness letter to enable him to know the case to meet. Even if Mr. Vavilov had been entitled to more information at the time of that letter, the court indicated that his procedural fairness challenge would nevertheless have failed because he had subsequently obtained that additional information through his own efforts and was able to make meaningful submissions.\n\nThe Court of Appeal was also unanimously of the view that the appropriate standard of review for the Registrar’s interpretation and application of s. 3(2) (a) of the Citizenship Act was reasonableness. It split, however, on the application of that standard to the Registrar’s decision.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-113", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 167", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority of the Court of Appeal concluded that the analyst’s interpretation of s. 3(2)(a), which the Registrar had adopted, was unreasonable and that the Registrar’s decision should be quashed. The analysis relied on by the Registrar on the statutory interpretation issue was confined to a consideration of the text of s. 3(2)(a) and an abbreviated review of its legislative history, which totally disregarded its purpose or context. In the majority’s view, such a “cursory and incomplete approach to statutory interpretation” in a case such as this was indefensible: para. 44. Moreover, when the provision’s purpose and its context were taken into account, the only reasonable conclusion was that the phrase “employee in Canada of a foreign government” in s. 3(2)(a) was meant to apply only to individuals who have been granted diplomatic privileges and immunities under international law. Because it was common ground that neither of Mr. Vavilov’s parents had been granted such privileges or immunities, s. 3(2)(a) did not apply to him. The cancellation of his citizenship certificate on the basis of s. 3(2)(a) therefore could not stand, and Mr. Vavilov was entitled to Canadian citizenship under the Citizenship Act.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-114", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 168–169", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The dissenting judge disagreed, finding that the Registrar’s interpretation of s. 3(2)(a) was reasonable. According to the dissenting judge, the text of that provision admits of at least two rational interpretations: one that includes all employees of a foreign government and one that is restricted to those who have been granted diplomatic privileges and immunities. In the dissenting judge’s view, the former interpretation is not foreclosed by the context or the purpose of the provision. It was thus open to the Registrar to conclude that Mr. Vavilov’s parents fell within the scope of s. 3(2)(a). The dissenting judge would have upheld the Registrar’s decision. C. Analysis (1) Standard of Review\n\nApplying the standard of review analysis set out above leads to the conclusion that the standard to be applied in reviewing the merits of the Registrar’s decision is reasonableness.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-115", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 170–171", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "When a court reviews the merits of an administrative decision, reasonableness is presumed to be the applicable standard of review, and there is no basis for departing from that presumption in this case. The Registrar’s decision has come before the courts by way of judicial review, not by way of a statutory appeal. On this point, we note that ss. 22.1 through 22.4 of the Citizenship Act lay down rules that govern applications for judicial review of decisions made under that Act, one of which, in s. 22.1(1), is that such an application may be made only with leave of the Federal Court. However, none of these provisions allow for a party to bring an appeal from a decision under the Citizenship Act. Given this fact, and given that Parliament has not prescribed the standard to be applied on judicial review of the decision at issue, there is no indication that the legislature intended a standard of review other than reasonableness to apply. The Registrar’s decision does not give rise to any constitutional questions, general questions of law of central importance to the legal system as a whole or questions regarding the jurisdictional boundaries between two or more administrative bodies. As a result, the standard to be applied in reviewing the decision is reasonableness. (2) Review for Reasonableness\n\nThe principal issue before this Court is whether it was reasonable for the Registrar to find that Mr. Vavilov’s parents had been “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2) (a) of the Citizenship Act.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-116", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 172–173", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In our view, it was not. The Registrar failed to justify her interpretation of s. 3(2) (a) of the Citizenship Act in light of the constraints imposed by the text of s. 3 of the Citizenship Act considered as a whole, by other legislation and international treaties that inform the purpose of s. 3, by the jurisprudence on the interpretation of s. 3(2)(a), and by the potential consequences of her interpretation. Each of these elements — viewed individually and cumulatively — strongly supports the conclusion that s. 3(2)(a) was not intended to apply to children of foreign government representatives or employees who have not been granted diplomatic privileges and immunities. Though Mr. Vavilov raised many of these considerations in his submissions in response to the procedural fairness letter, the Registrar failed to address those submissions in her reasons and did not, to justify her interpretation of s. 3(2)(a), do more than conduct a cursory review of the legislative history and conclude that her interpretation was not explicitly precluded by the text of s. 3(2)(a).\n\nOur review of the Registrar’s decision leads us to conclude that it was unreasonable for her to find that the phrase “diplomatic or consular officer or other representative or employee in Canada of a foreign government” applies to individuals who have not been granted diplomatic privileges and immunities in Canada. It is undisputed that Mr. Vavilov’s parents had not been granted such privileges and immunities. No purpose would therefore be served by remitting this matter to the Registrar. (a) Section 3(2) of the Citizenship Act", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-117", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 174", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The analyst justified her conclusion that Mr. Vavilov is not a citizen of Canada by reasoning that his parents were “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2) (a) of the Citizenship Act. Section 3(2)(a) provides that children of “a diplomatic or consular officer or other representative or employee in Canada of a foreign government” are exempt from the general rule in s. 3(1)(a) that individuals born in Canada after February 14, 1977 acquire Canadian citizenship by birth. The analyst observed that although the term “diplomatic or consular officer” is defined in the Interpretation Act and does not apply to individuals like Mr. Vavilov’s parents, the phrase “other representative or employee in Canada of a foreign government” is not so defined, and may apply to them.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-118", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 175", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The analyst’s attempt to give the words “other representative or employee in Canada of a foreign government” a meaning distinct from that of “diplomatic or consular officer” is sensible. It is generally consistent with the principle of statutory interpretation that Parliament intends each word in a statute to have meaning: Sullivan, at p. 211. We accept that if the phrase “other representative or employee in Canada of a foreign government” were considered in isolation, it could apply to a spy working in the service of a foreign government in Canada. However, the analyst failed to address the immediate statutory context of s. 3(2)(a), including the closely related text in s. 3(2)(c): (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was (a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government; (b) an employee in the service of a person referred to in paragraph (a); or (c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-119", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 176–177", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "As the majority of the Court of Appeal noted (at paras. 61-62), the wording of s. 3(2)(c) provides clear support for the conclusion that all of the persons contemplated by s. 3(2)(a) — including those who are “employee[s] in Canada of a foreign government” — must have been granted diplomatic privileges and immunities in some form. If, as the Registrar concluded, s. 3(2)(a) includes persons who do not benefit from these privileges or immunities, it is difficult to understand how effect could be given to the explicit equivalency requirement articulated in s. 3(2)(c). However, the analyst did not account for this tension in the immediate statutory context of s. 3(2)(a). (b) The Foreign Missions and International Organizations Act and the Treaties It Implements\n\nBefore the Registrar, Mr. Vavilov argued that s. 3(2) of the Citizenship Act must be read in conjunction with both the Foreign Missions and International Organizations Act , S.C. 1991, c. 41 (“FMIOA ”), and the Vienna Convention on Diplomatic Relations, Can. T.S. 1966 No. 29 (“VCDR”). The VCDR and the Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25, are the two leading treaties that extend diplomatic and/or consular privileges and immunities to employees and representatives of foreign governments in diplomatic missions and consular posts. Parliament has implemented the relevant provisions of both conventions by means of s. 3(1) of the FMIOA .", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-120", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 178", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "To begin, we note that Canada affords citizenship in accordance both with the principle of jus soli, the acquisition of citizenship through birth regardless of the parents’ nationality, and with that of jus sanguinis, the acquisition of citizenship by descent, that is through a parent: Citizenship Act, s. 3(1) (a) and (b); see I. Brownlie, Principles of Public International Law (5th ed. 1998), at pp. 391-93. These two principles operate as a backdrop to s. 3 of the Citizenship Act as a whole. It is undisputed that s. 3(2)(a) operates as an exception to these general rules. However, Mr. Vavilov took a narrower view of that exception than did the Registrar. In his submissions to the Registrar, he argued that Parliament intended s. 3(2) of the Citizenship Act to simply mirror the FMIOA and the VCDR, as well as Article II of the Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning Acquisition of Nationality, 500 U.N.T.S. 223, which provides that “[m]embers of the mission not being nationals of the receiving State, and members of their families forming part of their household, shall not, solely by the operation of the law of the receiving State, acquire the nationality of that State”. Mr. Vavilov made the following submission to the Registrar: The purpose in excluding diplomats and their families, including newborn children, from acquiring citizenship in the receiving state relates to the immunities which extend to this group of people. Diplomats and their family members are immune from criminal prosecution and civil liability in the receiving state. As such, they cannot acquire citizenship in the receiving state and also benefit from these immunities. A citizen has duties and responsibilities to its country.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-121", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 178", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Immunity is inconsistent with this principle and so does not apply to citizens. See Article 37 of the Convention. Section 3(2) legislates into Canadian domestic law the above principles and should be narrowly interpreted with these purposes in mind. The term “employee in Canada of a foreign government” must be interpreted to mean an employee of a diplomatic mission, or connected to it, who benefits from the immunities of the Convention. Any other interpretation would lead to absurd results. There is no purpose served in excluding any child born of a person not having a connection to a diplomatic mission in Canada while sojourning here from the principle of Jus soli. (A.R., vol. IV, at pp. 449-50)", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-122", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 179", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Al-Ghamdi v. Canada (Minister of Foreign Affairs and International Trade), 2007 FC 559, 64 Imm. L.R. (3d) 67, a case which was referred to in the analyst’s report and which we will discuss in greater detail below, the Federal Court, at para. 53, quoted a passage by Professor Brownlie on this point: . . . Of particular interest are the special rules relating to the jus soli, appearing as exceptions to that principle, the effect of the exceptions being to remove the cases where its application is clearly unjustifiable. A rule which has very considerable authority stipulated that children born to persons having diplomatic immunity shall not be nationals by birth of the state to which the diplomatic agent concerned is accredited. Thirteen governments stated the exception in the preliminaries of the Hague Codification Conference. In a comment on the relevant article of the Harvard draft on diplomatic privileges and immunities it is stated: ‘This article is believed to be declaratory of an established rule of international law’. The rule receives ample support from legislation of states and expert opinion.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-123", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 179", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Convention on Certain Questions relating to the Conflict of Nationality Laws of 1930 provides in Article 12: ‘Rules of law which confer nationality by reason of birth on the territory of a State shall not apply automatically to children born to persons enjoying diplomatic immunities in the country where the birth occurs.’ In 1961 the United Nations Conference on Diplomatic Intercourse and Immunities adopted an Optional Protocol concerning Acquisition of Nationality, which provided in Article II: ‘Members of the mission not being nationals of the receiving State, and members of their families forming part of their household, shall not, solely by the operation of the law of the receiving State, acquire the nationality of that State’. Some states extend the rule to the children of consuls, and there is some support for this from expert opinion. [Footnotes omitted.] (Brownlie, at pp. 392-93)", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-124", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 180", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Vavilov included relevant excerpts from the parliamentary debate that had preceded the enactment of the Citizenship Act in support of his argument that the very purpose of s. 3(2) of the Citizenship Act was to align Canada’s citizenship rules with these principles of international law. These excerpts describe s. 3(2) as “conform[ing] to international custom” and as having been drafted with the intention of “exclud[ing] children born in Canada to diplomats from becoming Canadian citizens”: Hon. J. Hugh Faulkner, Secretary of State of Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Broadcasting, Films and Assistance to the Arts, Respecting Bill C-20, An Act respecting citizenship, No. 34, 1st Sess., 30th Parl., February 24, 1976, at p. 34:23. The record of that debate also reveals that Parliament took care to avoid the danger that because of how some provisions were written, “a number of other people would be affected such as those working for large foreign corporations”: ibid. Although the analyst discussed the textual difference between s. 3(2) and a similar provision in the former Canadian Citizenship Act, she did not grapple with these other elements of the legislative history, despite the fact that they cast considerable doubt on her conclusions, indicating that s. 3(2) was not intended to affect the status of individuals whose parents have not been granted diplomatic privileges and immunities.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-125", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 181", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In attempting to distinguish the meaning of the phrase “other representative or employee in Canada of a foreign government” from that of the term “diplomatic or consular officer”, the analyst also appeared to overlook the possibility that some individuals who fall into the former category might be granted privileges or immunities despite not being considered “diplomatic or consular officer[s]” under the Interpretation Act . Yet, as the majority of the Federal Court of Appeal pointed out, such individuals do in fact exist: paras. 53-55, citing FMIOA , at ss. 3 and 4 and Sched. II, Articles 1, 41, 43, 49, and 53. In light of Mr. Vavilov’s submissions regarding the purpose of s. 3(2), the failure to consider this possibility is a noticeable omission.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-126", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 182", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is well established that domestic legislation is presumed to comply with Canada’s international obligations, and that it must be interpreted in a manner that reflects the principles of customary and conventional international law: Appulonappa, at para. 40; see also Pushpanathan, at para. 51; Baker, at para. 70; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 39; Hape, at paras. 53-54; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at para. 48; India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 38; Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at paras. 31-32. Yet the analyst did not refer to the relevant international law, did not inquire into Parliament’s purpose in enacting s. 3(2) and did not respond to Mr. Vavilov’s submissions on this issue. Nor did she advance any alternate explanation for why Parliament would craft such a provision in the first place. In the face of compelling submissions that the underlying rationale of s. 3(2) was to implement a narrow exception to a general rule in a manner that was consistent with established principles of international law, the analyst and the Registrar chose a different interpretation without offering any reasoned explanation for doing so. (c) Jurisprudence Interpreting Section 3(2) of the Citizenship Act", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-127", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 183", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although the analyst cited three Federal Court decisions on s. 3(2) (a) of the Citizenship Act in a footnote, she dismissed them as being irrelevant on the basis that they related only to “individuals whose parents maintained diplomatic status in Canada at the time of their birth”: A.R., vol. I, at p. 7. But this distinction, while true, does not explain why the reasoning employed in those decisions, which directly concerned the scope, the meaning and the legislative purpose of s. 3(2)(a), was inapplicable in Mr. Vavilov’s case. Had the analyst considered just the three cases cited in her report — Al-Ghamdi; Lee v. Canada (Minister of Citizenship and Immigration), 2008 FC 614, [2009] 1 F.C.R. 204; and Hitti v. Canada (Minister of Citizenship and Immigration), 2007 FC 294, 310 F.T.R. 168 — it would have been evident to her that she needed to grapple with and justify her interpretation in light of the persuasive and comprehensive legal reasoning that supports the position that s. 3(2)(a) was intended to apply only to those individuals whose parents have been granted diplomatic privileges and immunities.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-128", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 184", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Al-Ghamdi, the Federal Court considered the constitutionality of paras. (a) and (c) of s. 3(2) of the Citizenship Act in reviewing a decision in which Passport Canada had refused to issue a passport to a child of a Saudi Arabian diplomat. In its reasons, the court came to a number of conclusions regarding the purpose and scope of s. 3(2), including, at para. 5, that [t]he only individuals covered in paragraphs 3(2) (a) and (c) of the Citizenship Act are children of individuals with diplomatic status. These are individuals who enter Canada under special circumstances and without undergoing any of the normal procedures. Most importantly, while in Canada, they are granted all of the immunities and privileges of diplomats . . . .", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-129", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 185", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The court went on to extensively document the link between the exception to the rule of citizenship by birth set out in s. 3(2) of the Citizenship Act and the rules of international law, the FMIOA and the VCDR: Al-Ghamdi, at paras. 52 et seq. It noted that there is an established rule of international law that children born to parents who enjoy diplomatic immunities are not entitled to automatic citizenship by birth, and that their status in this respect is an exception to the principle of jus soli: Al-Ghamdi, at para. 53, quoting Brownlie, at pp. 391-93. In finding that the exceptions under s. 3(2) to citizenship on the basis of jus soli do not infringe the rights of children of diplomats under s. 15 of the Charter , the court emphasized that all children to whom s. 3(2) applies are entitled to an “extraordinary array of privileges under the Foreign Missions and International Organizations Act ”: Al-Ghamdi, at para. 62. Citing the VCDR, it added that “[i]t is precisely because of the vast array of privileges accorded to diplomats and their families, which are by their very nature inconsistent with the obligations of citizenship, that a person who enjoys diplomatic status cannot acquire citizenship”: para. 63. In its analysis under s. 1 of the Charter , the court found that the choice to deny citizenship to individuals provided for in s. 3(2) is “tightly connected” to a pressing government objective of ensuring “that no citizen is immune from the obligations of citizenship”, such as the obligations to pay taxes and comply with the criminal law: Al-Ghamdi, at paras. 74-75. In the case at bar, the analyst failed entirely to engage with the arguments endorsed by the Federal Court in Al-Ghamdi despite the court’s key finding that s.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-130", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 185–186", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "3(2)(a) applies only to “children born of foreign diplomats or an equivalent”, a conclusion upon which the very constitutionality of the provision turned: Al-Ghamdi, at paras. 3, 9, 27, 28, 56 and 59.\n\nIn Lee, another case cited by the analyst, the Federal Court confirmed the finding in Al-Ghamdi that “[t]he only individuals covered in paragraphs 3(2) (a) and (c) of the Citizenship Act are children of individuals with diplomatic status”: Lee, at para. 77. The court found in Lee that the “functional duties of the applicant’s father” were not relevant to whether or not the applicant was excluded from citizenship pursuant to s. 3(2) (a) of the Citizenship Act: para. 58. Rather, what mattered was only that at the time of the applicant’s birth, his father had been a registered consular official and had held a diplomatic passport and the title of Vice-Consul: paras. 44, 58, 61 and 63.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-131", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 187", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Hitti, the third case cited in the analyst’s report, concerned a decision to confiscate two citizenship certificates on the basis that, under s. 3(2) of the Citizenship Act, their holders had never been entitled to them. In that case, the applicants’ father, a Lebanese citizen, had been employed as an information officer of the League of Arab States in Ottawa. Although the League did not have diplomatic standing at that time, Canada had agreed as a matter of courtesy to extend diplomatic status to officials of the League’s information centre, treating them as “attachés” of their home countries’ embassies: Hitti, at paras. 6 and 9; see also Interpretation Act , s. 35(1) . Mr. Hitti argued he did not, in practice, fulfill diplomatic tasks or act as a representative of Lebanon, but there was nonetheless a record of his being an accredited diplomat, enjoying the benefits of that status and being covered by the VCDR when his children were born: paras. 5 and 8. The Federal Court rejected a submission that Mr. Hitti would have had to perform duties in the service of Lebanon in order for his children to fall within the meaning of s. 3(2)(a), and concluded that “what Mr. Hitti did when he was in the country is not relevant”: para. 32.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-132", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 188–189", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "What can be seen from both Lee and Hitti is that what matters, for the purposes of s. 3(2)(a), is not whether an individual carries out activities in the service of a foreign state while in Canada, but whether, at the relevant time, the individual has been granted diplomatic privileges and immunities. Thus, in addition to the Federal Court’s decision in Al-Ghamdi, the analyst was faced with two cases in which the application of s. 3(2) had turned on the existence of diplomatic status rather than on the “functional duties” or activities of the child’s parents. In these circumstances, it was a significant omission for her to ignore the Federal Court’s reasoning when determining whether the espionage activities of Ms. Vavilova and Mr. Bezrukov were sufficient to ground the application of s. 3(2)(a). (d) Possible Consequences of the Registrar’s Interpretation\n\nWhen asked why the children of individuals referred to in s. 3(2)(a) would be excluded from acquiring citizenship by birth, another analyst involved in Mr. Vavilov’s file (who had also been involved in Mr. Vavilov’s brother’s file) responded as follows: Well, usually the way we use section 3(2)(a) is for — you’re right, for diplomats and that they don’t — because they are not — they are not obliged . . . to the law of Canada and everything, so that’s why their children do not obtain citizenship if they were born in Canada while the person was in Canada under that status. But then there is also this other part of the Act that says other representatives or employees of a foreign government in Canada, that may open the door for other person[s] than diplomats and that’s how we interpreted in this specific case 3(2)(a) but there is no jurisprudence on that . . . . (R.R., transcript, at pp. 87-88)", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-133", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 190–191", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In other words, the officials responsible for these files were aware that s. 3(2)(a) was informed by the principle that individuals subject to the exception are “not obliged . . . to the law of Canada”. They were also aware that the interpretation they had adopted in the case of the Vavilov brothers was a novel one. Although the Registrar knew this, she failed to provide a rationale for this expanded interpretation.\n\nAdditionally, there is no evidence that the Registrar considered the potential consequences of expanding her interpretation of s. 3(2)(a) to include individuals who have not been granted diplomatic privileges and immunities. Citizenship has been described as “the right to have rights”: U.S. Supreme Court Chief Justice Earl Warren, as quoted in A. Brouwer, Statelessness in Canadian Context: A Discussion Paper (July 2003) (online), at p. 2. The importance of citizenship was recognized in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, in which Iacobucci J., writing for this Court, stated: “I cannot imagine an interest more fundamental to full membership in Canadian society than Canadian citizenship”: para. 68. This was reiterated in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, in which this Court unanimously held that “[f]or some, such as those who might become stateless if deprived of their citizenship, it may be valued as highly as liberty”: para. 108.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-134", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 192", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "It perhaps goes without saying that rules concerning citizenship require a high degree of interpretive consistency in order to shield against a perception of arbitrariness and to ensure conformity with Canada’s international obligations. We can therefore only assume that the Registrar intended that this new interpretation of s. 3(2)(a) would apply to any other individual whose parent is employed by or represents a foreign government at the time of the individual’s birth in Canada but has not been granted diplomatic privileges and immunities. The Registrar’s interpretation would not, after all, limit the application of s. 3(2)(a) to the children of spies — its logic would be equally applicable to a number of other scenarios, including that of a child of a non-citizen worker employed by an embassy as a gardener or cook, or of a child of a business traveller who represents a foreign government-owned corporation. Mr. Vavilov had raised the fact that provisions such as s. 3(2)(a) must be given a narrow interpretation because they deny or potentially take away rights — that of citizenship under s. 3(1) in this case — which otherwise benefit from a liberal and broad interpretation: Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, at p. 307. Yet there is no indication that the Registrar considered the potential harsh consequences of her interpretation for such a large class of individuals, which included Mr. Vavilov, or the question whether, in light of those possible consequences, Parliament would have intended s. 3(2)(a) to apply in this manner.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-135", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 193", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Moreover, we would note that despite following a different legal process, the Registrar’s decision in this case had the same effect as a revocation of citizenship — a process which has been described by scholars as “a kind of ‘political death’” — depriving Mr. Vavilov of his right to vote and the right to enter and remain in Canada: see A. Macklin, “Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien” (2014), 40 Queen’s L.J. 1, at pp. 7-8. While we question whether the Registrar was empowered to unilaterally alter Canada’s position with respect to Mr. Vavilov’s citizenship and recognize that the relationship between the cancellation of a citizenship certificate under s. 26 of the Citizenship Regulations and the revocation of an individual’s citizenship (as set out in s. 10 of the Citizenship Act) is not clear, we leave this issue for another day because it was neither raised nor argued by the parties. D. Conclusion", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-136", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 194", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Multiple legal and factual constraints may bear on a given administrative decision, and these constraints may interact with one another. In some cases, a failure to justify the decision against any one relevant constraint may be sufficient to cause the reviewing court to lose confidence in the reasonableness of the decision. Section 3 of the Citizenship Act considered as a whole, other legislation and international treaties that inform the purpose of s. 3, the jurisprudence cited in the analyst’s report, and the potential consequences of the Registrar’s decision point overwhelmingly to the conclusion that Parliament did not intend s. 3(2)(a) to apply to children of individuals who have not been granted diplomatic privileges and immunities. The Registrar’s failure to justify her decision with respect to these constraints renders her interpretation unreasonable, and we would therefore uphold the Federal Court of Appeal’s decision to quash the Registrar’s decision.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-137", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 195", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "As noted above, we would exercise our discretion not to remit the matter to the Registrar for redetermination. Crucial to our decision is the fact that Mr. Vavilov explicitly raised all of these issues before the Registrar and that the Registrar had an opportunity to consider them but failed to do so. She offered no justification for the interpretation she adopted except for a superficial reading of the provision in question and a comment on part of its legislative history. On the other hand, there is overwhelming support — including in the parliamentary debate, established principles of international law, an established line of jurisprudence and the text of the provision itself — for the conclusion that Parliament did not intend s. 3(2) (a) of the Citizenship Act to apply to children of individuals who have not been granted diplomatic privileges and immunities. That being said, we would stress that it is not our intention to offer a definitive interpretation of s. 3(2)(a) in all respects, nor to foreclose the possibility that multiple reasonable interpretations of other aspects might be available to administrative decision makers. In short, we do not suggest that there is necessarily “one reasonable interpretation” of the provision as a whole. But we agree with the majority of the Court of Appeal that it was not reasonable for the Registrar to interpret s. 3(2)(a) as applying to children of individuals who have not been granted diplomatic privileges and immunities at the time of the children’s birth.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-138", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 196–198", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Given that it is undisputed that Ms. Vavilova and Mr. Bezrukov, as undercover spies, were granted no such privileges, it would serve no purpose to remit the matter in this case to the Registrar. Given that Mr. Vavilov is a person who was born in Canada after February 14, 1977, his status is governed only by the general rule set out in s. 3(1) (a) of the Citizenship Act. He is a Canadian citizen. E. Disposition\n\nThe appeal is dismissed with costs throughout to Mr. Vavilov. The following are the reasons delivered by\n\nAbella and Karakatsanis JJ. — Forty years ago, in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, this Court embarked on a course to recognize the unique and valuable role of administrative decision-makers within the Canadian legal order. Breaking away from the court-centric theories of years past, the Court encouraged judges to show deference when specialized administrative decision-makers provided reasonable answers to legal questions within their mandates. Building on this more mature understanding of administrative law, subsequent decisions of this Court sought to operationalize deference and explain its relationship to core democratic principles. These appeals offered a platform to clarify and refine our administrative law jurisprudence, while remaining faithful to the deferential path it has travelled for four decades.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-139", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 199", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Regrettably, the majority shows our precedents no such fidelity. Presented with an opportunity to steady the ship, the majority instead dramatically reverses course — away from this generation’s deferential approach and back towards a prior generation’s more intrusive one. Rather than confirming a meaningful presumption of deference for administrative decision-makers, as our common law has increasingly done for decades, the majority’s reasons strip away deference from hundreds of administrative actors subject to statutory rights of appeal; rather than following the consistent path of this Court’s jurisprudence in understanding legislative intent as being the intention to leave legal questions within their mandate to specialized decision-makers with expertise, the majority removes expertise from the equation entirely and reformulates legislative intent as an overriding intention to provide — or not provide — appeal routes; and rather than clarifying the role of reasons and how to review them, the majority revives the kind of search for errors that dominated the pre-C.U.P.E. era. In other words, instead of reforming this generation’s evolutionary approach to administrative law, the majority reverses it, taking it back to the formalistic judge-centred approach this Court has spent decades dismantling.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-140", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 200–201", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "We support the majority’s decision to eliminate the vexing contextual factors analysis from the standard of review framework and to abolish the shibboleth category of “true questions of jurisdiction”. These improvements, accompanied by a meaningful presumption of deference for administrative decision-makers, would have simplified our judicial review framework and addressed many of the criticisms levied against our jurisprudence since Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190.\n\nBut the majority goes much further and fundamentally reorients the decades-old relationship between administrative actors and the judiciary, by dramatically expanding the circumstances in which generalist judges will be entitled to substitute their own views for those of specialized decision-makers who apply their mandates on a daily basis. In so doing, the majority advocates a profoundly different philosophy of administrative law than the one which has guided our Court’s jurisprudence for the last four decades. The majority’s reasons are an encomium for correctness and a eulogy for deference. The Evolution of Canadian Administrative Law", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-141", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 202–203", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The modern Canadian state “could not function without the many and varied administrative tribunals that people the legal landscape” (The Rt. Hon. Beverley McLachlin, Administrative Tribunals and the Courts: An Evolutionary Relationship, May 27, 2013 (online)). Parliament and the provincial legislatures have entrusted a broad array of complex social and economic challenges to administrative actors, including regulation of labour relations, welfare programs, food and drug safety, agriculture, property assessments, liquor service and production, infrastructure, the financial markets, foreign investment, professional discipline, insurance, broadcasting, transportation and environmental protection, among many others. Without these administrative decision-makers, “government would be paralyzed, and so would the courts” (Guy Régimbald, Canadian Administrative Law (2nd ed. 2015), at p. 3).\n\nIn exercising their mandates, administrative decision-makers often resolve claims and disputes within their areas of specialization (Gus Van Harten et al., Administrative Law: Cases, Text, and Materials (7th ed. 2015), at p. 13). These claims and disputes vary greatly in scope and subject-matter. Corporate merger requests, professional discipline complaints by dissatisfied clients, requests for property reassessments and applications for welfare benefits, among many other matters, all fall within the purview of the administrative justice system.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-142", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 204", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The administrative decision-makers tasked to resolve these issues come from many different walks of life (Van Harten et al., at p. 15). Some have legal backgrounds, some do not. The diverse pool of decision-makers in the administrative system responds to the diversity of issues that it must resolve. To address this broad range of issues, administrative dispute-resolution processes are generally “[d]esigned to be less cumbersome, less expensive, less formal and less delayed” than their judicial counterparts — but “no less effectiv[e] or credibl[e]” (Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267 (C.A.), at p. 279). In the field of labour relations, for example, Parliament explicitly rejected a court-based system to resolve workplace disputes in favour of a Labour Board, staffed with representatives from management and labour alongside an independent member (Bora Laskin, “Collective Bargaining in Ontario: A New Legislative Approach” (1943), 21 Can. Bar Rev. 684; John A. Willes, The Ontario Labour Court: 1943-1944 (1979); Katherine Munro, “A ‘Unique Experiment’: The Ontario Labour Court, 1943-1944” (2014), 74 Labour 199). Other administrative processes — license renewals, zoning permit issuances and tax reassessments, for example — bear even less resemblance to the traditional judicial model.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-143", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 205", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Courts, through judicial review, monitor the boundaries of administrative decision making. Questions about the standards of judicial review have been an enduring feature of Canadian administrative law. The debate, in recent times, has revolved around “reasonableness” and “correctness”, and determining when each standard applies. On the one hand, “reasonableness” review expects courts to defer to decisions by specialized decision-makers that “are defensible in respect of the facts and law”; on the other, “correctness” review allows courts to substitute their own opinions for those of the initial decision-maker (Dunsmuir, at paras. 47-50). This standard of review debate has profound implications for the extent to which reviewing courts may substitute their views for those of administrative decision-makers. At its core, it is a debate over two distinct philosophies of administrative law.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-144", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 206", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The story of modern Canadian administrative law is the story of a shift away from the court-centric philosophy which denied administrative bodies the authority to interpret or shape the law. This approach found forceful expression in the work of Albert Venn Dicey. For Dicey, the rule of law meant the rule of courts. Dicey developed his philosophy at the end of the 19th century to encourage the House of Lords to restrain the government from implementing ameliorative social and welfare reforms administered by new regulatory agencies. Famously, Dicey asserted that administrative law was anathema to the English legal system (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (10th ed. 1959), at pp. 334-35). Because, in his view, only the judiciary had the authority to interpret law, there was no reason for a court to defer to legal interpretations proffered by administrative bodies, since their decisions did not constitute “law” (Kevin M. Stack, “Overcoming Dicey in Administrative Law” (2018), 68 U.T.L.J. 293, at p. 294).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-145", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 207", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The canonical example of Dicey’s approach at work is the House of Lords’ decision in Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, the judicial progenitor of “jurisdictional error”. Anisminic entrenched non-deferential judicial review by endorsing a lengthy checklist of “jurisdictional errors” capable of undermining administrative decisions. Lord Reid noted that there were two scenarios in which an administrative decision-maker would lose jurisdiction. The first was narrow and asked whether the legislature had empowered the administrative decision-maker to “enter on the inquiry in question” (p. 171). The second was wider: [T]here are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. [Emphasis added; p. 171.]", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-146", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 208", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The broad “jurisdictional error” approach in Anisminic initially found favour with this Court in cases like Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425, and Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756. These cases “took the position that a definition of jurisdictional error should include any question pertaining to the interpretation of a statute made by an administrative tribunal”, and in each case, “th[e] Court substituted what was, in its opinion, the correct interpretation of the enabling provision of the tribunal’s statute for that of the tribunal” (Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, at p. 650, per Cory J., dissenting, but not on this point). In Metropolitan Life, for example, this Court quashed a labour board’s decision to certify a union, concluding that the Board had “ask[ed] itself the wrong question” and “decided a question which was not remitted to it” (p. 435). In Bell, this Court held that a human rights commission had strayed beyond its jurisdiction by deciding to investigate a complaint of racial discrimination filed against a landlord. The Court held that the Commission had incorrectly interpreted the term “self-contained dwelling uni[t]” found in s. 3 of the Ontario Human Rights Code, 1961-62, S.O. 1961-62, c. 93, and by so doing, had lost jurisdiction to inquire into the complaint of discrimination (pp. 767 and 775).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-147", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 209", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "As these cases illustrate, the Anisminic approach proved easy to manipulate, allowing courts to characterize any question as “jurisdictional” and thereby give themselves latitude to substitute their own view of the appropriate answer without regard for the original decision-maker’s decision or reasoning. The Anisminic era and the “jurisdictional error” approach were and continue to be subject to significant judicial and academic criticism (Public Service Alliance, at p. 650; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1335, per Wilson J., concurring; Beverley McLachlin, P.C., “‘Administrative Law is Not for Sissies’: Finding a Path Through the Thicket” (2016), 29 C.J.A.L.P. 127, at pp. 129-30; Jocelyn Stacey and Alice Woolley, “Can Pragmatism Function in Administrative Law?” (2016), 74 S.C.L.R. (2d) 211, at pp. 215-16; R. A. Macdonald, “Absence of Jurisdiction: A Perspective” (1983), 43 R. du B. 307).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-148", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 210", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In 1979, the Court signaled a turn to a more deferential approach to judicial review with its watershed decision in C.U.P.E. There, the Court challenged the “jurisdictional error” model and planted the seeds of a home-grown approach to administrative law in Canada. In a frequently-cited passage, Dickson J., writing for a unanimous Court, cautioned that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233; cited in nearly 20 decisions of this Court, including Dunsmuir, at para. 35; Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, at para. 45; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, [2011] 3 S.C.R. 654, at para. 33; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2018] 2 S.C.R. 230, at para. 31). The Court instead endorsed an approach that respected the legislature’s decision to assign legal policy issues in some areas to specialized, non-judicial decision-makers. The Court recognized that legislative language could “bristl[e] with ambiguities” and that the interpretive choices made by administrative tribunals deserved respect from courts, particularly when, as in C.U.P.E., the decision was protected by a privative clause (pp. 230 and 234-36).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-149", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 211–212", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "By championing “curial deference” to administrative bodies, C.U.P.E. embraced “a more sophisticated understanding of the role of administrative tribunals in the modern Canadian state” (National Corn Growers, at p. 1336, per Wilson J., concurring; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, at p. 800). As one scholar has observed: . . . legislatures and courts in . . . Canada have come to settle on the idea that the functional capacities of administrative agencies – their expertise, investment in understanding the practical circumstances at issue, openness to participation, and level of responsiveness to political change – justify not only their law-making powers but also judicial deference to their interpretations and decisions. Law-making and legal interpretation are shared enterprises in the administrative state. [Emphasis added.] (Stack, at p. 310)\n\nIn explaining why courts must sometimes defer to administrative actors, C.U.P.E. embraced two related foundational justifications for Canada’s approach to administrative law — one based on the legislature’s express choice to have an administrative body decide the issues arising from its mandate; and one animated by the recognition that an administrative justice system could offer institutional advantages in relation to proximity, efficiency, and specialized expertise (David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart, ed., The Province of Administrative Law (1997), 279 at p. 304).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-150", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 213–214", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "A new institutional relationship between the courts and administrative actors was thus being forged, based on “an understanding of the role of expertise in the modern administrative state” which “acknowledge[d] that judges are not always in the best position to interpret the law” (The Hon. Frank Iacobucci, “Articulating a Rational Standard of Review Doctrine: A Tribute to John Willis” (2002), 27 Queen’s L.J. 859, at p. 866).\n\nIn subsequent decades, the Court attempted to reconcile the deference urged by C.U.P.E. with the lingering concept of “jurisdictional error”. In U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, the Court introduced the “pragmatic and functional” approach for deciding when a matter was within the jurisdiction of an administrative body. Instead of describing jurisdiction as a preliminary or collateral matter, the Bibeault test directed reviewing courts to consider the wording of the enactment conferring jurisdiction on the administrative body, the purpose of the statute creating the tribunal, the reason for the tribunal’s existence, the area of expertise of its members, and the nature of the question the tribunal had to decide — all to determine whether the legislator “intend[ed] the question to be within the jurisdiction conferred on the tribunal” (p. 1087; see also p. 1088). If so, the tribunal’s decision could only be set aside if it was “patently unreasonable” (p. 1086).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-151", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 215", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although still rooted in a formalistic search for jurisdictional errors, the pragmatic and functional approach recognized that legislatures had assigned courts and administrative decision-makers distinct roles, and that the specialization and expertise of administrative decision-makers deserved deference. In her concurring reasons in National Corn Growers, Wilson J. noted that part of the process of moving away from Dicey’s framework and towards a more sophisticated understanding of the role of administrative tribunals: . . . has involved a growing recognition on the part of courts that they may simply not be as well equipped as administrative tribunals or agencies to deal with issues which Parliament has chosen to regulate through bodies exercising delegated power, e.g., labour relations, telecommunications, financial markets and international economic relations. Careful management of these sectors often requires the use of experts who have accumulated years of experience and a specialized understanding of the activities they supervise. [p. 1336]", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-152", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 216–217", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "By the mid-1990s, the Court had accepted that specialization and the legislative intent to leave issues to administrative decision-makers were inextricable and essential factors in the standard of review analysis. It stressed that “the expertise of the tribunal is of the utmost importance in determining the intention of the legislator with respect to the degree of deference to be shown to a tribunal’s decision . . . [e]ven where the tribunal’s enabling statute provides explicitly for appellate review” (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at p. 335). Of the factors relevant to setting the standard of review, expertise was held to be “the most important” (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 50).\n\nConsistent with these judgments, this Court invoked the specialized expertise of a securities commission to explain why its decisions were entitled to deference on judicial review even when there was a statutory right of appeal. Writing for a unanimous Court, Iacobucci J. explained that “the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal’s expertise” (Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 591; see also Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, at pp. 1745-46). Critically, the Court’s willingness to show deference demonstrated that specialization outweighed a statutory appeal as the most significant indicator of legislative intent.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-153", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 218–219", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, the Court reformulated the pragmatic and functional approach, engaging four slightly different factors from those in Bibeault, namely: (1) whether there was a privative clause, or conversely, a right of appeal; (2) the expertise of the decision-maker on the matter in question relative to the reviewing court; (3) the purpose of the statute as a whole, and of the provision in particular; and (4) the nature of the problem, i.e., whether it was a question of law, fact, or mixed law and fact (paras. 29‑37). Instead of using these factors to answer whether a question was jurisdictional, Pushpanathan deployed them to discern how much deference the legislature intended an administrative decision to receive on judicial review. Pushpanathan confirmed three standards of review: patent unreasonableness, reasonableness simpliciter, and correctness (para. 27; see also Southam, at paras. 55‑56).\n\nSignificantly, Pushpanathan did not disturb the finding reaffirmed in Southam that specialized expertise was the most important factor in determining whether a deferential standard applied. Specialized expertise thus remained integral to the calibration of legislative intent, even in the face of statutory rights of appeal (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paras. 21 and 29-34; Cartaway Resources Corp. (Re), [2004] 1 S.C.R. 672, at para. 45; Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, at paras. 88‑92 and 100).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-154", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 220", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Next came Dunsmuir, which sought to simplify the pragmatic and functional analysis while maintaining respect for the specialized expertise of administrative decision-makers. The Court merged the three standards of review into two: reasonableness and correctness. Dunsmuir also wove together the deferential threads running through the Court’s administrative law jurisprudence, setting out a presumption of deferential review for certain categories of questions, including those where the decision-maker had expertise or was interpreting its “home” statute (paras. 53-54, per Bastarache and LeBel JJ., and para. 124, per Binnie J., concurring). Certain categories of issues remained subject to correctness review, including constitutional questions regarding the division of powers, true questions of jurisdiction, questions of law that were both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, and questions about jurisdictional lines between tribunals (paras. 58-61). Where the standard of review had not been satisfactorily determined in the jurisprudence, four contextual factors — the presence or absence of a privative clause, the purpose of the tribunal, the nature of the question at issue and the expertise of the tribunal — remained relevant to the standard of review analysis (para. 64).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-155", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 221", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Notably, Dunsmuir did not mention statutory rights of appeal as one of the contextual factors, and left undisturbed their marginal role in the standard of review analysis. Instead, the Court explicitly affirmed the links between deference, the specialized expertise of administrative decision-makers and legislative intent. Justices LeBel and Bastarache held that “deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system” (para. 49). They noted that “in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (para. 49, citing David J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-156", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 222", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Post-Dunsmuir, this Court continued to stress that specialized expertise is the basis for making administrative decision-makers, rather than the courts, the appropriate forum to decide issues falling within their mandates (see Khosa, at para. 25; R. v. Conway, [2010] 1 S.C.R. 765, at para. 53; McLean v. British Columbia (Securities Commission), [2013] 3 S.C.R. 895, at paras. 30-33). Drawing on the concept of specialized expertise, the Court’s post-Dunsmuir cases expressly confirmed a presumption of reasonableness review for an administrative decision-maker’s interpretation of its home or closely-related statutes (see Alberta Teachers’ Association, at paras. 39-41). As Gascon J. explained in Mouvement laïque québécois v. Saguenay (City), [2015] 2 S.C.R. 3, at para. 46: Deference is in order where the Tribunal acts within its specialized area of expertise . . . (Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at paras. 166-68; Mowat, at para. 24). In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 30, 34 and 39, the Court noted that, on judicial review of a decision of a specialized administrative tribunal interpreting and applying its enabling statute, it should be presumed that the standard of review is reasonableness (Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 55; Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197 (“NGC”), at para. 13; Khosa, at para. 25; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 26 and 28; Dunsmuir, at para. 54).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-157", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 223–224", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "And in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., [2016] 2 S.C.R. 293, the majority recognized: The presumption of reasonableness is grounded in the legislature’s choice to give a specialized tribunal responsibility for administering the statutory provisions, and the expertise of the tribunal in so doing. Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer . . . . [E]xpertise is something that inheres in a tribunal itself as an institution: “. . . at an institutional level, adjudicators . . . can be presumed to hold relative expertise in the interpretation of the legislation that gives them their mandate, as well as related legislation that they might often encounter in the course of their functions.” [Citation omitted; para. 33.]\n\nThe presumption of deference, therefore, operationalized the Court’s longstanding jurisprudential acceptance of the “specialized expertise” principle in a workable manner, continuing the deferential path Dickson J. first laid out in C.U.P.E.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-158", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 225", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "As for statutory rights of appeal, they continued to be seen as either an irrelevant factor in the standard of review analysis or one that yielded to specialized expertise. So firmly entrenched was this principle that in cases like Bell Canada v. Bell Aliant Regional Communications, [2009] 2 S.C.R. 764, Smith v. Alliance Pipeline Ltd., [2011] 1 S.C.R. 160, ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), [2015] 3 S.C.R. 219, and Canada (Attorney General) v. Igloo Vikski Inc., [2016] 2 S.C.R. 80, the Court applied the reasonableness standard without even referring to the presence of an appeal clause. When appeal clauses were discussed, the Court consistently confirmed that they did not oust the application of judicial review principles.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-159", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 226–227", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Khosa, Binnie J. explicitly endorsed Pezim and rejected “the idea that in the absence of express statutory language . . . a reviewing court is ‘to apply a correctness standard as it does in the regular appellate context’” (para. 26). This reasoning was followed in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2011] 3 S.C.R. 471 (“Mowat”), where the Court confirmed that “care should be taken not to conflate” judicial and appellate review (para. 30; see also para. 31). In McLean, decided two years after Mowat, the majority cited Pezim and other cases for the proposition that “general administrative law principles still apply” on a statutory appeal (see para. 21, fn. 2). Similarly, in Mouvement laïque, Gascon J. affirmed that [w]here a court reviews a decision of a specialized administrative tribunal, the standard of review must be determined on the basis of administrative law principles. This is true regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal . . . . [para. 38]\n\nIn Edmonton East, the Court considered — and again rejected — the argument that statutory appeals should form a new category of correctness review. As the majority noted, “recognizing issues arising on statutory appeals as a new category to which the correctness standard applies — as the Court of Appeal did in this case — would go against strong jurisprudence from this Court” (para. 28). Even the dissenting judges in Edmonton East, although of the view that the wording of the relevant statutory appeal clause and legislative scheme pointed to the correctness standard, nonetheless unequivocally stated that “a statutory right of appeal is not a new ‘category’ of correctness review” (para. 70).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-160", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 228", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "By the time these appeals were heard, contextual factors had practically disappeared from the standard of review analysis, replaced by a presumption of deference subject only to the correctness exceptions set out in Dunsmuir — which explicitly did not include statutory rights of appeal. In other words, the Court was well on its way to realizing Dunsmuir’s promise of a simplified analysis. Justice Gascon recognized as much last year in Canadian Human Rights Commission: This contextual approach should be applied sparingly. As held by the majority of this Court in Alberta Teachers, it is inappropriate to “retreat to the application of a full standard of review analysis where it can be determined summarily” . . . . After all, the “contextual approach can generate uncertainty and endless litigation concerning the standard of review” (Capilano [Edmonton East], at para. 35). The presumption of reasonableness review and the identified categories will generally be sufficient to determine the applicable standard. In the exceptional cases where such a contextual analysis may be justified to rebut the presumption, it need not be a long and detailed one (Capilano [Edmonton East], at para. 34). Where it has been done or referred to in the past, the analysis has been limited to determinative factors that showed a clear legislative intent justifying the rebuttal of the presumption (see, e.g., Rogers, at para. 15; Tervita, at paras. 35-36; see also, Saguenay, at paras. 50-51). [Emphasis added; para. 46.]", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-161", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 229–230", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In sum, for four decades, our standard of review jurisprudence has been clear and unwavering about the foundational role of specialized expertise and the limited role of statutory rights of appeal. Where confusion persists, it concerns the relevance of the contextual factors in Dunsmuir, the meaning of “true questions of jurisdiction” and how best to conduct reasonableness review. That was the backdrop against which these appeals were heard and argued. But rather than ushering in a simplified next act, these appeals have been used to rewrite the whole script, reassigning to the courts the starring role Dicey ordained a century ago. The Majority’s Reasons\n\nThe majority’s framework rests on a flawed and incomplete conceptual account of judicial review, one that unjustifiably ignores the specialized expertise of administrative decision-makers. Although the majority uses language endorsing a “presumption of reasonableness review”, this presumption now rests on a totally new understanding of legislative intent and the rule of law. By prohibiting any consideration of well-established foundations for deference, such as “expertise . . . institutional experience . . . proximity and responsiveness to stakeholders . . . prompt[ness], flexib[ility], and efficien[cy]; and . . . access to justice”, the majority reads out the foundations of the modern understanding of legislative intent in administrative law.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-162", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 231", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In particular, such an approach ignores the possibility that specialization and other advantages are embedded into the legislative choice to delegate particular subject matters to administrative decision-makers. Giving proper effect to the legislature’s choice to “delegate authority” to an administrative decision-maker requires understanding the advantages that the decision-maker may enjoy in exercising its mandate (Dunsmuir, at para. 49). As Iacobucci J. observed in Southam: Presumably if Parliament entrusts a certain matter to a tribunal and not (initially at least) to the courts, it is because the tribunal enjoys some advantage that judges do not. For that reason alone, review of the decision of a tribunal should often be on a standard more deferential than correctness. [Emphasis added; para. 55.]", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-163", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 232", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Chief among those advantages are the institutional expertise and specialization inherent to administering a particular mandate on a daily basis. Those appointed to administrative tribunals are often chosen precisely because their backgrounds and experience align with their mandate (Van Harten et al., at p. 15; Régimbald, at p. 463). Some administrative schemes explicitly require a degree of expertise from new members as a condition of appointment (Edmonton East, at para. 33; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at para. 29; Régimbald, at p. 462). As institutions, administrative bodies also benefit from specialization as they develop “habitual familiarity with the legislative scheme they administer” (Edmonton East, at para. 33) and “grappl[e] with issues on a repeated basis” (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, at para. 53). Specialization and expertise are further enhanced by continuing education and through meetings of the membership of an administrative body to discuss policies and best practices (Finn Makela, “Acquired Expertise of Administrative Tribunals and the Standard of Judicial Review: The Case of Grievance Arbitrators and Human Rights Law” (2013), 17 C.L.E.L.J. 345, at p. 349). In addition, the blended membership of some tribunals fosters special institutional competence in resolving “polycentric” disputes (Pushpanathan, at para. 36; Dr. Q, at paras. 29-30; Pezim, at pp. 591-92 and 596).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-164", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 233", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "All this equips administrative decision-makers to tackle questions of law arising from their mandates. In interpreting their enabling statutes, for example, administrative actors may have a particularly astute appreciation for the on-the-ground consequences of particular legal interpretations; of statutory context; of the purposes that a provision or legislative scheme are meant to serve; and of specialized terminology used in their administrative setting. Coupled with this Court’s acknowledgment that legislative provisions often admit of multiple reasonable interpretations, the advantages stemming from specialization and expertise provide a robust foundation for deference to administrative decision-makers on legal questions within their mandate (C.U.P.E., at p. 236; McLean, at para. 37). As Professor H. W. Arthurs said: There is no reason to believe that a judge who reads a particular regulatory statute once in his life, perhaps in worst-case circumstances, can read it with greater fidelity to legislative purpose than an administrator who is sworn to uphold that purpose, who strives to do so daily, and is well-aware of the effect upon the purpose of the various alternate interpretations. There is no reason to believe that a legally-trained judge is better qualified to determine the existence or sufficiency or appropriateness of evidence on a given point than a trained economist or engineer, an arbitrator selected by the parties, or simply an experienced tribunal member who decides such cases day in and day out.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-165", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 233–234", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "There is no reason to believe that a judge whose entire professional life has been spent dealing with disputes one by one should possess an aptitude for issues which arise often because an administrative system dealing with cases in volume has been designed to strike an appropriate balance between efficiency and effective rights of participation. (“Protection against Judicial Review” (1983), 43 R. du B. 277, at p. 289)\n\nJudges of this Court have endorsed both this passage and the broader proposition that specialization and expertise justify the deference owed to administrative decision-makers (National Corn Growers, at p. 1343, per Wilson J., concurring). As early as C.U.P.E., Dickson J. fused expertise and legislative intent by explaining that an administrative body’s specialized expertise can be essential to achieving the purposes of a statutory scheme: The Act calls for a delicate balance between the need to maintain public services, and the need to maintain collective bargaining. Consid­erable sensitivity and unique expertise on the part of Board members is all the more required if the twin purposes of the legislation are to be met. [p. 236]", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-166", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 235–236", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Over time, specialized expertise would become the core rationale for deferring to administrative decision-makers (Bradco Construction, at p. 335; Southam, at para. 50; Audrey Macklin, “Standard of Review: Back to the Future?”, in Colleen M. Flood and Lorne Sossin, eds., Administrative Law in Context (3rd ed. 2018), 381, at pp. 397-98). Post-Dunsmuir, the Court has been steadfast in confirming the central role of specialization and expertise, affirming their connection to legislative intent, and recognizing that they give administrative decision-makers the “interpretative upper hand” on questions of law (McLean, at para. 40; see also Conway, at para. 53; Mowat, at para. 30; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, at para. 13; Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, at para. 35; Mouvement laïque, at para. 46; Khosa, at para. 25; Edmonton East, at para. 33).\n\nAlthough the majority’s approach extolls respect for the legislature’s “institutional design choices”, it accords no weight to the institutional advantages of specialization and expertise that administrative decision-makers possess in resolving questions of law. In so doing, the majority disregards the historically accepted reason why the legislature intended to delegate authority to an administrative actor.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-167", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 237–239", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Nor are we persuaded by the majority’s claim that “if administrative decision makers are understood to possess specialized expertise on all questions that come before them, the concept of expertise ceases to assist a reviewing court in attempting to distinguish questions for which applying the reasonableness standard is appropriate from those for which it is not”. Here, the majority sets up a false choice: expertise must either be assessed on a case-by-case basis or play no role at all in a theory of judicial review.\n\nWe disagree. While not every decision-maker necessarily has expertise on every issue raised in an administrative proceeding, reviewing courts do not engage in an individualized, case-by-case assessment of specialization and expertise. The theory of deference is based not only on the legislative choice to delegate decisions, but also on institutional expertise and on “the reality that . . . those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (Khosa, at para. 25; see also Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, [2011] 3 S.C.R. 616, at para. 53; Edmonton East, at para. 33).\n\nThe exclusion of expertise, specialization and other institutional advantages from the majority’s standard of review framework is not merely a theoretical concern. The removal of the current “conceptual basis” for deference opens the gates to expanded correctness review. The majority’s “presumption” of deference will yield all too easily to justifications for a correctness-oriented framework.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-168", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 240–241", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the majority’s framework, deference gives way whenever the “rule of law” demands it. The majority’s approach to the rule of law, however, flows from a court-centric conception of the rule of law rooted in Dicey’s 19th century philosophy.\n\nThe rule of law is not the rule of courts. A pluralist conception of the rule of law recognizes that courts are not the exclusive guardians of law, and that others in the justice arena have shared responsibility for its development, including administrative decision-makers. Dunsmuir embraced this more inclusive view of the rule of law by acknowledging that the “court-centric conception of the rule of law” had to be “reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (para. 30). As discussed in Dunsmuir, the rule of law is understood as meaning that administrative decision-makers make legal determinations within their mandate, and not that only judges decide questions of law with an unrestricted license to substitute their opinions for those of administrative actors through correctness review (see McLachlin, Administrative Tribunals and the Courts: An Evolutionary Relationship; The Hon. Thomas A. Cromwell, “What I Think I’ve Learned About Administrative Law” (2017), 30 C.J.A.L.P. 307, at p. 308; Wilson v. Atomic Energy of Canada Ltd., [2016] 1 S.C.R. 770, at para. 31, per Abella J.).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-169", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 242–243", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Moreover, central to any definition of the rule of law is access to a fair and efficient dispute resolution process, capable of dispensing timely justice (Hryniak v. Mauldin, [2014] 1 S.C.R. 87, at para. 1). This is an important objective for all litigants, from the sophisticated consumers of administrative justice, to, most significantly, the particularly vulnerable ones (Angus Grant and Lorne Sossin, “Fairness in Context: Achieving Fairness Through Access to Administrative Justice”, in Colleen M. Flood and Lorne Sossin, eds., Administrative Law in Context (3rd ed. 2018), 341, at p. 342). For this reason, access to justice is at the heart of the legislative choice to establish a robust system of administrative law (Grant and Sossin, at pp. 342 and 369-70; Van Harten, et al., at p. 17; Régimbald, at pp. 2-3; McLachlin, Administrative Tribunals and the Courts: An Evolutionary Relationship). As Morissette J.A. has observed: . . . the aims of administrative law . . . generally gravitate towards promoting access to justice. The means contemplated are costless or inexpensive, simple and expeditious procedures, expertise of the decision-makers, coherence of reasons, consistency of results and finality of decisions. (Yves-Marie Morissette, “What is a ‘reasonable decision’?” (2018), 31 C.J.A.L.P. 225, at p. 236)\n\nThese goals are compromised when a narrow conception of the “rule of law” is invoked to impose judicial hegemony over administrative decision-makers. Doing so perverts the purpose of establishing a parallel system of administrative justice, and adds unnecessary expense and complexity for the public.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-170", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 244", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority even calls for a reformulation of the “questions of central importance” category from Dunsmuir and permits courts to substitute their opinions for administrative decision-makers on “questions of central importance to the legal system as a whole”, even if those questions fall squarely within the mandate and expertise of the administrative decision-maker. As noted in Canadian Human Rights Commission, correctness review was permitted only for questions “of central importance to the legal system and outside the specialized expertise of the adjudicator” (para. 28 (emphasis in original)). Broadening this category from its original characterization unduly expands the issues available for judicial substitution. Issues of discrimination, labour rights, and economic regulation of the securities markets (among many others) theoretically raise questions of vital importance for Canada and its legal system. But by ignoring administrative decision-makers’ expertise on these matters, this category will inevitably provide more “room . . . for both mistakes and manipulation” (Andrew Green, “Can There Be Too Much Context in Administrative Law? Setting the Standard of Review in Canadian Administrative Law” (2014), 47 U.B.C. L. Rev. 443, at p. 483). We would leave Dunsmuir’s description of this category undisturbed.[1]", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-171", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 245–246", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "We also disagree with the majority’s reformulation of “legislative intent” to include, for the first time, an invitation for courts to apply correctness review to legal questions whenever an administrative scheme includes a right of appeal. We do not see how appeal rights represent a “different institutional structure” that requires a more searching form of review. The mere fact that a statute contemplates a reviewing role for a court says nothing about the degree of deference required in the review process. Rights of appeal reflect different choices by different legislatures to permit review for different reasons, on issues of fact, law, mixed fact and law, and discretion, among others. Providing parties with a right of appeal can serve several purposes entirely unrelated to the standard of review, including outlining: where the appeal will take place (sometimes, at a different reviewing court than in the routes provided for judicial review); who is eligible to take part; when materials must be filed; how materials must be presented; the reviewing court’s powers on appeal; any leave requirements; and the grounds on which the parties may appeal (among other things). By providing this type of structure and guidance, statutory appeal provisions may allow legislatures to promote efficiency and access to justice, in a way that exclusive reliance on the judicial review procedure would not have.\n\nIn reality, the majority’s position on statutory appeal rights, although couched in language about “giv[ing] effect to the legislature’s institutional design choices”, hinges almost entirely on a textualist argument: the presence of the word “appeal” indicates a legislative intent that courts apply the same standards of review found in civil appellate jurisprudence.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-172", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 247–249", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority’s reliance on the “presumption of consistent expression” in relation to the single word “appeal” is misplaced and disregards long-accepted institutional distinctions between how courts and administrative decision-makers function. The language in each setting is different; the mandates are different; the policy bases are different. The idea that Housen v. Nikolaisen, [2002] 2 S.C.R. 235, must be inflexibly applied to every right of “appeal” within a statute — with no regard for the broader purposes of the statutory scheme or the practical implications of greater judicial involvement within it — is entirely unsupported by our jurisprudence.\n\nIn addition, the majority’s claim that legislatures “d[o] not speak in vain” is irreconcilable with its treatment of privative clauses, which play no role in its standard of review framework. If, as the majority claims, Parliament’s decision to provide appeal routes must influence the standard of review analysis, there is no principled reason why Parliament’s decision via privative clauses to prohibit appeals should not be given comparable effect.[2]\n\nIn any event, legislatures in this country have known for at least 25 years since Pezim that this Court has not treated statutory rights of appeal as a determinative reflection of legislative intent regarding the standard of review (Pezim, at p. 590). Against this reality, the continued use by legislatures of the term “appeal” cannot be imbued with the intent that the majority retroactively ascribes to it; doing so is inconsistent with the principle that legislatures are presumed to enact legislation in compliance with existing common law rules (Ruth Sullivan, Statutory Interpretation (3rd ed. 2016), at p. 315).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-173", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 250", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Those legislatures, moreover, understood from our jurisprudence that this Court was committed to respecting standards of review that were statutorily prescribed, as British Columbia alone has done.[3] We agree with the Attorney General of Canada’s position in the companion appeals of Bell Canada v. Canada (Attorney General), [2019] 4 S.C.R. 845, that, absent exceptional circumstances, the existence of a statutory right of appeal does not displace the presumption that the standard of reasonableness applies.[4] The majority, however, has inexplicably chosen the template proposed by the amici,[5] recommending a sweeping overhaul of our approach to legislative intent and to the determination of the standard of review.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-174", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 251", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The result reached by the majority means that hundreds of administrative decision-makers subject to different kinds of statutory rights of appeal — some in highly specialized fields, such as broadcasting, securities regulation and international trade — will now be subject to an irrebuttable presumption of correctness review. This has the potential to cause a stampede of litigation. Reviewing courts will have license to freely revisit legal questions on matters squarely within the expertise of administrative decision-makers, even if they are of no broader consequence outside of their administrative regimes. Even if specialized decision-makers provide reasonable interpretations of highly technical statutes with which they work daily, even if they provide internally consistent interpretations responsive to the parties’ submissions and consistent with the text, context and purpose of the governing scheme, the administrative body’s past practices and decisions, the common law, prior judicial rulings and international law, those interpretations can still be set aside by a reviewing court that simply takes a different view of the relevant statute. This risks undermining the integrity of administrative proceedings whenever there is a statutory right of appeal, rendering them little more than rehearsals for a judicial appeal — the inverse of the legislative intent to establish a specialized regime and entrust certain legal and policy questions to non-judicial actors.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-175", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 252", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Ironically, the majority’s approach will be a roadblock to its promise of simplicity. Elevating appeal clauses to indicators of correctness review creates a two-tier system of administrative law: one tier that defers to the expertise of administrative decision-makers where there is no appeal clause; and another tier where such clauses permit judges to substitute their own views of the legal issues at the core of those decision-makers’ mandates. Within the second tier, the application of appellate law principles will inevitably create confusion by encouraging segmentation in judicial review (Mouvement laïque, at para. 173, per Abella J., concurring in part; see also Paul Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” (2016), 62 McGill L.J. 527, at pp. 542-43; the Hon. Joseph T. Robertson, “Identifying the Review Standard: Administrative Deference in a Nutshell” (2017), 68 U.N.B.L.J. 145, at p. 162). Courts will be left with the task of identifying palpable and overriding errors for factual questions, extricating legal issues from questions of mixed fact and law, reviewing questions of law de novo, and potentially having to apply judicial review and appellate standards interchangeably if an applicant challenges in one proceeding multiple aspects of an administrative decision, some falling within an appeal clause and others not. It is an invitation to complexity and a barrier to access to justice.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-176", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 253–254", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority’s reasons “roll back the Dunsmuir clock to an era where some courts asserted a level of skill and knowledge in administrative matters which further experience showed they did not possess” (Khosa, at para. 26). The reasons elevate statutory rights of appeal to a determinative factor based on a formalistic approach that ignores the legislature’s intention to leave certain legal and policy questions to specialized administrative decision-makers. This unravelling of Canada’s carefully developed, deferential approach to administrative law returns us to the “black letter law” approach found in Anisminic and cases like Metropolitan Life whereby specialized decision-makers were subject to the pre-eminent determinations of a judge. Rather than building on Dunsmuir, which recognized that specialization is fundamentally intertwined with the legislative choice to delegate particular subject matters to administrative decision-makers, the majority’s reasons banish expertise from the standard of review analysis entirely, opening the door to a host of new correctness categories which remain open to further expansion. The majority’s approach not only erodes the presumption of deference; it erodes confidence in the existence — and desirability — of the “shared enterprises in the administrative state” of “[l]aw-making and legal interpretation” between courts and administrative decision-makers (Stack, at p. 310).\n\nBut the aspect of the majority’s decision with the greatest potential to undermine both the integrity of this Court’s decisions, and public confidence in the stability of the law, is its disregard for precedent and stare decisis.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-177", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 255", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Stare decisis places significant limits on this Court’s ability to overturn its precedents. Justice Rothstein described some of these limits in Canada v. Craig, [2012] 2 S.C.R. 489, the case about horizontal stare decisis on which the majority relies: The question of whether this Court should overrule one of its own prior decisions was addressed recently in Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3. At paragraph 56, Chief Justice McLachlin and LeBel J., in joint majority reasons, noted that overturning a precedent of this Court is a step not to be lightly undertaken. This is especially so when the precedent represents the considered views of firm majorities (para. 57). Nonetheless, this Court has overruled its own decisions on a number of occasions. (See R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1353, per Lamer C.J., for the majority; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Robinson, [1996] 1 S.C.R. 683.) However, the Court must be satisfied based on compelling reasons that the precedent was wrongly decided and should be overruled . . . . Courts must proceed with caution when deciding to overrule a prior decision. In Queensland v. Commonwealth (1977), 139 C.L.R. 585 (H.C.A.), at p. 599, Justice Gibbs articulated the required approach succinctly: No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-178", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 255–257", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court. [Emphasis added; paras. 24-26.]\n\nApex courts in several jurisdictions outside Canada have similarly stressed the need for caution and compelling justification before departing from precedent. The United States Supreme Court refrains from overruling its past decisions absent a “special justification”, which must be over and above the belief that a prior case was wrongly decided (Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015), at p. 2409; see also Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (2014), at p. 266; Kisor v. Wilkie, 139 S. Ct. 2400 (2019), at pp. 2418 and 2422; Bryan A. Garner et al., The Law of Judicial Precedent (2016), at pp. 35-36).\n\nSimilarly, the House of Lords “require[d] much more than doubts as to the correctness of [a past decision] to justify departing from it” (Fitzleet Estates Ltd. v. Cherry (1977), 51 T.C. 708, at p. 718), an approach that the United Kingdom Supreme Court continues to endorse (R. v. Taylor, [2016] UKSC 5, [2016] 4 All E.R. 617, at para. 19; Willers v. Joyce (No. 2), [2016] UKSC 44, [2017] 2 All E.R. 383, at para. 7; Knauer v. Ministry of Justice, [2016] UKSC 9, [2016] 4 All E.R. 897, at paras. 22-23).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-179", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 258–259", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "New Zealand’s Supreme Court views “caution, often considerable caution” as the “touchstone” of its approach to horizontal stare decisis, and has emphasized that it will not depart from precedent “merely because, if the matter were being decided afresh, the Court might take a different view” (Couch v. Attorney-General (No. 2), [2010] NZSC 27, [2010] 3 N.Z.L.R. 149, at paras. 105, per Tipping J., and 209, per McGrath J.).\n\nRestraint and respect for precedent also guide the High Court of Australia and South Africa’s Constitutional Court when applying stare decisis (Lee v. New South Wales Crime Commission, [2013] HCA 39, 302 A.L.R. 363, at paras. 62-66 and 70; Camps Bay Ratepayers’ and Residents’ Association v. Harrison, [2010] ZACC 19, 2011 (4) S.A. 42, at pp. 55-56; Buffalo City Metropolitan Municipality v. Asla Construction (Pty) Ltd., [2019] ZACC 15, 2019 (4) S.A. 331, at para. 65).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-180", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 260", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The virtues of horizontal stare decisis are widely recognized. The doctrine “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process” (Kimble, at p. 2409, citing Payne v. Tennessee, 501 U.S. 808 (1991), at p. 827). This Court has stressed the importance of stare decisis for “[c]ertainty in the law” (Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, at para. 38; R. v. Bernard, [1988] 2 S.C.R. 833, at p. 849; Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, at p. 527). Other courts have described stare decisis as a “foundation stone of the rule of law” (Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014), at p. 798; Kimble, at p. 2409; Kisor, at p. 2422; see also Camps Bay, at pp. 55-56; Jeremy Waldron, “Stare Decisis and the Rule of Law: A Layered Approach” (2012), 111 Mich. L. Rev. 1, at p. 28; Lewis F. Powell, Jr., “Stare Decisis and Judicial Restraint” (1990), 47 Wash. & Lee L. Rev. 281, at p. 288).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-181", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 261–262", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Respect for precedent also safeguards this Court’s institutional legitimacy. The precedential value of a judgment of this Court does not “expire with the tenure of the particular panel of judges that decided it” (Plourde v. Wal-Mart Canada Corp., [2009] 3 S.C.R. 465, at para. 13). American cases have stressed similar themes: There is . . . a point beyond which frequent overruling would overtax the country’s belief in the Court’s good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation. (Planned Parenthood of Southeastern Pennsylvania v. Casey, Governor of Pennsylvania, 505 U.S. 833 (1992), at p. 866; see also Florida Department of Health and Rehabilitative Services v. Florida Nursing Home Association, 450 U.S. 147 (1981), at p. 153, per Stevens J., concurring.)\n\nSeveral scholars have made this point as well (see e.g., Michael J. Gerhardt, The Power of Precedent (2008), at p. 18; Garner et al., at p. 391). Aharon Barak has warned that overruling precedent damages the public’s conception of the judicial role, and undermines the respect in which the public holds the courts and its faith in them. Precedent should not resemble a ticket valid only for the day of purchase. (“Overruling Precedent” (1986), 21 Is.L.R. 269, at p. 275)", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-182", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 263–264", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority’s reasons, in our view, disregard the high threshold required to overturn one of this Court’s decisions. The justification for the majority abandoning this Court’s long-standing view of how statutory appeal clauses impact the standard of review analysis is that this Court’s approach was “unsound in principle” and criticized by judges and academics. The majority also suggests that the Court’s decisions set up an “unworkable and unnecessarily complex” system of judicial review. Abandoning them, the majority argues, would promote the values underlying stare decisis, namely “clarity and certainty in the law”. In doing so, the majority discards several of this Court’s bedrock administrative law principles.\n\nThe majority leaves unaddressed the most significant rejection of this Court’s jurisprudence in its reasons — its decision to change the entire “conceptual basis” for judicial review by excluding specialization, expertise and other institutional advantages from the analysis. The lack of any justification for this foundational shift — repeatedly invoked by the majority to sanitize further overturning of precedent — undercuts the majority’s stated respect for stare decisis principles.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-183", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 265", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority explains its decision to overrule the Court’s prior decisions about appeal clauses by asserting that these precedents had “no satisfactory justification”. It does not point, however, to any arguments different from those heard and rejected by other panels of this Court over the decades whose decisions are being discarded. Instead, the majority substitutes its own preferred approach to interpreting statutory rights of appeal — an approach rejected by several prior panels of this Court in a line of decisions stretching back three decades. The rejection of such an approach was explicitly reaffirmed no fewer than four times in the past ten years (Khosa, at para. 26; Mowat, at paras. 30-31; Mouvement laïque, at para. 38; Edmonton East, at paras. 27-31; see also McLean, at para. 21).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-184", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 266", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Overruling these judgments flouts stare decisis principles, which prohibit courts from overturning past decisions which “simply represen[t] a preferred choice with which the current Bench does not agree” (Couch, at para. 105; see also Knauer, at para. 22; Casey, at p. 864). “[T]he entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance” (Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162 (2019), at p. 2190, per Kagan J., dissenting). As the United States Supreme Court noted in Kimble: . . . an argument that we got something wrong — even a good argument to that effect — cannot by itself justify scrapping settled precedent. Or otherwise said, it is not alone sufficient that we would decide a case differently now than we did then. To reverse course, we require as well what we have termed a “special justification” — over and above the belief “that the precedent was wrongly decided.” [Citation omitted; p. 2409.]", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-185", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 267", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "But it is the unprecedented wholesale rejection of an entire body of jurisprudence that is particularly unsettling. The affected cases are too numerous to list in full here. It includes many decisions conducting deferential review even in the face of a statutory right of appeal (Pezim; Southam; Committee for Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission), [2001] 2 S.C.R. 132; Dr. Q; Ryan; Cartaway; VIA Rail; Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc., [2008] 2 S.C.R. 195; Nolan v. Kerry (Canada) Inc., [2009] 2 S.C.R. 678; McLean; Bell Canada (2009); ATCO Gas; Mouvement laïque; Igloo Vikski; Edmonton East) and bedrock judgments affirming the relevance of administrative expertise to the standard of review analysis and to “home statute” deference (C.U.P.E.; National Corn Growers; Domtar Inc.; Bradco Construction; Southam; Pushpanathan; Alberta Teachers’ Association; Canadian Human Rights Commission, among many others).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-186", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 268", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Most of those decisions were decided unanimously or by strong majorities. At no point, however, does the majority acknowledge this Court’s strong reluctance to overturn precedents that “represen[t] the considered views of firm majorities” (Craig, at para. 24; Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3, at para. 57; see also Nishi v. Rascal Trucking Ltd., [2013] 2 S.C.R. 438, at paras. 23-24), or to overrule decisions of a “recent vintage” (Fraser, at para. 57; see also Nishi, at para. 23). The decisions the majority does rely on, by contrast, involved overturning usually only one precedent and almost always an older one: Craig overruled a 34-year-old precedent; R. v. Henry, [2005] 3 S.C.R. 609, overruled a 19-year-old precedent (and another 15-year-old precedent, in part); and the dissenting judges in Bernard would have overruled a 10-year-old precedent.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-187", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 269–270", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority’s decision to overturn precedent also has the potential to disturb settled interpretations of many statutes that contain a right of appeal. Under the majority’s approach, every existing interpretation of such statutes by an administrative body that has been affirmed under a reasonableness standard of review will be open to fresh challenge. In McLean, for example, this Court acknowledged that a limitations period in British Columbia’s Securities Act[6] had two reasonable interpretations, but deferred to the one the Commission preferred based on deferential review. We see no reason why an individual in the same situation as Ms. McLean could not now revisit our Court’s decision through the statutory right of appeal in the Securities Act, and insist that a new reviewing court offer its definitive view of the relevant limitations period now that appeal clauses are interpreted to permit judicial substitution rather than deference.\n\nThe majority does not address the chaos that such legal uncertainty will generate for those who rely on settled interpretations of administrative statutes to structure their affairs, despite the fact that protecting these reliance interests is a well-recognized and especially powerful reason for respecting precedent (Garner et al., at pp. 404-11; Neil Duxbury, The Nature and Authority of Precedent (2008), at pp. 118‑19; Kimble, at pp. 2410-11). By changing the entire status quo, the majority’s approach will undermine legal certainty — “the foundational principle upon which the common law relies” (Bedford, at para. 38; see also Cromwell, at p. 315).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-188", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 271", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Moreover, if this Court had for over 30 years significantly misconstrued the purpose of statutory appeal routes by failing to recognize what this majority has ultimately discerned — that in enacting such routes, legislatures were unequivocally directing courts to review de novo every question of law that an administrative body addresses, regardless of that body’s expertise — legislatures across Canada were free to clarify this interpretation and endorse the majority’s favoured approach through legislative amendment. Given the possibility — and continued absence — of legislative correction, the case for overturning our past decisions is even less compelling (Binus v. The Queen, [1967] S.C.R. 594, at p. 601; see also Kimble, at p. 2409; Kisor, at pp. 2422-23; Bilski v. Kappos, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, 561 U.S. 593 (2010), at pp. 601-2).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-189", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 272", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Each of these rationales for adhering to precedent — consistent affirmation, reliance interests and the possibility of legislative correction — was recently endorsed by the United States Supreme Court in Kisor. There, the Court invoked stare decisis to uphold two administrative law precedents which urged deference to administrative agencies when they interpreted ambiguous provisions in their regulations (Bowles, Price Administrator v. Seminole Rock & Sand Co., 325 U.S. 410 (1945); Auer v. Robbins, 519 U.S. 452 (1997)). Writing for the majority on the issue of stare decisis, Justice Kagan explained at length why the doctrine barred the Court from overturning Auer or Seminole Rock. To begin, Justice Kagan reiterated the importance of stare decisis and the need for special justification to overcome its demands. She then explained that stare decisis carried even greater force than usual when applied to two decisions that had been affirmed by a “long line of precedents” going back 75 years or more and cited by lower courts thousands of times (p. 2422). She noted that overturning the challenged precedents would cast doubt on many settled statutory interpretations and invite relitigation of cases (p. 2422). Finally, Justice Kagan reasoned that Congress remained free to overturn the cases if the Court had misconstrued legislative intent: . . . even if we are wrong about Auer, “Congress remains free to alter what we have done.” In a constitutional case, only we can correct our error. But that is not so here. Our deference decisions are “balls tossed into Congress’s court, for acceptance or not as that branch elects.” And so far, at least, Congress has chosen acceptance.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-190", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 272", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "It could amend the APA or any specific statute to require the sort of de novo review of regulatory interpretations that Kisor favors. Instead, for approaching a century, it has let our deference regime work side-by-side with both the APA and the many statutes delegating rulemaking power to agencies. It has done so even after we made clear that our deference decisions reflect a presumption about congressional intent. And it has done so even after Members of this Court began to raise questions about the doctrine. Given that history — and Congress’s continuing ability to take up Kisor’s arguments — we would need a particularly “special justification” to now reverse Auer. [Citations omitted; pp. 2422-23.]", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-191", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 273", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the face of these compelling reasons for adhering to precedent, many of which have found resonance in this Court’s jurisprudence, the majority’s reliance on “judicial and academic criticism” falls far short of overcoming the demands of stare decisis. It is hard to see why the obiter views of the handful of Canadian judges referred to by the majority should be determinative or even persuasive. The majority omits the views of any academics or judges who have voiced support for a strong presumption of deference without identifying our approach to statutory rights of appeal as cause for concern (Dyzenhaus, “Dignity in Administrative Law: Judicial Deference in a Culture of Justification”, at p. 109; Green, at pp. 489-90; Matthew Lewans, Administrative Law and Judicial Deference (2016); Jonathan M. Coady, “The Time Has Come: Standard of Review in Canadian Administrative Law” (2017), 68 U.N.B.L.J. 87; the Hon. John M. Evans, “Standards of Review in Administrative Law” (2013), 26 C.J.A.L.P. 67, at p. 79; the Hon. John M. Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?” (2014), 27 C.J.A.L.P. 101; Jerry V. DeMarco, “Seeking Simplicity in Canada’s Complex World of Judicial Review” (2019), 32 C.J.A.L.P. 67).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-192", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 274", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "A selective assortment of criticism is not evidence of generalized criticism or unworkability. This Court frequently tackles contentious, high-profile cases that engender strong and persisting divisions of opinion. The public looks to us to definitively resolve those cases, regardless of the composition of the Court. As Hayne J. noted in Lee: To regard the judgments of this Court as open to reconsideration whenever a new argument is found more attractive than the principle expressed in a standing decision is to overlook the function which a final court of appeal must perform in defining the law. In difficult areas of the law, differences of legal opinion are inevitable; before a final court of appeal, the choice between competing legal solutions oftentimes turns on the emphasis or weight given by each of the judges to one factor against a countervailing factor. . . . In such cases, the decision itself determines which solution is, for the purposes of the current law, correct. It is not to the point to argue in the next case that, leaving the particular decision out of account, another solution is better supported by legal theory. Such an approach would diminish the authority and finality of the judgments of this Court. As the function of defining the law is vested in the Court rather than in the justices who compose it, a decision of the Court will be followed in subsequent cases by the Court, however composed, subject to the exceptional power which resides in the Court to permit reconsideration. Accordingly, as one commentator has put the point: “the previous decision is to be treated as the primary premise from which other arguments follow, and not just as one potential premise among an aggregate of competing premises”.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-193", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 274–275", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "[Emphasis in original; footnote omitted.] (paras. 65-66, citing Baker v. Campbell (1983), 153 C.L.R. 52 (H.C.A.), at pp. 102-3.)\n\nThis Court, in fact, has been clear that “criticism of a judgment is not sufficient to justify overruling it” (Fraser, at para. 86). Differences of legal and public opinion are a natural by-product of contentious cases like R. v. Jordan, [2016] 1 S.C.R. 631, or even Housen, which, as this Court acknowledged, was initially applied by appeal courts with “varying degrees of enthusiasm” (H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, at para. 76; see also Paul M. Perell, “The Standard of Appellate Review and The Ironies of Housen v. Nikolaisen” (2004), 28 Adv. Q. 40, at p. 53; Mike Madden, “Conquering the Common Law Hydra: A Probably Correct and Reasonable Overview of Current Standards of Appellate and Judicial Review” (2010), 36 Adv. Q. 269, at pp. 278-79 and 293; Paul J. Pape and John J. Adair, “Unreasonable review: The losing party and the palpable and overriding error standard” (2008), 27 Adv. J. 6, at p. 8; Geoff R. Hall, “Two Unsettled Questions in the Law of Contractual Interpretation: A Call to the Supreme Court of Canada” (2011), 50 Can. Bus. L.J. 434, at p. 436).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-194", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 276", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "To justify circumventing this Court’s jurisprudence, the majority claims that the precedents being overturned themselves departed from the approach to statutory rights of appeal under the pragmatic and functional test. That, with respect, is wrong. Ever since Bell Canada (1989) and in several subsequent decisions outlined earlier in these reasons, statutory rights of appeal have played little or no role in the standard of review analysis. Moreover, in pre-Dunsmuir cases, statutory rights of appeal were still seen as only one factor among others — and not as unequivocal indicators of correctness review (see, for example, Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, at paras. 27-33; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at paras. 23-24; Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45, at paras. 149-51). Our pre- and post-Dunsmuir cases on statutory rights of appeal shared in common an unwavering commitment to determining the standard of review in administrative proceedings using administrative law principles, even when appeal rights were involved.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-195", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 277–278", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "For the majority, the elimination of the contextual factors appears to have justified the reconstruction of the whole judicial review framework. Yet the elimination of the contextual analysis was all but complete in our post-Dunsmuir jurisprudence, and does not support the foundational changes to judicial review in the majority’s decision. Neither that development, nor the majority’s assertion that our precedents have proven “unclear and unduly complex”, justifies the conclusion that all of our administrative law precedents — even those unconnected to the practical difficulties in applying Dunsmuir — are suddenly fair game.\n\nThis Court is overturning a long line of well-established and recently-affirmed precedents in a whole area of law, including several unanimous or strong majority judgments. There is no principled justification for such a dramatic departure from this Court’s existing jurisprudence. Going Forward", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-196", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 279", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In our view, a more modest approach to modifying our past decisions, one that goes no further than necessary to clarify the law and its application, is justified. “[W]hen a court does choose to overrule its own precedents, it should do so carefully, with moderation, and with due regard for all the important considerations that undergird the doctrine” (Garner et al., at pp. 41-42). Such an approach to changing precedent preserves the integrity of the judicial process and, at a more conceptual level, of the law itself as a social construct. Michael J. Gerhardt summarized this approach eloquently: Judicial modesty is . . . a disposition to respect precedents (as embodying the opinions of others), to learn from their and others’ experiences, and to decide cases incrementally to minimize conflicts with either earlier opinions of the Court or other constitutional actors. [p. 7]", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-197", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 280–281", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Judicial modesty promotes the responsible development of the common law. Lord Tom Bingham described that process in his seminal work, The Rule of Law (2010): . . . it is one thing to move the law a little further along a line on which it is already moving, or to adapt it to accord with modern views and practices; it is quite another to seek to recast the law in a radically innovative or adventurous way, because that is to make it uncertain and unpredictable, features which are the antithesis of the rule of law. [pp. 45-46] (See also Robert J. Sharpe, Good Judgment: Making Judicial Decisions (2018), at p. 93; Beverley McLachlin, “The Role of the Supreme Court of Canada in Shaping the Common Law”, in Paul Daly, ed., Apex Courts and the Common Law (2019), 25, at p. 35; R. v. Salituro, [1991] 3 S.C.R. 654, at p. 670; Friedmann Equity Developments Inc. v. Final Note Ltd., [2000] 1 S.C.R. 842, at para. 42; R. v. Kang-Brown, [2008] 1 S.C.R. 456, at paras. 14-16, per LeBel J., and 73-74, per Binnie J., concurring.)\n\nLord Bingham’s comments highlight that a nuanced balance must be struck between maintaining the stability of the common law and ensuring that the law is flexible and responsive enough to adapt to new circumstances and shifts in societal norms. Stare decisis plays a critical role in maintaining that balance and upholding the rule of law. When stare decisis is respected, precedent acts as a stabilizing force: providing certainty as to what the law is, consistency that allows those subject to the law to order their affairs accordingly, and continuity that protects reliance on those legal consequences. Stare decisis is at the heart of the iterative development of the common law, fostering progressive, incremental and responsible change.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-198", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 282", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "So what do we suggest? We support a standard of review framework with a meaningful rule of deference, based on both the legislative choice to delegate decision-making authority to an administrative actor and on the specialized expertise that these decision-makers possess and develop in applying their mandates. Outside of the three remaining correctness categories from Dunsmuir — and absent clear and explicit legislative direction on the standard of review — administrative decisions should be reviewed for reasonableness. Like the majority, we support eliminating the category of “true questions of jurisdiction” and foreclosing the use of the contextual factors identified in Dunsmuir. These developments introduce incremental changes to our judicial review framework, while respecting its underlying principles and placing the ball in the legislatures’ court to modify the standards of review if they wish.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-199", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 283–284", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "To the extent that concerns were expressed about the quality of administrative decision making by some interveners who represented particularly vulnerable groups, we agree that they must be taken seriously. But the solution does not lie in authorizing more incursions into the administrative system by generalist judges who lack the expertise necessary to implement these sensitive mandates. Any perceived shortcomings in administrative decision making are not solved by permitting de novo review of every legal decision by a court and, as a result, adding to the delay and cost of obtaining a final decision. The solution lies instead in ensuring the proper qualifications and training of administrative decision-makers. Like courts, administrative actors are fully capable of, and responsible for, improving the quality of their own decision-making processes, thereby strengthening access to justice in the administrative justice system.\n\nWe also acknowledge that this Court should offer additional direction on conducting reasonableness review.[7] We fear, however, that the majority’s multi-factored, open-ended list of “constraints” on administrative decision making will encourage reviewing courts to dissect administrative reasons in a “line-by-line treasure hunt for error” (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., [2013] 2 S.C.R. 458, at para. 54). These “constraints” may function in practice as a wide-ranging catalogue of hypothetical errors to justify quashing an administrative decision — a checklist with unsettling similarities to the series of “jurisdictional errors” spelled out in Anisminic itself.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-200", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 285–287", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Structuring reasonableness review in this fashion effectively imposes on administrative decision-makers a higher standard of justification than that applied to trial judges. Such an approach undercuts deference and revives a long-abandoned posture of suspicion towards administrative decision making. We are also concerned by the majority’s warning that administrative decision-makers cannot “arrogate powers to themselves that they were never intended to have”, an unhelpful truism that risks reintroducing the tortured concept of “jurisdictional error” by another name.\n\nWe would advocate a continued approach to reasonableness review which focuses on the concept of deference and what it requires of reviewing courts. Curial deference, after all, is the hallmark of reasonableness review, setting it apart from the substitution of opinion permitted under the correctness standard. The choice of a particular standard of review — whether described as “correctness”, “reasonableness” or in other terms — is fundamentally about “whether or not a reviewing court should defer”[8] to an administrative decision (see Dunsmuir, at para. 141, per Binnie J., concurring; Régimbald, at pp. 539-40). If courts, therefore, are to properly conduct “reasonableness” review, they must properly understand what deference means.\n\nIn our view, deference imposes three requirements on courts conducting reasonableness review. It informs the attitude a reviewing court must adopt towards an administrative decision-maker; it affects how a court frames the question it must answer on judicial review; and it affects how a reviewing court evaluates challenges to an administrative decision.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-201", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 288–289", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "First and foremost, deference is an “attitude of the court” conducting reasonableness review (Dunsmuir, at para. 48). Deference mandates respect for the legislative choice to entrust a decision to administrative actors rather than to the courts, and for the important role that administrative decision-makers play in upholding and applying the rule of law (Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, at para. 131, per LeBel J., concurring). Deference also requires respect for administrative decision-makers, their specialized expertise and the institutional setting in which they operate (Dunsmuir, at paras. 48-49). Reviewing courts must pay “respectful attention” to the reasons offered for an administrative decision, make a genuine effort to understand why the decision was made, and give the decision a fair and generous construction in light of the entire record (Newfoundland Nurses, at paras. 11-14 and 17).\n\nSecond, deference affects how a court frames the question it must answer when conducting judicial review. A reviewing court does not ask how it would have resolved an issue, but rather, whether the answer provided by the administrative decision-maker has been shown to be unreasonable (Khosa, at paras. 59 and 61-62; Dunsmuir, at para. 47). Framing the inquiry in this way ensures that the administrative decision under review is the focus of the analysis.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-202", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 290", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court has often endorsed this approach to conducting reasonableness review. In Ryan, for example, Iacobucci J. explained: . . . when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. . . . The standard of reasonableness does not imply that a decision-maker is merely afforded a “margin of error” around what the court believes is the correct result. . . . Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness. . . . Even if there could be, notionally, a single best answer, it is not the court’s role to seek this out when deciding if the decision was unreasonable. [paras. 50-51] (See also Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178, at p. 214; Toronto (City), at paras. 94-95, per LeBel J., concurring; VIA Rail, at para. 101; Mason v. Minister of Citizenship and Immigration, 2019 FC 1251, at para. 22 (CanLII), per Grammond J.; Régimbald, at p. 539; Sharpe, at pp. 204 and 208; Paul Daly, “The Signal and the Noise in Administrative Law” (2017), 68 U.N.B.L.J. 67, at p. 85; Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?”, at p. 107.)", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-203", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 291", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Third, deferential review impacts how a reviewing court evaluates challenges to an administrative decision. Deference requires the applicant seeking judicial review to bear the onus of showing that the decision was unreasonable (Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), [2018] 1 S.C.R. 83, at para. 108; Mission Institution v. Khela, [2014] 1 S.C.R. 502, at para. 64; May v. Ferndale Institution, [2005] 3 S.C.R. 809, at para. 71; Ryan, at para. 48; Southam, at para. 61; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115, at p. 130). Focusing on whether the applicant has demonstrated that the decision is unreasonable reinforces the central role that administrative decisions play in a properly deferential review process, and confirms that the decision-maker does not have to persuade the court that its decision is reasonable.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-204", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 292", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Assessing whether a decision is reasonable also requires a qualitative assessment. Reasonableness is a concept that pervades the law but is difficult to define with precision (Dunsmuir, at para. 46). It requires, by its very nature, a fact-specific inquiry that involves a certain understanding of common experience. Reasonableness cannot be reduced to a formula or a checklist of factors, many of which will not be relevant to a particular decision. Ultimately, whether an administrative decision is reasonable will depend on the context (Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5, at para. 18). Administrative law covers an infinite variety of decisions and decision-making contexts, as LeBel J. colourfully explained in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at para. 158 (dissenting in part, but not on this point): . . . not all administrative bodies are the same. Indeed, this is an understatement. At first glance, labour boards, police commissions, and milk control boards may seem to have about as much in common as assembly lines, cops, and cows! Administrative bodies do, of course, have some common features, but the diversity of their powers, mandate and structure is such that to apply particular standards from one context to another might well be entirely inappropriate.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-205", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 293–294", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Deference, in our view, requires approaching each administrative decision on its own terms and in its own context. But we emphasize that the inherently contextual nature of reasonableness review does not mean that the degree of scrutiny applied by a reviewing court varies (Alberta Teachers’ Association, at para. 47; Wilson, at para. 18). It merely means that when assessing a challenge to an administrative decision, a reviewing court must be attentive to all relevant circumstances, including the reasons offered to support the decision, the record, the statutory scheme and the particular issues raised by the applicant, among other factors (see, for example, Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at para. 40; Newfoundland Nurses, at para. 18; Van Harten et al., at p. 794). Without this context, it is impossible to determine what constitutes a sufficiently compelling justification to quash a decision under reasonableness review. Context may make a challenge to an administrative decision more or less persuasive — but it does not alter the deferential posture of the reviewing court (Suresh, at para. 40).\n\nDeference, however, does not require reviewing courts to shirk their obligation to review the decision. So long as they maintain a respectful attitude, frame the judicial review inquiry properly and demand compelling justification for quashing a decision, reviewing courts are entitled to meaningfully probe an administrative decision. A thorough evaluation by a reviewing court is not “disguised correctness review”, as some have used the phrase. Deference, after all, stems from respect, not inattention to detail.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-206", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 295–296", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Bearing this in mind, we offer the following suggestions for conducting reasonableness review. We begin with situations where reasons are required.[9]\n\nThe administrative decision is the focal point of the review exercise. Where reasons are provided, they serve as the natural starting point to determine whether the decision-maker acted reasonably (Williams Lake, at para. 36). By beginning with the reasons offered for the decision, read in light of the surrounding context and the grounds raised to challenge the decision, reviewing courts provide meaningful oversight while respecting the legitimacy of specialized administrative decision making.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-207", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 297–298", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Reviewing courts should approach the reasons with respect for the specialized decision-makers, the significant role they have been assigned and the institutional context chosen by the legislator. Reasons should be approached generously, on their own terms. Reviewing courts should be hesitant to second-guess operational implications, practical challenges and on-the-ground knowledge used to justify an administrative decision. Reviewing courts must also remain alert to specialized concepts or language used in an administrative decision that may be unfamiliar to a generalist judge (Newfoundland Nurses, at para. 13; Igloo Vikski, at paras. 17 and 30). When confronted with unfamiliar language or modes of reasoning, judges should acknowledge that such differences are an inevitable, intentional and invaluable by-product of the legislative choice to assign a matter to the administrative system. They may lend considerable force to an administrative decision and, by the same token, render an applicant’s challenge to that decision less compelling. Reviewing courts scrutinizing an administrative body’s decision under the reasonableness framework should therefore keep in mind that the administrative body holds the “interpretative upper hand” (McLean, at para. 40).\n\nThroughout the review process, a court conducting deferential review must view claims of administrative error in context and with caution, cognizant of the need to avoid substituting its opinion for that of those empowered and better equipped to answer the questions at issue. Because judicial substitution is incompatible with deference, reviewing courts must carefully evaluate the challenges raised by an applicant to ensure they go to the reasonableness of the administrative decision.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-208", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 299", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Unsurprisingly, applicants rarely present challenges to an administrative decision as explicit invitations for courts to substitute their opinions for those of administrative actors. Courts, therefore, must carefully probe challenges to administrative decisions to assess whether they amount, in substance, to a mere difference of opinion with how the administrative decision-maker weighed or prioritized the various factors relevant to the decision-making process. Allegations of error may, on deeper examination, simply reflect a legitimate difference in approach by an administrative decision-maker. By rooting out and rejecting such challenges, courts respect the valuable and distinct perspective that administrative bodies bring to answering legal questions, flowing from the considerable expertise and field sensitivity they develop by administering their mandate and working within the intricacies of their statutory context on a daily basis. The understanding and insights of administrative actors enhance the decision-making process and may be more conducive to reaching a result “that promotes effective public policy and administration . . . than the limited knowledge, detachment, and modes of reasoning typically associated with courts of law” (National Corn Growers, at pp. 1336-37 (emphasis deleted), per Wilson J., concurring, citing J. M. Evans et al., Administrative Law: Cases, Text, and Materials (3rd ed. 1989), at p. 414).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-209", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 300", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "When resolving challenges to an administrative decision, courts must also consider the materiality of any alleged errors in the decision-maker’s reasoning. Under reasonableness review, an error is not necessarily sufficient to justify quashing a decision. Inevitably, the weight of an error will depend on the extent to which it affects the decision. An error that is peripheral to the administrative decision-maker’s reasoning process, or overcome by more compelling points advanced in support of the result, does not provide fertile ground for judicial review. Ultimately, the role of the reviewing court is to examine the decision as a whole to determine whether it is reasonable (Dunsmuir, at para. 47; Khosa, at para. 59). Considering the materiality of any impugned errors is a natural part of this exercise, and of reading administrative reasons “together with the outcome” (Newfoundland Nurses, at para. 14).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-210", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 301–302", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Review of the decision as a whole is especially vital when an applicant alleges that an administrative decision contains material omissions. Significantly, and as this Court has frequently emphasized, administrative decision-makers are not required to consider and comment upon every issue raised by the parties in their reasons (Construction Labour Relations v. Driver Iron Inc., [2012] 3 S.C.R. 405, at para. 3; Newfoundland Nurses, at para. 16, citing Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382, at p. 391). Further, a reviewing court is not restricted to the four corners of the written reasons delivered by the decision-maker and should, if faced with a gap in the reasons, look to the record to see if it sheds light on the decision (Williams Lake, at para. 37; Delta Air Lines Inc. v. Lukács, [2018] 1 S.C.R. 6, at para. 23; Newfoundland Nurses, at para. 15; Alberta Teachers’ Association, at paras. 53 and 56).\n\nThe use of the record and other context to supplement a decision-maker’s reasons has been the subject of some academic discussion (see, for example, Mullan, at pp. 69-74). We support a flexible approach to supplementing reasons, which is consistent with the flexible approach used to determine whether administrative reasons must be provided to begin with and sensitive to the “day-to-day realities of administrative agencies” (Baker, at para. 44), which may not be conducive to the production of “archival” reasons associated with court judgments (para. 40, citing Roderick A. Macdonald and David Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-211", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 303", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Some materials that may help bridge gaps in a reviewing court’s understanding of an administrative decision include: the record of any formal proceedings as well as the materials before the decision-maker, past decisions of the administrative body, and policies or guidelines developed to guide the type of decision under review (see Matthew Lewans, “Renovating Judicial Review” (2017), 68 U.N.B.L.J. 109, at pp. 137-38). Reviewing these materials may assist a court in understanding, “by inference”, why an administrative decision-maker reached a particular outcome (Baker, at para. 44; see also Williams Lake, at para. 37; Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.), 2008 ONCA 436, 237 O.A.C. 71, at paras. 38-39). It may reveal further confirmatory context for a line of reasoning employed by the decision-maker — by showing, for example, that the decision-maker’s understanding of the purpose of its statutory mandate finds support in the provision’s legislative history (Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3, at paras. 25-29). Reviewing the record can also yield responses to the specific challenges raised by an applicant on judicial review, responses that are “consistent with the process of reasoning” applied by the administrative decision-maker (Igloo Vikski, at para. 45). In these ways, reviewing courts may legitimately supplement written reasons without “supplant[ing] the analysis of the administrative body” (Lukács, at para. 24).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-212", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 304–305", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The “adequacy” of reasons, in other words, is not “a stand-alone basis for quashing a decision” (Newfoundland Nurses, at para. 14). As this Court has repeatedly confirmed, reasons must instead “be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (Newfoundland Nurses, at para. 14; Halifax (Regional Municipality) v. Canada (Public Works and Government Services), [2012] 2 S.C.R. 108, at para. 44; Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, at para. 52; Williams Lake, at para. 141, per Rowe J., dissenting, but not on this point). This approach puts substance over form in situations where the basis for a decision by a specialized administrative actor is evident on the record, but not clearly expressed in written reasons. Quashing decisions in such circumstances defeats the purpose of deference and thwarts access to justice by wasting administrative and judicial resources.\n\nIn our view, therefore, if an applicant claims that an administrative decision-maker failed to address a relevant factor in reaching a decision, the reviewing court must consider the submissions and record before the decision-maker, and the materiality of any such omission to the decision rendered. An administrative decision-maker’s failure, for example, to refer to a particular statutory provision or the full factual record before it does not automatically entitle a reviewing court to conduct a de novo assessment of the decision under review. The inquiry must remain focussed on whether the applicant has satisfied the burden of showing that the omission renders the decision reached unreasonable.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-213", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 306", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "We acknowledge that respecting the line between reasonableness and correctness review has posed a particular challenge for judges when reviewing interpretation by administrative decision-makers of their statutory mandates. Judges routinely interpret statutes and have developed a template for how to scrutinize words in that context. But the same deferential approach we have outlined above must apply with equal force to statutory interpretation cases. When reviewing an administrative decision involving statutory interpretation, a court should not assess the decision by determining what, in its own view, would be a reasonable interpretation. Such an approach “imperils deference” (Paul Daly, “Unreasonable Interpretations of Law” (2014), 66 S.C.L.R. (2d) 233, at p. 250).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-214", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 307–308", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "We agree with Justice Evans that “once [a] court embarks on its own interpretation of the statute to determine the reasonableness of the tribunal’s decision, there seems often to be little room for deference” (Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?”, at p. 109; see also Mason, at para. 34; Dyzenhaus, “Dignity in Administrative Law: Judicial Deference in a Culture of Justification”, at p. 108; Daly, “Unreasonable Interpretations of Law”, at pp. 254-55). We add that a de novo interpretation of a statute, conducted as a prelude to “deferential” review, necessarily omits a vital piece of the interpretive puzzle: the perspective of the front-line, specialized administrative body that routinely applies the statutory scheme in question (Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, at p. 304; Paul Daly, “Deference on Questions of Law” (2011), 74 Mod. L. Rev. 694). By placing that perspective at the heart of the judicial review inquiry, courts display respect for administrative specialization and expertise, and for the legislative choice to delegate certain questions to non-judicial bodies.\n\nConversely, by imposing their own interpretation of a statutory provision, courts undermine legislative intent to confide a mandate to the decision-maker. Applying a statute will almost always require some interpretation, making the interpretive mandate of administrative decision-makers inherent to their legislative mandate. The decision-maker who applies the statute has primary responsibility for interpreting the provisions in order to carry out their mandate effectively.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-215", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 309", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Administrative decision-makers performing statutory interpretation should therefore be permitted to be guided by their expertise and knowledge of the practical realities of their administrative regime. In many cases, the “ordinary meaning” of a word or term makes no sense in a specialized context. And in some settings, law and policy are so inextricably at play that they give the words of a statute a meaning unique to a particular specialized context (National Corn Growers, at p. 1336, per Wilson J., concurring; Domtar Inc., at p. 800). Further, not only are statutory provisions sometimes capable of bearing more than one reasonable interpretation, they are sometimes drafted in general terms or with “purposeful ambiguity” in order to permit adaptation to future, unknown circumstances (see Felix Frankfurter, “Some Reflections on the Reading of Statutes” (1947), 47 Colum. L. Rev. 527, at p. 528). These considerations make it all the more compelling that reviewing courts avoid imposing judicial norms on administrative decision-makers or maintaining a dogmatic insistence on formalism. Where a decision-maker can explain its decision adequately, that decision should be upheld (Daly, “Unreasonable Interpretations of Law”, at pp. 233-34, 250 and 254-55).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-216", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 310–311", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Justice Brown’s reasons in Igloo Vikski provide a useful illustration of a properly deferential approach to statutory interpretation. That case involved an interpretation of the Customs Tariff , S.C. 1997, c. 36 , as it applies to hockey goaltender gloves. The Canada Border Services Agency had classified the gloves as “[g]loves, mittens [or] mitts”. Igloo Vikski argued they should have been classified as sporting equipment. The Canadian International Trade Tribunal (“CITT”) confirmed the initial classification. The Federal Court of Appeal reversed the decision.\n\nAcknowledging that the “specific expertise” of the CITT gave it the upper hand over a reviewing court with respect to certain questions of law, Justice Brown determined that the standard of review was reasonableness. Writing for seven other members of the Court, he carefully reviewed the reasons of the CITT and how it had engaged with Igloo Vikski’s arguments before turning to the errors alleged by Igloo Vikski and the Federal Court of Appeal. Conceding that the CITT reasons lacked “perfect clarity”, Justice Brown nevertheless concluded that the Tribunal’s interpretation was reasonable. While he agreed with Igloo Vikski that an alternate interpretation to that given by the CITT was available, the inclusive language of the applicable statute was broad enough to accommodate the CITT’s reasonable interpretation. By beginning with the reasons offered for the interpretation and turning to the challenges mounted against it in light of the surrounding context, Igloo Vikski provides an excellent example of respectful and properly deferential judicial review.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-217", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 312", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "We conclude our discussion of reasonableness review by addressing cases where reasons are neither required nor available for judicial review. In these circumstances, a reviewing court should remain focussed on whether the decision has been shown to be unreasonable. The reasonableness of the decision may be justified by past decisions of the administrative body (see Edmonton East, at paras. 38 and 44-46; Alberta Teachers’ Association, at paras. 56-64). In other circumstances, reviewing courts may have to assess the reasonableness of the outcome in light of the procedural context surrounding the decision (see Law Society of British Columbia v. Trinity Western University, [2018] 2 S.C.R. 293, at paras. 51-56; Edmonton East, at paras. 48‑60; Catalyst Paper Corp., at paras. 32-36). In all cases, the question remains whether the challenging party has demonstrated that a decision is unreasonable.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-218", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 313–315", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In sum, reasonableness review is based on deference to administrative decision-makers and to the legislative intention to confide in them a mandate. Deference must inform the attitude of a reviewing court and the nature of its analysis: the court does not ask how it would have resolved the issue before the administrative decision-maker but instead evaluates whether the decision-maker acted reasonably. The reviewing court starts with the reasons offered for the administrative decision, read in light of the surrounding context and based on the grounds advanced to challenge the reasonableness of the decision. The reviewing court must remain focussed on the reasonableness of the decision viewed as a whole, in light of the record, and with attention to the materiality of any alleged errors to the decision-maker’s reasoning process. By properly conducting reasonableness review, judges provide careful and meaningful oversight of the administrative justice system while respecting its legitimacy and the perspectives of its front-line, specialized decision-makers. Application to Mr. Vavilov\n\nAlexander Vavilov challenges the Registrar of Citizenship’s decision to cancel his citizenship certificate. The Registrar concluded that Mr. Vavilov was not a Canadian citizen, and therefore not entitled to a certificate of Canadian citizenship because, although he was born in Canada, his parents were “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2) (a) of the Citizenship Act , R.S.C. 1985, c. C-29 .\n\nThe first issue is the applicable standard of review. We agree with the majority that reasonableness applies.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-219", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 316–318", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The second issue is whether the Registrar was reasonable in concluding that the exception to Canadian citizenship in s. 3(2)(a) applies not only to parents who enjoy diplomatic privileges and immunities, but also to intelligence agents of a foreign government. The onus is therefore on Mr. Vavilov to satisfy the reviewing court that the decision was unreasonable. In our view, he has met that onus.\n\nMr. Vavilov was born in Canada in 1994. His Russian parents, Elena Vavilova and Andrey Bezrukov, entered Canada at some point prior to his birth, assumed the identities of two deceased Canadians and fraudulently obtained Canadian passports. After leaving Canada to live in France, Mr. Vavilov and his family moved to the United States. While in the United States, Mr. Vavilov’s parents became American citizens under their assumed Canadian identities. Mr. Vavilov and his older brother also obtained American citizenship.\n\nIn June 2010, agents of the United States Federal Bureau of Investigation arrested Mr. Vavilov’s parents and charged them with conspiracy to act as unregistered agents of a foreign government and to commit money laundering. Mr. Vavilov’s parents pleaded guilty to the conspiracy charges in July 2010 and were returned to Russia in a spy swap. Around the same time, Mr. Vavilov and his brother travelled to Russia. The American government subsequently revoked Mr. Vavilov’s passport and citizenship. In December 2010, he was issued a Russian passport and birth certificate.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-220", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 319–321", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "From 2010 to 2013, Mr. Vavilov repeatedly sought a Canadian passport. In December 2011, he obtained an amended Ontario birth certificate, showing his parents’ true names and places of birth. Using this birth certificate, Mr. Vavilov applied for and received a certificate of Canadian citizenship in January 2013. Relying on these certificates, Mr. Vavilov applied for an extension of his Canadian passport in early 2013. On July 18, 2013, the Registrar wrote to Mr. Vavilov, informing him that there was reason to believe the citizenship certificate had been erroneously issued and asking him for additional information.\n\nOn April 22, 2014, Mr. Vavilov provided extensive written submissions to the Registrar. He argued that the narrow exception set out in s. 3(2) of the Act does not apply to him. Because he was born in Canada, he is entitled to Canadian citizenship. Mr. Vavilov also argued that the Registrar had failed to respect the requirements of procedural fairness.\n\nThe Registrar wrote to Mr. Vavilov on August 15, 2014, cancelling his certificate of Canadian citizenship. In her view, because Mr. Vavilov met the two statutory restrictions in s. 3(2) of the Act, he was not a Canadian citizen. First, when Mr. Vavilov was born in Canada, neither of his parents were Canadian citizens or lawfully admitted to Canada for permanent residence. Second, as unofficial agents working for Russia’s Foreign Intelligence Service, Mr. Vavilov’s parents were “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2)(a).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-221", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 322–324", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Federal Court ([2016] 2 F.C.R. 39) dismissed Mr. Vavilov’s application for judicial review. It found that the Registrar had satisfied the requirements of procedural fairness and, applying a correctness standard, determined that the Registrar’s interpretation of s. 3(2)(a) was correct. The Federal Court then reviewed the application of s. 3(2)(a) on a reasonableness standard and concluded that the Registrar had reasonably determined that Mr. Vavilov’s parents were working in Canada as undercover agents of the Russian government at the time of his birth.\n\nThe Federal Court of Appeal ([2018] 3 F.C.R. 75) allowed the appeal and quashed the Registrar’s decision to cancel Mr. Vavilov’s citizenship certificate. Writing for the majority, Stratas J.A. agreed that the requirements of procedural fairness were met but held that the Registrar’s interpretation of s. 3(2)(a) was unreasonable. In his view, only those who enjoy diplomatic privileges and immunities fall within the exception to citizenship found in s. 3(2)(a). Justice Stratas reached this conclusion after considering the context and purpose of the provision, its legislative history and international law principles related to citizenship and diplomatic privileges and immunities.\n\nAs a general rule, administrative decisions are to be judicially reviewed for reasonableness. None of the correctness exceptions apply to the Registrar’s interpretation of the Act in this case. As such, the standard of review is reasonableness.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-222", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 325–326", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The following provisions of the Citizenship Act are relevant to this appeal: Persons who are citizens 3 (1) Subject to this Act, a person is a citizen if (a) the person was born in Canada after February 14, 1977; . . . Not applicable to children of foreign diplomats, etc. (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was (a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government; (b) an employee in the service of a person referred to in paragraph (a); or (c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a). The general rule embodied in s. 3(1)(a) of the Act is that persons born in Canada are Canadian citizens. Section 3(2) sets out an exception to this rule. As such, if s. 3(2) applies to Mr. Vavilov, he was never a Canadian citizen.\n\nThe specific issue in this case is whether the Registrar’s interpretation of the statutory exception to citizenship was reasonable. Reasonableness review entails deference to the decision-maker, and we begin our analysis by examining the reasons offered by the Registrar in light of the context and the grounds argued.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-223", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 327–328", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case, the Registrar’s letter to Mr. Vavilov summarized the key points underlying her decision. In concluding that Mr. Vavilov was not entitled to Canadian citizenship, the Registrar adopted the recommendations of an analyst employed by Citizenship and Immigration Canada. As such, the analyst’s report properly forms part of the reasons supporting the Registrar’s decision.\n\nThe analyst’s report sought to answer the question of whether Mr. Vavilov was erroneously issued a certificate of Canadian citizenship. The report identifies the key question in this case as being whether either of Mr. Vavilov’s parents was a “representative” or “employee” of a foreign government within the meaning of s. 3(2)(a). Much of the report relates to matters not disputed in this appeal, including the legal status of Mr. Vavilov’s parents in Canada and their employment as Russian intelligence agents.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-224", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 329–330", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The analyst began her analysis with the text of s. 3(2)(a). In concluding that the provision operates to deny Mr. Vavilov Canadian citizenship, she set out two textual arguments. First, she compared the current version of s. 3(2)(a) to an earlier iteration of the exception found in s. 5(3) of the Canadian Citizenship Act, R.S.C. 1970, c. C-19: Not applicable to children of foreign diplomats, etc. (3) Subsection (1) does not apply to a person if, at the time of that person’s birth, his responsible parent (a) is an alien who has not been lawfully admitted to Canada for permanent residence; and (b) is (i) a foreign diplomatic or consular officer or a representative of a foreign government accredited to Her Majesty, (ii) an employee of a foreign government attached to or in the service of a foreign diplomatic mission or consulate in Canada, or (iii) an employee in the service of a person referred to in subparagraph (i).\n\nThe analyst stated that the removal of references to official accreditation or a diplomatic mission indicate that the previous exception was narrower than s. 3(2)(a). She then pointed out that the definition of “diplomatic or consular officer” in s. 35(1) of the Interpretation Act , R.S.C. 1985, c. I-21 , clearly associates these individuals with diplomatic positions. Because the current version of s. 3(2)(a) does not link “other representative or employee in Canada of a foreign government” to a diplomatic mission, the analyst determined “it is reasonable to maintain that this provision intends to encompass individuals not included in the definition of ‘diplomatic and consular staff.’” Finally, the analyst stated that the phrase “other representative or employee in Canada of a foreign government” has not been previously interpreted by a court.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-225", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 331–333", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Beyond the analyst’s report, there is little in the record to supplement the Registrar’s reasons. There is no evidence about whether the Registrar has previously applied this provision to individuals like Mr. Vavilov, whose parents did not enjoy diplomatic privileges and immunities. Neither does there appear to be any internal policy, guideline or legal opinion to guide the Registrar in making these types of decisions.\n\nIn challenging the Registrar’s decision, Mr. Vavilov bears the onus of demonstrating why it is not reasonable. Before this Court, Mr. Vavilov submitted that the analyst focussed solely on the text of the exception to citizenship. In his view, had the broader objectives of s. 3(2)(a) been considered, the analyst would have concluded that “other representative” or “employee” only applies to individuals who benefit from diplomatic privileges and immunities.\n\nIn his submissions before the Registrar, Mr. Vavilov offered three reasons why the text of s. 3(2) must be read against the backdrop of Canadian and international law relating to the roles and functions of diplomats.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-226", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 334–335", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, Mr. Vavilov explained that s. 3(2)(a) should be read in conjunction with the Foreign Missions and International Organizations Act , S.C. 1991, c. 41 (“FMIOA ”). This statute incorporates into Canadian law aspects of the Vienna Convention on Diplomatic Relations, Can. T.S. 1966 No. 29, Sched. I to the FMIOA , and the Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25, Sched. II to the FMIOA , which deal with diplomatic privileges and immunities. He submitted that s. 3(2) denies citizenship to children of diplomats because diplomatic privileges and immunities, including immunity from criminal prosecution and civil liability, are inconsistent with the duties and responsibilities of a citizen. Because Mr. Vavilov’s parents did not enjoy such privileges and immunities, there would be no purpose in excluding their children born in Canada from becoming Canadian citizens.\n\nSecond, Mr. Vavilov provided the Registrar with Hansard committee meeting minutes such as the comments of the Hon. J. Hugh Faulkner, Secretary of State, when introducing the amendments to s. 3(2), who explained that the provision had been redrafted to narrow the exception to citizenship.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-227", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 336–337", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "Third, Mr. Vavilov cited case law, arguing that: (i) the exception to citizenship should be narrowly construed because it takes away substantive rights (Brossard (Town) v. Quebec Commission des droits de la personne, [1988] 2 S.C.R. 279, at p. 307); (ii) s. 3(2)(a) must be interpreted functionally and purposively (Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, at para. 8); and (iii) because Mr. Vavilov’s parents were not immune from criminal or civil proceedings, they fall outside the scope of s. 3(2) (Greco v. Holy See (State of the Vatican City), [1999] O.J. No. 2467 (QL) (S.C.J.); R. v. Bonadie (1996), 109 C.C.C. (3d) 356 (Ont. C.J.); Al-Ghamdi v. Canada (Minister of Foreign Affairs and International Trade) (2007), 64 Imm. L.R. (3d) 67 (F.C.)).\n\nThe Federal Court’s decision in Al-Ghamdi, a case which challenged the constitutionality of s. 3(2)(a), was particularly relevant. In that case, Shore J. wrote that s. 3(2)(a) only applies to the “children of individuals with diplomatic status” (paras. 5 and 65). Justice Shore also stated that “[i]t is precisely because of the vast array of privileges accorded to diplomats and their families, which are by their very nature inconsistent with the obligations of citizenship, that a person who enjoys diplomatic status cannot acquire citizenship” (para. 63).", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-228", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "para 338", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Registrar’s reasons failed to respond to Mr. Vavilov’s extensive and compelling submissions about the objectives of s. 3(2)(a). It appears that the analyst misunderstood Mr. Vavilov’s arguments on this point. In discussing the scope of s. 3(2), she wrote, “[c]ounsel argues that CIC [Citizenship and Immigration Canada] cannot invoke subsection 3(2) because CIC has not requested or obtained verification with the Foreign Affairs Protocol to prove that [Mr. Vavilov’s parents] held diplomatic or consular status with the Russian Federation while they resided in Canada.” It thus appears that the analyst did not recognize that Mr. Vavilov’s argument was more fundamental in nature — namely, that the objectives of s. 3(2) require the terms “other representative” and “employee” to be read narrowly. During discovery, in fact, the analyst acknowledged that her research did not reveal a policy purpose behind s. 3(2)(a) or why the phrase “other representative or employee” was included in the Act. It also appears that the analyst did not understand the potential relevance of the Al-Ghamdi decision, since her report stated that “[t]he jurisprudence that does exist only relates to individuals whose parents maintained diplomatic status in Canada at the time of their birth.”", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-229", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 339–340", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Registrar, in the end, interpreted s. 3(2)(a) broadly, based on the analyst’s purely textual assessment of the provision, including a comparison with the text of the previous version. This reading of “other representative or employee” was only reasonable if the text is read in isolation from its objective. Nothing in the history of this provision indicates that Parliament intended to widen its scope. Rather, as Mr. Vavilov points out, the modifications made to s. 3(2) in 1976 appear to mirror those embodied in the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, which were incorporated into Canadian law in 1977. The judicial treatment of this provision, in particular the statements in Al-Ghamdi about the narrow scope of s. 3(2)(a) and the inconsistency between diplomatic privileges and immunities and citizenship, also points to the need for a narrow interpretation of the exception to citizenship.\n\nIn addition, as noted by the majority of the Federal Court of Appeal, the text of s. 3(2)(c) can be seen as undermining the Registrar’s interpretation. That provision denies citizenship to children born to individuals who enjoy “diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a)”. As Stratas J.A. noted, this language suggests that s. 3(2)(a) covers only those “employee[s] in Canada of a foreign government” who have diplomatic privileges and immunities.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-18078-230", - "doc_type": "caselaw", - "act_code": "2019 SCC 65", - "act_short": "Vavilov", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", - "marginal_note": "paras 341–343", - "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", - "part": "Supreme Court of Canada", - "division": "", - "text": "By ignoring the objectives of the provision, the Registrar rendered an unreasonable decision. In particular, the arguments supporting a reading of s. 3(2) that is restricted to those who have diplomatic privileges and immunities, likely would have changed the outcome in this case.\n\nMr. Vavilov has satisfied us that the Registrar’s decision is unreasonable. As a result, the Court of Appeal properly quashed the Registrar’s decision to cancel Mr. Vavilov’s citizenship certificate, and he is thus entitled to a certificate of Canadian citizenship.\n\nWe would therefore dismiss the appeal with costs to Mr. Vavilov throughout. Appeal dismissed with costs throughout.", - "current_to": "2019-12-19", - "last_amended": "", - "history": "[2019] 4 SCR 653", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" - }, - { - "id": "scc-20081-1", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 1–2", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "These appeals require the Court to apply the framework for judicial review developed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, to two administrative decisions involving a question of statutory interpretation in the immigration context.\n\nThe statutory provision at issue, s. 34(1) (e) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), provides that permanent residents and foreign nationals are inadmissible to Canada on “security grounds” for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. The key point of disagreement among the administrative decision makers and courts below is whether the “acts of violence” listed as “security grounds” in s. 34(1)(e) require a link to national security or the security of Canada, or whether s. 34(1)(e) applies to acts of violence more broadly even without such a link.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-2", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 3–4", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Both administrative decisions under review interpreted s. 34(1)(e) as not requiring the acts of violence to have a link to national security or the security of Canada. In the first administrative decision, the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board of Canada (“IRB”) ruled that Mr. Earl Mason, a foreign national, could be found inadmissible under s. 34(1)(e) if his alleged violent conduct were established. Mr. Mason allegedly shot a gun and wounded two people when he was assaulted during a fight at a bar. Charges against him were stayed and he was not convicted of any criminal offence. In the second administrative decision, the Immigration Division (“ID”) of the IRB followed the IAD’s interpretation of s. 34(1)(e) in Mr. Mason’s case and ruled that Mr. Seifeslam Dleiow, a foreign national, was inadmissible under s. 34(1)(e) for acts of violence against two intimate partners. It was not alleged that either Mr. Mason or Mr. Dleiow engaged in acts of violence with a link to national security or the security of Canada.\n\nThe Federal Court allowed Mr. Mason and Mr. Dleiow’s applications for judicial review. In Mr. Mason’s case, in reasons released before this Court released Vavilov, the Federal Court ruled that it was unreasonable to interpret s. 34(1)(e) as applying to acts of violence without a nexus to national security. The Federal Court followed that approach in Mr. Dleiow’s case. Thus, neither Mr. Mason nor Mr. Dleiow was inadmissible. In both cases, the Federal Court also certified serious questions of general importance, so that the Federal Court of Appeal could consider whether it was reasonable to interpret s. 34(1)(e) as not requiring proof of conduct having a nexus to national security or the security of Canada.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-3", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 5–7", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Federal Court of Appeal allowed both appeals. In reasons addressing both cases — released after this Court released Vavilov — the Court of Appeal ruled that the IAD and ID had reasonably interpreted s. 34(1) (e) of the IRPA as not requiring a nexus to national security or the security of Canada.\n\nMr. Mason and Mr. Dleiow now appeal to this Court. Two issues arise. First, what standard of review should the reviewing courts have applied when reviewing the decisions of the IAD in Mr. Mason’s case and the ID in Mr. Dleiow’s case? Second, how should that standard of review have been applied in the circumstances?\n\nIn Vavilov, this Court revised the framework for determining the standard of review. The Court established a presumption that the standard of review of the merits of an administrative decision is reasonableness, subject to limited exceptions based on legislative intent or when required by the rule of law (paras. 10 and 17). The revised framework seeks to maintain the rule of law, while respecting a legislature’s intent to entrust certain decisions to administrative decision makers rather than courts (paras. 2 and 14). It also aims to bring simplicity, coherence, and predictability to the law on the standard of review and to eliminate the unwieldy exercise of determining the standard of review based on contextual factors, as had been required by this Court’s jurisprudence following Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Vavilov, at paras. 7 and 10).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-4", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 8–9", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Vavilov also explained how a court should conduct reasonableness review. This Court stressed that reasonableness review and correctness review are methodologically distinct (para. 12). Reasonableness review starts from a posture of judicial restraint and focusses on “the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place” (paras. 15 and 24). When an administrative decision maker is required to provide reasons for its decision, reasonableness review requires a “sensitive and respectful, but robust” evaluation of the reasons provided (para. 12). A reviewing court must take a “reasons first” approach that evaluates the administrative decision maker’s justification for its decision (para. 84). An administrative decision will be reasonable if it “is based on an internally coherent and rational chain of analysis and . . . is justified in relation to the facts and law that constrain the decision maker” (para. 85). This Court also affirmed “the need to develop and strengthen a culture of justification in administrative decision making” (para. 2).\n\nApplying the Vavilov framework to these appeals, I conclude that the standard of review of the administrative decisions at issue is reasonableness. No established exception to the presumption of reasonableness review applies, nor should any new exception be created on the basis that the appeals involved a serious question of general importance certified for appeal to the Federal Court of Appeal under s. 74 (d) of the IRPA . The certified question regime is a statutory mechanism for the Federal Court to provide for an appeal from a judicial review decision in certain circumstances.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-5", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 10–12", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Both administrative decisions were unreasonable. In particular, the IAD in Mr. Mason’s case, whose interpretation of s. 34(1)(e) was followed in Mr. Dleiow’s case, failed to consider three significant legal constraints bearing on its decision. First, the IAD failed to address critical points of statutory context that Mr. Mason had raised in his submissions to the IAD. Second, the IAD failed to address the potentially broad consequences of its interpretation, which again Mr. Mason had raised in his submissions. These omissions involved significant failures of “responsive justification” that would cause a reviewing court to lose confidence in the IAD’s decision. Third, the IAD failed to interpret and apply s. 34(1)(e) in compliance with international human rights instruments to which Canada is a signatory — specifically, the obligation of non-refoulement under Article 33(1) of the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”) — contrary to the express direction in s. 3(3) (f) of the IRPA that it must do so. The IAD’s failure to consider these three legal constraints rendered its decision unreasonable.\n\nIn these cases, the relevant legal constraints point overwhelmingly to a single reasonable interpretation of s. 34(1)(e) — a person can be found inadmissible under s. 34(1)(e) only if they engage in acts of violence with a nexus to national security or the security of Canada.\n\nAs a result, I would allow both appeals, set aside the judgments of the Federal Court of Appeal, allow the applications for judicial review, and quash the administrative decisions. II. Facts A. Mr. Earl Mason", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-6", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 13–14", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Earl Mason is a citizen of Saint Lucia and a “foreign national” in Canada — that is, he is neither a Canadian citizen nor a permanent resident (IRPA , s. 2(1) , “foreign national”). He is married to a Canadian citizen and has two daughters in Canada. He entered Canada in June 2010 and has remained here as a foreign national. He claimed refugee protection when he arrived in Canada, but he later withdrew this claim when he applied for permanent residence with his wife’s sponsorship.\n\nThe following allegations were made against Mr. Mason in the inadmissibility proceedings under review. In May 2012, Mr. Mason had an argument with a man at a concert in a bar in Surrey, British Columbia. The man broke a beer bottle over Mr. Mason’s head, and Mr. Mason responded by drawing a gun from his waistband and firing it eight times, wounding his assailant and another man. In May 2014, Mr. Mason was charged with two counts of attempted murder and two counts of discharging a firearm with intent to wound or disfigure. The shooting was not linked to terrorism or organized crime. In 2015, the charges were stayed because of delay. As a result, Mr. Mason was not found guilty of any criminal offence.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-7", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 15–16", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA sets out several grounds on which a permanent resident or foreign national may be found inadmissible, and thus may be denied entry to or be required to leave Canada (ss. 34 to 42). In April 2016, a Canada Border Services Agency (“CBSA”) officer prepared a report alleging that Mr. Mason was inadmissible on “security grounds” under s. 34(1) (e) of the IRPA , which provides that a permanent resident or foreign national is inadmissible for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. Section 34(1) states: Security 34 (1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests; (b) engaging in or instigating the subversion by force of any government; (b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).\n\nIn May 2016, a delegate of the Minister of Public Safety and Emergency Preparedness referred the CBSA’s inadmissibility report to the ID for an admissibility hearing. B. Mr. Seifeslam Dleiow", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-8", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 17–18", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Seifeslam Dleiow is a citizen of Libya and a foreign national in Canada. He entered Canada in June 2012 on a study permit, which expired in 2014. In 2015, he made a claim for refugee protection. In October 2017, the Refugee Protection Division of the IRB refused his claim, and in October 2018, the Refugee Appeal Division dismissed his appeal.\n\nIn September 2018, a CBSA officer prepared a report alleging that Mr. Dleiow was inadmissible on security grounds under s. 34(1)(e). The report alleged that since arriving in Canada, Mr. Dleiow had engaged in acts of violence against intimate partners and other persons. Criminal charges flowing from these incidents were stayed, except for 3 charges: being unlawfully in a dwelling house with intent to commit an indictable offence, mischief under $5,000, and uttering threats to cause death or bodily harm. Mr. Dleiow pleaded guilty to these charges and received a conditional discharge. A delegate of the Minister of Public Safety and Emergency Preparedness then referred the CBSA’s inadmissibility report to the ID for an admissibility hearing. III. Decisions Below A. Immigration Division Decision (Mr. Mason), 2018 CanLII 57522", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-9", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 19–20", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The ID addressed a preliminary question of law as to whether Mr. Mason’s alleged conduct, if proven, could be a ground of inadmissibility under s. 34(1)(e). The ID ruled that a “security groun[d]” under s. 34(1) means a threat to the security of Canada or another country, and that the act of violence in question must have some connection to a threat to the security of Canada. In the ID’s view, Mr. Mason’s alleged conduct involved “mere criminal offences”, which “although very serious”, lacked “any element that would elevate them to security grounds”, and thus s. 34(1)(e) could not apply (para. 24). B. Immigration Appeal Division Decision (Mr. Mason), 2019 CanLII 55171\n\nThe Minister of Public Safety and Emergency Preparedness appealed the ID’s decision in Mr. Mason’s case to the IAD, which allowed the Minister’s appeal, set aside the ID’s decision, and referred the matter back for a full hearing on the merits. The IAD concluded that inadmissibility under s. 34(1)(e) does not require a link to national security or the security of Canada. In the IAD’s view, “security” under s. 34(1)(e) relates to “security in a broader sense”, namely, to ensure “that individual Canadians are secure from acts of violence that would or might endanger their lives or safety” (para. 37). C. Immigration Division Decision (Mr. Dleiow), 2019 CanLII 129531", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-10", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 21–22", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Mr. Dleiow’s case, the ID saw no basis to depart from the IAD’s interpretation of s. 34(1)(e) in Mr. Mason’s case, and therefore affirmed that s. 34(1)(e) does not require a link to national security or the security of Canada. The ID also heard evidence and concluded that Mr. Dleiow was inadmissible because he had engaged in violent acts against two intimate partners, which there were reasonable grounds to believe had endangered their safety. The ID based this conclusion on a guilty plea for acts relating to one intimate partner, and on testimony and police occurrence reports relating to the other intimate partner. As a result, the ID ruled that Mr. Dleiow was inadmissible and issued a deportation order. D. Federal Court Decision (Mr. Mason), 2019 FC 1251, [2020] 2 F.C.R. 3 (Grammond J.)\n\nThe Federal Court granted Mr. Mason’s application for judicial review of the IAD’s decision. The court held that the IAD’s interpretation of s. 34(1) (e) of the IRPA was unreasonable because it disregarded the structure of the Act and rendered meaningless statutory provisions for inadmissibility based on criminality. In the Federal Court’s view, s. 34(1)(e) requires a link to national security.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-11", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 23", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Federal Court — whose reasons were released before this Court released Vavilov — outlined how a reviewing court should evaluate the reasonableness of an administrative decision maker’s interpretation of a statute. In the Federal Court’s view, a reviewing court must ensure that an administrative decision maker did not overlook a very strong argument — a “knock-out punch”, that is, an interpretation that is internally consistent, withstands scrutiny, and is not met by a countervailing interpretation of similar force — or choose an interpretation when the interpretive “clues” point overwhelmingly in the other direction.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-12", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 24", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Federal Court ruled that the IAD’s interpretation of s. 34(1)(e) was unreasonable because it conflicted with the broader structure of the IRPA , thus undermining Parliament’s intent. In the court’s view, this structural argument was a “knock-out punch”. The IAD’s decision upset the carefully crafted structure of the IRPA by including under s. 34(1)(e) a vast range of conduct that “would or might endanger the lives or safety of persons in Canada”. This would thwart Parliament’s intent by bringing under the most serious category of inadmissibility conduct falling below the thresholds for less serious categories of inadmissibility, and it would discard Parliament’s choice under s. 36 of the IRPA to require a conviction when criminal conduct was committed in Canada. Section 36(1) and (2) of the IRPA provide for inadmissibility based on “serious criminality” and “criminality” as follows: Serious criminality 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-13", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 24–26", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Criminality (2) A foreign national is inadmissible on grounds of criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence; (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.\n\nThe Federal Court found all the countervailing points of interpretive context unpersuasive and ruled that only one reasonable interpretation was available. It therefore quashed the IAD’s decision and restored the ID’s decision.\n\nThe Federal Court certified the following serious question of general importance for appeal to the Federal Court of Appeal: Is it reasonable to interpret s. 34(1) (e) of the IRPA in a manner that does not require proof of conduct that has a nexus with “national security” or “the security of Canada”? E. Federal Court Decision (Mr. Dleiow), 2020 FC 59 (Barnes J.)", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-14", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 27–29", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Federal Court allowed Mr. Dleiow’s application for judicial review of the ID’s decision. The court applied the Federal Court’s reasoning in Mr. Mason’s case for reasons of comity, set aside the ID’s decision and ordered the matter be reconsidered on the merits by a different decision maker. The court also certified the same serious question of general importance. F. Federal Court of Appeal (Mr. Mason and Mr. Dleiow), 2021 FCA 156, [2022] 1 F.C.R. 3 (Stratas J.A., Rennie and Mactavish JJ.A. concurring)\n\nThe Federal Court of Appeal decided the appeals in Mr. Mason’s and Mr. Dleiow’s cases together, after this Court had released Vavilov. The court held that the administrative decisions reasonably interpreted s. 34(1)(e) as not requiring a nexus with national security or the security of Canada.\n\nThe Court of Appeal began by discussing how a court should conduct reasonableness review. The court said that “Vavilov tells us much but it leaves some things unclear” (para. 9). The court cautioned that a reviewing court should not fashion its own yardstick and use it to measure what the administrator did, but should instead conduct “a preliminary analysis of the text, context and purpose of the legislation just to understand the lay of the land before they examine the administrators’ reasons” (para. 17). The Court of Appeal also criticized the Federal Court’s “knock-out punch” approach in Mr. Mason’s case as involving disguised correctness review.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-15", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 30", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court of Appeal concluded that the IAD was alive to the essential elements of s. 34(1)(e)’s text, context, and purpose, and saw no omitted aspects that would cause a loss of confidence in the outcome. It rejected Mr. Mason’s argument that reading s. 34(1)(e) without a nexus to national security is inconsistent with the broader statutory context. The court ruled that the IAD reasonably concluded that the conduct captured by s. 34(1)(e), which speaks of the danger posed to the “lives or safety” of persons in Canada, is only a small subset of what would be considered serious criminality under s. 36 of the IRPA . Sections 34 and 36 address two different matters — conduct and convictions, respectively (para. 55). Section 36 is much broader, and applies to much non-violent criminal behaviour; s. 34(1)(e) is narrower, and applies only to acts of violence. The court noted that when the IAD said that s. 34(1)(e) is not absurdly broad because the conduct captured by the provision is “narrowly defined”, this could only mean that it interpreted “safety” in s. 34(1)(e) as “something approaching the level of a threat to life, not just minor harm” (para. 57). The court stated that although the IAD did not address certain contextual arguments, this failure was not a fundamental gap and did not cause the court to lose confidence in its outcome so as to make its decision unreasonable.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-16", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 31–35", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "In contending that s. 34(1)(e) requires a nexus with national security or the security of Canada, Mr. Mason also invoked the Refugee Convention and the 1967 Protocol Relating to the Status of Refugees, Can. T.S. 1969 No. 29 (“Refugee Protocol”). The Court of Appeal declined to entertain this argument because it viewed this as a new issue that should have been raised before the IAD, and because “certain background documents and other instruments needed to understand any international obligations” were not in evidence (para. 74).\n\nThe Court of Appeal concluded that some elements of s. 34(1)(e)’s text, context, and purpose favoured the need for a nexus with national security or the security of Canada, while others did not. It stated that “the issue of legislative interpretation is best described as one where the issue is open to some debate” (para. 76).\n\nIn the result, the Court of Appeal ruled that it is reasonable to interpret s. 34(1) (e) of the IRPA in a manner that does not require proof of conduct with a nexus to “national security” or “the security of Canada”. The court therefore allowed the appeals, set aside the judgments of the Federal Court, and dismissed the applications for judicial review. IV. Issues\n\nThese appeals raise two issues: (1) What is the appropriate standard of review of the administrative decisions at issue? (2) Was that standard of review applied properly in these cases? V. Analysis\n\nIn what follows, I first address the applicable standard of review and explain why it is reasonableness. I then summarize Vavilov’s guidance on conducting reasonableness review and apply that guidance to these cases. I conclude that the administrative decision makers’ reasons involved failures of justification that made their decisions unreasonable. A. The Standard of Review", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-17", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 36", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first issue concerns the appropriate standard of review. As this Court has noted, “[a] reviewing judge’s selection and application of the standard of review is reviewable for correctness” (Northern Regional Health Authority v. Horrocks, 2021 SCC 42, at para. 10, citing Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45‑47). An appellate court must “ste[p] into the shoes” of the lower court and focus on the administrative decision under review (Agraira, at para. 46, citing Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247, per Deschamps J., dissenting). On this approach, an appellate court “accords no deference to the reviewing judge’s application of the standard of review”, but rather “performs a de novo review of the administrative decision” (Horrocks, at para. 10, citing D. J. M. Brown, with the assistance of D. Fairlie, Civil Appeals (loose-leaf), at § 14:45). None of these principles was changed by this Court’s decision in Vavilov. As a result, the issue is whether the Federal Court selected the correct standard of review and applied it properly (Agraira, at para. 47).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-18", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 37", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Before this Court, the appellant Mr. Mason and the intervener the Canadian Association of Refugee Lawyers assert that the standard of review is correctness. Citing pre-Vavilov jurisprudence, they say that because the appeal to the Federal Court of Appeal involved a “serious question of general importance” certified under s. 74 (d) of the IRPA , it would be “incoherent” if the standard were not correctness (A.F., at para. 49, citing Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 43). The certified question regime under s. 74 (d) of the IRPA provides a mechanism for the Federal Court to provide for a statutory appeal of a judicial review decision that raises a serious question that is dispositive of the appeal, transcends the interests of the parties, and raises an issue of broad significance or general importance (Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674, at para. 46; Canada (Immigration and Citizenship) v. Laing, 2021 FCA 194, at para. 11 (CanLII); see also Canada (Public Safety and Emergency Preparedness) v. XY, 2022 FCA 113, 89 Imm. L.R. (4th) 173, at para. 7). The appellant Mr. Mason and the intervener the Canadian Association of Refugee Lawyers say that the certified question regime “weighs in favour of a correctness standard” and “evinces a particular concern that questions of general importance be appropriately resolved” (A.F., at para. 49, citing Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 23; see also I.F., at paras. 4‑10).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-19", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 38–39", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "I respectfully disagree with this submission. In my view, the standard of review of the administrative decisions is reasonableness. This conclusion rests on three propositions: (1) Vavilov established that the standard of review of the merits of an administrative decision is presumptively reasonableness; (2) no established exception to the presumption of review for reasonableness applies in these cases; and (3) the certified question regime under s. 74 (d) of the IRPA does not displace the presumption of reasonableness review and warrant recognition of a new category of correctness. I will address each point in turn. (1) The Standard of Review Is Presumptively Reasonableness\n\nIn Vavilov, this Court established a presumption that when a court reviews the merits of an administrative decision, the standard of review is reasonableness (para. 16; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at para. 27). This presumption is rebutted in two types of situations, which together provide six categories of correctness review (Vavilov, at paras. 17 and 69; Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at para. 40). The first type of situation is where the legislature has indicated that it intends a different standard or set of standards to apply, and the second type of situation is where the rule of law requires that the standard of correctness be applied (Vavilov, at para. 17). Vavilov thus sets out a “general rule” of reasonableness review, “subject to limited exceptions” (D. Mullan, “Reasonableness Review Post-Vavilov: An ‘Encomium for Correctness’ or Deference As Usual?” (2021), 23 C.L.E.L.J. 189, at p. 200).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-20", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 40–42", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first situation, based on legislative intent, provides for two categories of correctness review: when the legislature explicitly prescribes the standard of review, and when it provides for an appeal from an administrative decision to a court, thus signalling that appellate standards of review apply (Vavilov, at para. 17; Canada Post, at para. 27).\n\nAs for the second situation, Vavilov set out three categories of questions that the rule of law requires to be reviewed on a standard of correctness: constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies (para. 17; Canada Post, at para. 27).\n\nAt the time it was rendered, Vavilov thus recognized five categories of correctness review: (1) legislated standards of review; (2) statutory appeal mechanisms; (3) constitutional questions; (4) general questions of law of central importance to the legal system as a whole; and (5) questions related to the jurisdictional boundaries between two or more administrative bodies (paras. 17 and 69).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-21", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 43–45", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the same time, Vavilov did not definitively foreclose the possibility of recognizing new categories of correctness “[i]n rare and exceptional circumstances . . . when applying reasonableness would undermine legislative intent or the rule of law in a manner analogous to the five correctness categories” already identified (Society of Composers, at para. 27; Vavilov, at para. 70). This Court recently recognized a sixth category of correctness review in Society of Composers, a case involving copyright royalties for works accessed online: (6) “when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute” (para. 28). The Court noted that both the Copyright Board and the courts have concurrent first instance jurisdiction regarding the interpretation of the Copyright Act , R.S.C. 1985, c. C-42 , which signals “a legislative intent for judicial involvement” (para. 31) and highlights the need for consistent and definitive interpretation of the Copyright Act to maintain the rule of law (paras. 33‑35).\n\nThe presumption of reasonableness review and the limited circumstances in which it is rebutted provide a comprehensive framework for determining the standard of review. This framework brings simplicity, coherence, and predictability to the law on the standard of review, since reviewing courts need no longer conduct an unwieldy “contextual” inquiry to identify the appropriate standard of review, as had been the case in the period before Vavilov (Vavilov, at paras. 7 and 17). (2) No Established Exception to the Presumption Applies\n\nNone of the established exceptions to the presumption of reasonableness review applies in these cases.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-22", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 46", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, the legislature has not explicitly prescribed the standard of review or provided a statutory appeal mechanism from an administrative decision to a court. The present cases proceeded to the Federal Court on applications for judicial review under s. 72(1) of the IRPA , which does not prescribe the standard of review.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-23", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 47", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, the standard of correctness is not required based on the rule of law. The proper interpretation of s. 34(1) (e) of the IRPA is not a “general question of law of central importance to the legal system as a whole” under Vavilov (paras. 58‑62). Such “general questions of law” require uniform and consistent answers because of their impact on the administration of justice as a whole or for other institutions of government (para. 59). Examples of general questions of law include questions with legal implications for many other statutes or for the proper functioning of the justice system as a whole (paras. 59‑61). It is not enough for the question to “touc[h] on an important issue” or to raise an issue of “wider public concern” (para. 61). Although the proper interpretation of s. 34(1)(e) is important for the affected persons and the proper administration of the IRPA , it does not affect the legal system or the administration of justice as a whole, have legal implications for many other statutes, or affect other institutions of government. Rather, the issues raised are particular to the interpretation of the conditions for inadmissibility under s. 34(1)(e). Moreover, the proper interpretation of s. 34(1)(e) is not a constitutional question or a question related to the jurisdictional boundaries between two or more administrative bodies, nor does it engage the correctness category recognized in Society of Composers. Thus, the rule of law does not require the Federal Court to review an administrative interpretation of s. 34(1)(e) for correctness. (3) The Certified Question Regime Under the IRPA Does Not Displace the Presumption", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-24", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 48", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Nor does the certified question regime under s. 74 (d) of the IRPA displace the presumption of reasonableness review and warrant a new category of correctness. As I will explain, the Federal Court’s certification of a question for appeal to the Federal Court of Appeal provides for a statutory appeal of the Federal Court’s decision to the Federal Court of Appeal, but it does not change the standard of review to be applied by either court.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-25", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 49", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "To begin with, it is obvious that the Federal Court’s decision to certify a serious question of general importance under s. 74(d) does not affect the standard of review to be applied by the Federal Court itself on the application for judicial review under s. 72(1) of the IRPA . The Federal Court does not certify the question until it is rendering its judgment on the application for judicial review. Section 74(d) provides that an appeal to the Federal Court of Appeal may be made “only if, in rendering judgment, the [Federal Court] certifies that a serious question of general importance is involved and states the question”. In effect, the certified question procedure plays a gatekeeping role by requiring the matter to meet a threshold of importance to merit an appeal to the Federal Court of Appeal. As this Court has stated, the certified question “may be the ‘trigger’ by which an appeal is permitted”, but the “subject of the appeal is still the judgment itself, not merely the certified question” (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at para. 44, citing Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 12). Thus, the certified question regime does not amount to “rare and exceptional circumstances” in which the Federal Court applying reasonableness review would undermine legislative intent or the rule of law in a manner analogous to the existing correctness categories (Society of Composers, at paras. 27 and 41).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-26", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 50", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The issue is then whether the certification of a serious question of general importance requires correctness review by the Federal Court of Appeal or this Court, either because of a legislative intent to apply correctness review or because it is required by the rule of law. In my view, the answer is no.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-27", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 51", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "As a matter of precedent, this Court has concluded in the immigration context that “[d]espite the presence of a certified question, the . . . standard of review is reasonableness” (Kanthasamy, at para. 44; see also Baker, at para. 62). Vavilov does not require that conclusion to be revisited. Certification of a question under s. 74 (d) of the IRPA does not signal that the legislature intended that appellate courts apply correctness review. As noted above, the Federal Court of Appeal’s task in an appeal from a decision of the Federal Court in an application for judicial review — including in an appeal based on a certified question — is to determine whether the Federal Court identified the appropriate standard of review, and then to decide whether it applied that standard properly (Agraira, at paras. 45‑47; Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, 468 D.L.R. (4th) 358, at para. 38, citing Horrocks, at para. 10). The Federal Court of Appeal must “step into the shoes” of the Federal Court and apply the same standard of review that it should have applied (Galindo Camayo, at para. 38, citing Kanthasamy, at para. 44). Here, the Federal Court had to judicially review the administrative decisions for reasonableness. The Federal Court of Appeal, when stepping into the shoes of the Federal Court on the certified question, had to do likewise. As a result, the certified question regime neither rebuts the presumption of reasonableness, nor alters the Court of Appeal’s task when it hears appeals from first instance judicial review decisions.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-28", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 52–53", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "What is more, recall that Vavilov itself involved an appeal to the Federal Court of Appeal on a certified question of general importance under s. 22.2 (d) of the Citizenship Act , R.S.C. 1985, c. C-29 , which provides — in terms materially identical to s. 74 (d) of the IRPA — that “an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question”. This Court in Vavilov reviewed the administrative decision at issue for reasonableness, noting that there was “no indication that the legislature intended a standard of review other than reasonableness to apply” (para. 170).\n\nFinally, recognizing a new correctness category here would conflict with Vavilov’s goal of simplifying and making more predictable the standard of review framework by providing only limited exceptions to reasonableness review (para. 47). Treating s. 74(d) as justifying correctness review would effectively reintroduce a “contextual” approach to the standard of review — with the certification of a serious question of general importance being a “contextual” factor suggesting correctness — and thus would revive the approach that Vavilov eliminated because it created “uncertainty” and was “unwieldy” (para. 7; see also P. Daly, “Unresolved Issues after Vavilov” (2022), 85 Sask. L. Rev. 89, at pp. 91-92 (Vavilov is “an exercise in simplification and clarification” that “excised” the “‘vexing contextual factors’ . . . from the standard of review selection exercise”.)). (4) Conclusion", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-29", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 54–56", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "I conclude that no exception to the presumption of reasonableness applies in these cases. As a result, the standard of review of the decisions of the IAD in Mr. Mason’s case and the ID in Mr. Dleiow’s case is reasonableness. B. Reasonableness Review\n\nI now turn to the second issue in these appeals: whether the administrative decisions under review were reasonable. This section recaps Vavilov’s guidance on conducting reasonableness review and comments briefly on the methodology of reasonableness review conducted by the courts below. The following section then applies reasonableness review to the two administrative decisions at issue. (1) Vavilov’s Guidance on Reasonableness Review of Administrative Decisions\n\nVavilov provided extensive guidance on conducting reasonableness review of administrative decisions (paras. 73-142). Without canvassing every detail of that guidance, the main elements of reasonableness review can be summarized as follows. (a) The Purpose of Reasonableness Review: Upholding the Rule of Law While According Deference", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-30", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 57–58", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Vavilov explained that the purpose of reasonableness review is “to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law” (para. 82). Reasonableness review starts from a posture of judicial restraint and “a respect for the distinct role of administrative decision makers” (para. 13), arising from the legislature’s institutional design choice to give administrative decision makers rather than courts the jurisdiction to decide certain issues (para. 24). Reasonableness review also serves to “maintain the rule of law” (para. 2) and “to safeguard the legality, rationality and fairness of the administrative process” (para. 13). Thus, the purpose of reasonableness review is to uphold “the rule of law, while according deference to the statutory delegate’s decision” (Canada Post, at para. 29). (b) A “Reasons First” Approach\n\nVavilov noted that, given the deference owed to an administrative decision, reasonableness review is “methodologically distinct” from correctness review (para. 12). The Court explained that “[w]hat distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place” (para. 15). Reasonableness review is thus concerned with both the administrator’s decision-making process and the outcome (paras. 83 and 87; see also Canada Post, at para. 29).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-31", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 59", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "When an administrative decision maker is required by the legislative scheme or the duty of procedural fairness to provide reasons for its decision, the reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable” (Vavilov, at para. 81).[1] The purpose of reasons is to “demonstrate ‘justification, transparency and intelligibility’” (para. 81). Reasons are “the means by which the decision maker communicates the rationale for its decision” (para. 84). This Court emphasized that “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies” (para. 86 (emphasis in original)).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-32", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 60", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "A decision will be unreasonable when the reasons “fail to provide a transparent and intelligible justification” for the result (para. 136). A reviewing court must therefore take a “reasons first” approach that evaluates the administrative decision maker’s justification for its decision (para. 84). It must “begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion” (para. 84, citing D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286). As noted by Professor David Mullan, the “reasons first” approach “underscores a commitment to deference” and requires that reasons are “the principal lens through which the exercise of reasonableness review takes place” (p. 202). Thus, as he explains, “the starting or focal point for the conducting of truly deferential reasonableness review should be the reasons provided by the decision-maker” (p. 215; see also Daly (2022), at pp. 108-10).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-33", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 61", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Under Vavilov’s “reasons first” approach, the reviewing court should remember that “the written reasons given by an administrative body must not be assessed against a standard of perfection”, and need not “include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” (para. 91). The reviewing judge must read the administrator’s reasons “holistically and contextually” (para. 97), “in light of the history and context of the proceedings in which they were rendered”, including “the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body” (para. 94). Reasons must be read “in light of the record and with due sensitivity to the administrative regime in which they were given” (para. 103). Such factors may “explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency” (para. 94).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-34", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 62", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "A reviewing court should also avoid engaging in “disguised correctness review”, or correctness in the guise of reasonableness (para. 294, per Abella and Karakatsanis JJ., concurring in the result; see also Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, at para. 27, citing D. Mullan, “Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action — The Top Fifteen!” (2013), 42 Adv. Q. 1, at pp. 76‑81). Because “[t]he role of courts in these circumstances is to review”, they should, as a general rule, “refrain from deciding the issue themselves” (Vavilov, at para. 83 (emphasis in original)). A reviewing court should not create its “own yardstick and then use [it] to measure what the administrator did” (para. 83, and Canada Post, at para. 40, both citing Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin. L.R. (5th) 301, at para. 28). Nor should a reviewing court ask “what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem” (Vavilov, at para. 83; see also Canada Post, at para. 40). Rather, a “reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable” (Vavilov, at para. 83).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-35", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 63–65", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, Vavilov cautioned that the “reasons first” approach is “not a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability” (para. 13). Instead, it is “a robust form of review” (para. 13; see also paras. 12, 67 and 138), one that highlights “the need to develop and strengthen a culture of justification in administrative decision making” (para. 2). (c) Indicators of Unreasonableness\n\nVavilov identified two types of “fundamental flaws” indicating that an administrative decision is unreasonable: (1) a failure of rationality internal to the reasoning process; or (2) a failure of justification given the legal and factual constraints bearing on the decision (para. 101). A reviewing court need not categorize unreasonableness as falling into one category or another. They are simply a helpful way of describing how a decision may be unreasonable (para. 101). (i) Failures of Rationality in the Reasoning Process\n\nA failure of rationality in the reasoning process arises if the decision is not rational or logical (paras. 102‑4). A decision is unreasonable if, “read holistically”, it “fail[s] to reveal a rational chain of analysis” or “reveal[s] that the decision was based on an irrational chain of analysis” (para. 103). A reviewing court “must be able to trace the decision maker’s reasoning without encountering any fatal flaws” in the decision maker’s “overarching logic” (para. 102). It must “be satisfied that the decision maker’s reasoning ‘adds up’” (para. 104). (ii) Failures of Justification in Light of the Legal and Factual Constraints", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-36", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 66", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "A failure of justification in light of the legal and factual constraints bearing on the decision arises if the decision is not “justified in relation to the constellation of law and facts that are relevant to the decision” (para. 105). The legal and factual context “operate as constraints on the decision maker in the exercise of its delegated powers” (para. 105). The burden of justification varies with the circumstances, including the wording of the relevant statutory provisions, the applicable precedents, the evidence, the submissions of the parties, and the impact of the decision on the affected persons. The greater the interpretive constraints in a given case, the greater the burden of justification on the decision maker in deviating from those constraints (see M. Popescu, “L’arrêt Vavilov: à la recherche de l’équilibre perdu entre la primauté du droit et la suprématie législative” (2021), 62 C. de D. 567, at p. 603). Examples include the seven non-exhaustive constraints set out below. As was highlighted in Vavilov, “[t]hese elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached” (para. 106). 1. The Governing Statutory Scheme", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-37", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 67–68", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Whether an interpretation of the governing statutory scheme is justified will “depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority” (para. 110). Narrower and more precise language imposes a greater constraint on the decision maker, while “broad, open-ended or highly qualitative language” affords greater flexibility (para. 110). What matters is whether the decision maker has “properly justified its interpretation of the statute in light of the surrounding context” (para. 110). 2. The Principles of Statutory Interpretation\n\nAs already noted, a court evaluating the reasonableness of an administrative decision on a question of statutory interpretation “does not undertake a de novo analysis of the question or ‘ask itself what the correct decision would have been’” (para. 116). Instead, the court “must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached” (para. 116).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-38", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 69", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although an administrative decision maker need not “engage in a formalistic statutory interpretation exercise in every case” (para. 119), its decision must be consistent with the “modern principle” of statutory interpretation, which focusses on the text, context, and purpose of the statutory provision. The decision maker must demonstrate in its reasons that it was alive to those essential elements (para. 120). The omission of a minor aspect of the text, context, or purpose is unlikely to undermine the decision as a whole: omissions are not “stand-alone grounds for judicial intervention” (para. 122). In each case, “the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker” (para. 122). For example, an administrative interpretation may well be unreasonable if it fails to consider the potentially harsh consequences of its interpretation of a statutory provision for a large class of individuals, and whether, in light of those consequences, the legislature would have intended the provision to apply in that way (paras. 191-92). And even if a decision does not explicitly consider the meaning of a relevant provision, the court may be able to discern the interpretation adopted from the record and evaluate whether it is reasonable (para. 123).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-39", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 70", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "In interpreting a statute, an administrative decision maker may draw on its institutional expertise and experience and rely on considerations that a court would not have thought to employ, but which “enrich and elevate the interpretive exercise” (paras. 93 and 119; Canada Post, at para. 43). As Professor Audrey Macklin explains, courts should be “genuinely receptive to input beyond the usual techniques that courts use to discern text, context and purpose. These may include operational implications, alignment with broader statutory mandate, and so on” (“Seven Out of Nine Legal Experts Agree: Expertise No Longer Matters (in the Same Way) After Vavilov!” (2021), 100 S.C.L.R. (2d) 249, at p. 261). By being receptive to such factors, courts acknowledge that administrative decision makers have a role to play in elaborating the content of the schemes that they administer (Vavilov, at para. 108). Reasonableness review demands both that administrative decision makers demonstrate their expertise through their reasons and that judges pay “[r]espectful attention” to the ways in which their reasons reflect that expertise (para. 93; P. Daly, “Vavilov and the Culture of Justification in Contemporary Administrative Law” (2021), 100 S.C.L.R. (2d) 279, at pp. 285‑86).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-40", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 71–72", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, a court may conclude during a reasonableness review that “the interplay of text, context and purpose leaves room for a single reasonable interpretation of the statutory provision, or aspect of the statutory provision” (Vavilov, at para. 124, citing Dunsmuir, at paras. 72‑76, and Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52). In such a case, although a court should “generally pause before definitively pronouncing upon the interpretation” of a statutory provision, the court may conclude that remitting the question to the administrative decision maker may serve no useful purpose (Vavilov, at para. 124). It must be stressed that the possibility of a single reasonable interpretation is not a starting point of reasonableness review, as this would be contrary to a “reasons first” approach. Rather, it is a conclusion that a reviewing court may draw as a result of a proper reasonableness review, as part of the court’s consideration of the appropriate remedy. 3. Relevant Statutory Law, Common Law, and International Law\n\nStatutory law, common law, and international law may operate as legal constraints on an administrative decision maker (paras. 111 and 114). An administrative decision will be unreasonable if it fails to justify a departure from binding precedents (para. 112). International law can also operate as an important constraint, arising from the presumption that legislation is presumed to operate in conformity with Canada’s international obligations and the values and principles of customary and conventional international law, or by informing whether a decision was a reasonable exercise of administrative authority (para. 114). 4. The Evidence and Facts Before the Decision Maker", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-41", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 73–75", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Absent exceptional circumstances, a reviewing court will defer to an administrative decision maker’s factual findings (para. 125). A reviewing court may intervene, however, if the decision is unreasonable: if it is not “justified in light of the facts” or when “the decision maker has fundamentally misapprehended or failed to account for the evidence before it” (para. 126). 5. The Submissions of the Parties\n\nAn administrative decision maker’s reasons must “meaningfully account for the central issues and concerns raised by the parties” (para. 127). Reasons must be “responsive” to the parties’ submissions, because reasons are the “primary mechanism by which decision makers demonstrate that they have actually listened to the parties” (para. 127 (emphasis in original)). Although an administrative decision does not have to “respond to every argument or line of possible analysis” raised by the parties, “a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it” (para. 128). 6. The Past Practices and Decisions of the Administrative Body\n\nAdministrative decision makers should be concerned with the general consistency of their decisions, even if they are not bound by their prior decisions in the same way that courts are bound by stare decisis (para. 129). A decision will be unreasonable if the reasons fail to meet the “justificatory burden” for departing from “longstanding practices or established internal authority” (para. 131). 7. The Potential Impact of the Decision on the Affected Individual", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-42", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 76–78", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Vavilov also explained that “[w]here the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes” (para. 133). The principle of “responsive justification” means that if a decision has “particularly harsh consequences for the affected individual”, then “the decision maker must explain why its decision best reflects the legislature’s intention” (para. 133). An administrative decision may be unreasonable if it fails to grapple with particularly severe or harsh consequences for the affected individual (para. 134). An administrative decision maker’s reasons must “demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law” (para. 135).\n\nHaving set out Vavilov’s guidance on conducting reasonableness review, I now comment briefly on the approach to reasonableness review of the courts below. (2) Methodology of Reasonableness Review in the Courts Below\n\nThe Federal Court in Mr. Mason’s case did not have the benefit of Vavilov, and therefore did not apply Vavilov’s “reasons first” approach in judicially reviewing the administrative decisions. The Federal Court essentially conducted its own freestanding interpretation of s. 34(1)(e) based on the provision’s text, context, and purpose (paras. 38‑51), and then evaluated the administrative decisions against that interpretation (paras. 52‑62). As the Court of Appeal noted, this involved the Federal Court “fashioning its own yardstick to measure the administrator’s interpretation and interfering if the difference is too much” (para. 24). This approach was eschewed in this Court’s decision in Vavilov.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-43", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 79–80", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "But the Federal Court of Appeal also strayed from Vavilov’s methodology of reasonableness review. The Court of Appeal grafted onto Vavilov an extra step of “conducting a preliminary analysis of the text, context and purpose of the legislation just to understand the lay of the land before . . . examin[ing] the administrators’ reasons” (para. 17). The parties before this Court contended that this preliminary step is inconsistent with Vavilov. The respondent Minister of Citizenship and Immigration — who otherwise agreed with the Court of Appeal’s conclusion — submitted that the Court of Appeal’s approach “should not be adopted”, and urged that “[t]he focus in the reasonableness analysis needs to remain, as this Court has instructed, on the reasons of the decision-maker, and not on a range of potential conclusions to be determined by a reviewing court in the abstract” (R.F., at para. 54). I agree. Vavilov is clear that a reviewing court must start its analysis with the reasons of the administrative decision maker; starting with its own perception of the merits may lead a court to slip into correctness review. C. Were the Administrative Decisions Reasonable?\n\nI now turn to consider whether the administrative decisions under review reasonably interpreted s. 34(1) (e) of the IRPA as not requiring a nexus with national security or the security of Canada.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-44", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 81–82", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "In reviewing the IAD’s reasons, I recall this Court’s instruction in Vavilov that a reviewing court should conduct reasonableness review mindful of the impact of the decision on the affected individual. The principle of “responsive justification” means that “[w]here the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes” (para. 133). Here, the interpretation of s. 34(1)(e) will affect whether two individuals — one of whom has not been convicted of a criminal offence — could be deported from Canada. As this Court has noted, individuals facing deportation may experience “any number of serious life-changing consequences”, including dislocation or permanent separation from their family (R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 72, per Wagner J. (as he then was), dissenting). The IAD’s reasons must reflect these stakes.\n\nI begin by summarizing in greater detail the interpretation of s. 34(1)(e) in the reasons of the IAD in Mr. Mason’s case, which were followed by the ID in Mr. Dleiow’s case, before addressing what the appellants say are failures of justification in the IAD’s reasons. (1) The IAD’s Reasons in Mr. Mason’s Case", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-45", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 83", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IAD in Mr. Mason’s case ruled that a person can be inadmissible under s. 34(1) (e) of the IRPA even without violent conduct linked to national security or the security of Canada. It decided the appeal based on the parties’ written submissions, and concluded that Parliament intended s. 34(1)(e) to “relate to security in a broader sense”, including by ensuring that “individual Canadians are secure from acts of violence that would or might endanger their lives or safety” (para. 37). The IAD’s chain of reasoning was as follows: • Section 34(1)(e) cannot be read in isolation. The provision must be interpreted using the modern approach to statutory interpretation. The words used in s. 34(1)(e) must be assessed “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (para. 17, citing Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21). • The other paragraphs of s. 34(1) all have a nexus to national security, which may be a signal of Parliament’s intent, but is not determinative. Context comes not just from “the immediate co-text, but from the overall scheme and object of the IRPA ” (para. 21). The inadmissibility provisions in Part 1, Division 4 of the IRPA are “particularly relevant” (para. 21). • In at least one prior decision, X (Re), 2017 CanLII 146735 (I.R.B. (Imm. Div.)), in which a foreign national allegedly assaulted his former girlfriends in Canada but was not convicted of any offence in Canada, the ID interpreted the terms “security” and “security grounds” in s. 34(1)(e) as meaning “the security of Canada” or “national security”. But this interpretation is “not consistent with the presumption of consistent expression” (IAD reasons, at para.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-46", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 83", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "23). The terms “security” and “security grounds” in s. 34 must have different meanings from the terms “the security of Canada” or “national security” used elsewhere in the IRPA , including in the phrase “being a danger to the security of Canada” in s. 34(1)(d), which would otherwise be redundant. • The dictionary definition of “security”, which includes a “secure condition or feeling”, provides useful guidance (para. 25). This is a “broad definition” that “does not necessarily incorporate a national security element” (para. 25). • Obiter comments in prior cases tend to support the Minister of Public Safety and Emergency Preparedness’ position on the interpretation of s. 34(1)(e) (para. 27 (emphasis added), citing El Werfalli v. Canada (Public Safety and Emergency Preparedness), 2013 FC 612, [2014] 4 F.C.R. 673, at para. 75, which stated that “[t]he provision of reasonable grounds to believe an organization may engage in terrorism in the future serves to maintain national security and public safety being the object of the subsection 34(1)”; para. 28 (emphasis added), citing Fuentes v. Canada (Minister of Citizenship and Immigration), 2003 FCT 379, [2003] 4 F.C. 249, at para. 62, which interpreted a predecessor provision, s. 19 of the Immigration Act, R.S.C. 1985, c. I-2, as directed at the “key concepts” of “subversion, terrorism, crimes against humanity, war crimes and ordinary crimes”). • Section 36(1) (a) of the IRPA provides for inadmissibility based on the commission of a criminal offence in Canada, and requires a conviction. Section 34(1)(e) creates a different ground of inadmissibility based on conduct, “described in terms of the danger posed to the lives and safety of persons in Canada” (para. 33).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-47", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 83–84", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Such conduct is “a small subset of what would be considered serious criminality in section 36 of the IRPA ”, and “is distinct from criminal law” (para. 33). Sections 34 and 36 “overlap but are distinct” (para. 38). Section 36 addresses criminal offences, while s. 34 addresses danger posed to the lives and safety of persons in Canada. • Because inadmissibility is not a criminal sanction, it does not offend Canadian values to find a person inadmissible for acts that were “arguably criminal, but which did not lead to a criminal conviction” (para. 35). The conduct described in s. 34(1)(e) “is narrowly defined and anchored in terms of the danger posed to Canadians, not to criminal law” (para. 36). (2) Failures of Justification in the IAD’s Reasons\n\nPlainly, the IAD’s reasons applied several recognized techniques of statutory interpretation. The IAD adverted to the modern approach to statutory interpretation; attempted to read s. 34(1)(e) in the context of the rest of s. 34 and the broader context of the grounds of inadmissibility in Division 4 of the IRPA ; relied on a dictionary definition of “security”; considered the presumption of consistent expression to give the terms “security” and “security grounds” in s. 34(1)(e) a distinct meaning from the terms “the security of Canada” and “national security” used elsewhere in the IRPA ; and considered the only prior decision, a ruling of the ID, that had interpreted s. 34(1)(e) and was consistent with Mr. Mason’s position, as well as obiter statements from two Federal Court decisions that it viewed as supporting the Minister of Public Safety and Emergency Preparedness’ position. On balance, the IAD concluded that the Minister’s interpretive arguments outweighed Mr. Mason’s.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-48", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 85–87", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "As I will elaborate, although the IAD considered several of Mr. Mason’s arguments, it failed to address significant legal constraints that he had raised in his written submissions to the IAD: (1) two points of statutory context, and (2) the broad consequences of its decision. The IAD’s decision also failed to address (3) constraints imposed by international law that s. 3(3) (f) of the IRPA requires to be considered in interpreting and applying the legislation. These omissions establish that the IAD’s decision was unreasonable. (a) Failure to Address Two Significant Points of Statutory Context\n\nThe IAD failed to address two significant points of statutory context that Mr. Mason raised before the IAD in support of his argument that s. 34(1)(e) requires a nexus with national security or the security of Canada. Together, these omissions involve a failure of responsive justification.\n\nFirst, Mr. Mason submitted before the IAD that s. 34(1)(e) requires a nexus with national security or the security of Canada partly because the ministerial relief from inadmissibility under s. 34 (security grounds) is narrower than that available under s. 36 (serious criminality and criminality). He claimed that this narrower relief suggests that s. 34 is a “grave” form of inadmissibility concerned with “national security” (A.R., vol. II, at p. 30).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-49", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 88–89", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Mason submitted as follows. If a foreign national is inadmissible on security grounds under s. 34, the relief available is narrow: the Minister of Public Safety and Emergency Preparedness may declare that the matters referred to in s. 34 “do not constitute inadmissibility in respect of the foreign national if they satisfy the Minister that it is not contrary to the national interest” (IRPA , s. 42.1(1) ). But a foreign national inadmissible under s. 36 for being convicted of a criminal offence in Canada may seek broader relief: they may be granted ministerial relief from inadmissibility on humanitarian and compassionate grounds (s. 25(1)), and may not be found inadmissible if a record suspension for the conviction is in effect under the Criminal Records Act , R.S.C. 1985, c. C-47 (IRPA , s. 36(3) (b)).\n\nHere, for example, because Mr. Mason was not convicted of a criminal offence and his alleged conduct would make him inadmissible under the IAD’s interpretation of s. 34(1)(e), he could seek relief from inadmissibility only if he satisfied the Minister of Public Safety and Emergency Preparedness that it is in the “national interest”. But had Mr. Mason been convicted of a criminal offence for the same conduct, he could have applied for ministerial relief from inadmissibility on humanitarian and compassionate grounds, and he would not have been inadmissible at all had he been convicted of a criminal offence and later pardoned under the Criminal Records Act .", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-50", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 90–92", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Mason argued that because the relief available to persons inadmissible on security grounds under s. 34 is narrower than the relief available to persons inadmissible for criminality under s. 36, s. 34 was among the “grave forms of inadmissibility” and should “be interpreted in the context of national security” (A.R., vol. II, at p. 30).\n\nThe IAD’s reasons, read with sensitivity and in light of the record, did not address this important contextual argument. While perhaps not in itself determinative, this argument supported Mr. Mason’s position and imposed a significant legal constraint on the interpretation of s. 34(1)(e).\n\nSecond, Mr. Mason submitted before the IAD that s. 34(1)(e) requires a nexus with national security or the security of Canada partly because the Minister of Citizenship and Immigration must consider different criteria when conducting a “pre‑removal risk assessmen[t]” for a foreign national found inadmissible under s. 34 (security grounds) and under s. 36 (serious criminality and criminality) (A.R., vol. II, at pp. 30‑31). He submitted that in an assessment involving s. 36 the Minister must consider whether the person poses a danger to the public in Canada. In contrast, in an assessment involving s. 34 the Minister must consider whether the person poses a danger to the security of Canada. He claimed that this distinction supported his position that the security grounds under s. 34 require a nexus to national security or the security of Canada.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-51", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 93–95", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "A pre-removal risk assessment is a process under the IRPA by which a person subject to a removal order may apply to the Minister of Citizenship and Immigration for protection, resulting in refugee protection or a stay of the removal order (ss. 112 and 114(1)). In any application for a pre-removal risk assessment, the Minister must consider the danger that the person would be subjected to torture, the risk to their life, and the risk they would be subjected to cruel and unusual treatment or punishment (s. 97). For persons found inadmissible under s. 36(1) for serious criminality, the Minister must also consider “whether they are a danger to the public in Canada” (s. 113(d)(i)). But for persons found inadmissible on security grounds under s. 34, the Minister must, in addition to the s. 97 factors, consider “whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada” (s. 113(d)(ii)).\n\nMr. Mason argued before the IAD that these diverging considerations for pre-removal risk assessments suggest that Parliament contemplated that conduct captured by s. 36 poses a danger to the public in Canada, while conduct captured by s. 34 poses a danger to the security of Canada (A.R., vol. II, at pp. 30‑31). He claimed that this supported his position that the security grounds under s. 34 require a nexus to national security or the security of Canada.\n\nAgain, the IAD’s reasons did not address this important contextual argument, which, while not in itself determinative, supported Mr. Mason’s position and imposed a significant legal constraint on the interpretation of s. 34(1)(e).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-52", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 96–97", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Federal Court accepted that the IAD failed to address these two important contextual arguments that Mr. Mason had raised (para. 53). The Federal Court of Appeal disagreed, stating that the IAD had considered these two arguments “implicitly” (para. 59). In its view, “[t]o the extent that the [IAD] failed to mention some elements in its analysis of text, context and purpose, this was not a fundamental gap” (para. 59). The Court of Appeal said that “although one can quibble that certain elements of text, context and purpose were not mentioned in the reasons”, the court was “confident from the quality of the [IAD]’s overall reasoning that it considered them to be outweighed by other elements” (para. 59).\n\nI respectfully disagree with the Court of Appeal. I see no basis to conclude that the IAD considered these two important points of statutory context, even implicitly. Mr. Mason expressly raised both points as core planks supporting his position. The IAD’s failure to address them, while addressing other points, casts into doubt whether it was alert and sensitive to these issues (Vavilov, at paras. 127‑28). Reasons are the primary mechanism for the IAD to demonstrate that it actually listened to Mr. Mason (para. 127). In my view, the IAD’s reasons did not address — far less meaningfully grapple with — two key arguments that Mr. Mason had raised. The IAD’s reasons therefore failed to meet Vavilov’s standard of responsive justification (para. 127). (b) Failure to Address Potentially Broad Consequences", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-53", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 98–99", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IAD also failed to address Mr. Mason’s submission that interpreting s. 34(1)(e) without a nexus to national security or the security of Canada would result in two broad consequences, which he claimed ran afoul of the principle of statutory interpretation that a legislature does not intend to produce absurd consequences (Rizzo, at para. 27; Vavilov, at para. 120). The IAD’s failure to address these two broad consequences involves another failure of responsive justification.\n\nFirst, Mr. Mason submitted that interpreting s. 34(1)(e) without a nexus to national security or the security of Canada would mean that “any act of violence against another individual would presumably result in one of the most grave forms of inadmissibility” (A.R., vol. II, at p. 31). The acts of violence caught by s. 34(1)(e) would, he submitted, extend from “domestic altercations” to “bar fights and schoolyard fights” (p. 31). I note that unlike a criminal conviction triggering inadmissibility under s. 36, which must be proven beyond a reasonable doubt, the facts triggering inadmissibility under s. 34 are subject to the much lower standard of “facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur” (IRPA , s. 33 ). Thus, s. 34(1)(e) would extend to any “acts of violence” — past, present, or future — that “would or might” “endanger the lives or safety” of “persons in Canada”. Mr. Mason submitted that it would be absurd for such acts to be captured by s. 34(1)(e).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-54", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 100", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Unlike the Federal Court of Appeal, I do not read the IAD’s reasons as having addressed this argument. The Federal Court of Appeal interpreted the IAD’s reasons as interpreting “safety” as “something approaching the level of a threat to life, not just minor harm” (para. 57). The court based this conclusion on the IAD’s observation that s. 34(1)(e) is “narrowly defined and anchored in terms of the danger posed to Canadians, not to criminal law”. But the IAD made this statement in explaining that immigration consequences under the IRPA are distinct from criminal sanctions and are subject to different evidentiary thresholds; it did not say that s. 34(1)(e) applied only to a small class of especially serious violent conduct approaching a threat to life. As the IAD explained: . . . immigration consequences under the IRPA are not criminal sanctions. Criminal law and the IRPA have different objects. The IRPA operates under a different scheme including, for example, a lower evidentiary threshold. A person can be found inadmissible for conduct even if they have not been convicted criminally for that conduct. The conduct described in paragraph 34(1)(e) is narrowly defined and anchored in terms of the danger posed to Canadians, not to criminal law. [para. 36]", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-55", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 101–102", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "With respect, the Court of Appeal effectively buttressed the IAD’s reasons to provide a justification that the IAD did not itself provide, contrary to Vavilov’s direction that “it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome” (para. 96). This Court warned that “[t]o allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion” (para. 96).\n\nAs for the second broad consequence, Mr. Mason submitted to the IAD that if s. 34(1)(e) is interpreted without a nexus to national security or the security of Canada, it would do an “end-run around the limitations under s. 36(3)(e) with respect to youth offences” (A.R., vol. II, at pp. 31‑32). Section 36(3) (e) of the IRPA provides that young persons who are permanent residents or foreign nationals found guilty under the Young Offenders Act , R.S.C. 1985, c. Y-1 , or who received a youth sentence under the Youth Criminal Justice Act , S.C. 2002, c. 1 , cannot be found inadmissible under s. 36(1) (serious criminality) or s. 36(2) (criminality). In effect, under s. 36(3)(e), Parliament exempted young persons from inadmissibility for most criminal offences. But on the IAD’s interpretation of s. 34(1)(e), young persons can be found inadmissible for any acts of violence that would or might engage the lives or safety of persons in Canada, even without a nexus to national security or the security of Canada, and even without a criminal conviction.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-56", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 103–105", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Neither the IAD nor the Federal Court of Appeal addressed this incompatibility of the IAD’s interpretation of s. 34(1)(e) with the scheme for the inadmissibility of young persons under the IRPA . This omission was also not a minor aspect of s. 34(1)(e)’s interpretive context, and should have been addressed. (c) Failure to Address Constraints Imposed by International Law\n\nFinally, the IAD failed to address the legal constraints imposed by international law on its interpretation of s. 34(1)(e). As I will explain, the IAD’s interpretation allows foreign nationals to be returned to countries where they may face persecution, contrary to Canada’s non-refoulement obligation in Article 33 of the Refugee Convention. By contrast, interpreting s. 34(1)(e) as requiring a nexus with national security or the security of Canada means that a removal order would not breach Article 33. Although this argument was not presented to the IAD, the IAD was required by its home statute to interpret and apply the IRPA in a manner that complies with Canada’s international human rights obligations, including Canada’s non-refoulement obligation under Article 33 of the Refugee Convention.\n\nVavilov highlighted that international law may be an “important constraint on an administrative decision maker”, including through the presumption of statutory interpretation that “legislation is presumed to operate in conformity with Canada’s international obligations” (para. 114). Canada has ratified both the 1951 Refugee Convention and the 1967 Refugee Protocol (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 17). These international human rights instruments to which Canada is a party trigger the interpretive presumption of conformity with international law.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-57", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 106", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The presumption of conformity with international law assumes added force when interpreting the IRPA , because Parliament has made its “presumed intent to conform to Canada’s international obligations explicit” through two provisions of the IRPA (B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at para. 49). First, s. 3(2)(b) of the IRPA expressly identifies one of the IRPA ’s objectives as being “to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement”. Indeed, this Court has described the IRPA as the “main legislative vehicle for implementing Canada’s international refugee obligations” (Németh, at para. 21). Second, s. 3(3) (f) of the IRPA instructs courts and administrative decision makers to construe and apply the IRPA in a manner that “complies with international human rights instruments to which Canada is signatory” (B010, at para. 49). This Court has stated that “[t]here can be no doubt that the Refugee Convention is such an instrument, building as it does on the right of persons to seek and to enjoy asylum from persecution in other countries as set out in art. 14 of the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948)” (para. 49). As a result, the Refugee Convention is “determinative of how the IRPA must be interpreted and applied, in the absence of a contrary legislative intention” (de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, at para. 87; B010, at para. 49).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-58", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 107", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The centrepiece of the Refugee Convention is contained in the provisions relating to “expulsion and return” (Németh, at para. 18). Article 33, which has been expressly incorporated into the IRPA (s. 115 ), bars the expulsion or return of a refugee, by any means, to a country where they are at risk of persecution, unless they are found to pose a danger to the security of the host country or are convicted of a serious crime. Article 33 of the Refugee Convention provides: Article 33 Prohibition of Expulsion or Return (“Refoulement”) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-59", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 108", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 33(1) enshrines the principle of non-refoulement, which has been described as “the cornerstone of the international refugee protection regime”, and which, generally, “prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations” (Németh, at paras. 18‑19). Article 33(2), which operates as a limited exception to the principle of non-refoulement in Article 33(1), allows a person to be removed in exceptional circumstances: when there are reasonable grounds for regarding the person as a danger to the security of the country in which they are, or when the person is convicted of a serious crime and is a danger to the community of that country (see Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at para. 25). Article 42 of the Refugee Convention further stipulates that ratifying states may not make reservations to the non-refoulement protections of Article 33 (Németh, at para. 18). The principle of non-refoulement is generally recognized as a norm of customary international law (see Prosecutor v. Germain Katanga, ICC-01/04-01/07, Decision on the application for the interim release of detained Witnesses, 1 October 2013 (Trial Chamber II), at para. 30; Zaoui v. Attorney-General (No. 2), [2005] 1 N.Z.L.R. 690 (C.A.), at paras. 34-35; S. E. Lauterpacht and D. Bethlehem, “The scope and content of the principle of non-refoulement: Opinion”, in E. Feller, V. Türk and F. Nicholson, eds., Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003), 87, at paras. 193-253; H. Lambert, “Customary Refugee Law”, in C. Costello, M. Foster and J. McAdam, eds., The Oxford Handbook of International Refugee Law (2021), 240, at pp.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-60", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 108–109", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "242-49; and United Nations High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2007), at paras. 14-16).\n\nThe IAD’s interpretation allows a foreign national found inadmissible under s. 34(1)(e) to be subject to refoulement contrary to Article 33(1) of the Refugee Convention. On the IAD’s interpretation, a foreign national can be deported to persecution once they are found inadmissible under s. 34(1)(e), without a finding that the person poses a danger to the security of Canada or even if they have not been convicted of a serious offence. Such a person would be entitled to the benefit of Article 33(1) of the Refugee Convention, as the exceptions under Article 33(2) would not apply: on the IAD’s approach to inadmissibility under s. 34(1)(e), there need not be “reasonable grounds” to regard the foreign national as a “danger to the security” of Canada, or for them to have been “convicted by a final judgment of a particularly serious crime”.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-61", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 110", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "A person facing such a removal order would not be protected from refoulement under Article 33(1) through the IRPA ’s pre-removal risk assessment process. Although such a person may apply to the Minister of Citizenship and Immigration for a pre-removal risk assessment (IRPA , s. 112 ), the grounds that the Minister must consider in assessing the risk to the person if the removal order is not stayed do not include those under Article 33(1) of the Refugee Convention. The Minister does not consider whether the person is a “Convention refugee”, that is, whether the person has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion (s. 96). Instead, the Minister need consider only (1) whether the application for a stay of the removal order should be refused because of the nature and severity of acts committed by the person or because of the danger that the person constitutes to the security of Canada, and (2) whether the person’s removal would subject them to a danger of torture, to a risk to their life, or to a risk of cruel and unusual treatment or punishment (ss. 97(1) and 113(d)(ii)). Thus, as fairly conceded by the respondent Minister, the Minister does not consider the forms of persecution described in Article 33(1) (R.F., at para. 106). And while there are several “safety valves” under the IRPA that provide discretionary exemptions from the application of the general ineligibility rules under the IRPA (see Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, at paras. 43-48), none of these discretionary exemptions detract from the concern that the IAD’s interpretation of s.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-62", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 110–111", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "34(1)(e) would, as a general rule, allow for a removal order without protection from refoulement, contrary to Article 33(1) of the Refugee Convention.\n\nAs a result, interpreting s. 34(1) (e) of the IRPA as not requiring a nexus with national security or the security of Canada — as did the IAD — could subject persons to refoulement contrary to Article 33(1) of the Refugee Convention. By contrast, interpreting s. 34(1)(e) as requiring a nexus with national security or the security of Canada would trigger the exception in Article 33(2) to the ability to claim the protection of Article 33(1) of the Refugee Convention, and thus a removal order in such circumstances would not breach Canada’s obligation of non-refoulement.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-63", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 112", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent Minister contends that s. 115(1) and (2) of the IRPA operate as a safeguard against refoulement and “fulfil[l] Canada’s international obligations by ensuring that it is only in exceptional cases that a Convention refugee or a protected person will lose the benefit of non-refoulement and be removed from Canada” (R.F., at para. 125). Section 115(1) prohibits removal of certain persons to persecution, and s. 115(2) provides for limited exceptions to that prohibition: Protection 115 (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. Exceptions (2) Subsection (1) does not apply in the case of a person (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada. According to the Minister, if a person inadmissible under s. 34(1)(e) is subject to an enforceable removal order, s. 115(1) and (2) will prevent their refoulement except in limited circumstances, and so s. 34(1)(e) need not be interpreted as requiring a link to national security or the security of Canada.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-64", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 113", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "I disagree with the Minister’s submission for two reasons. First, while the Minister is correct that the s. 115(2) exceptions apply in limited circumstances, they nonetheless allow refoulement of persons inadmissible under s. 34(1)(e) in circumstances outside the scope of the Article 33(2) exceptions. As discussed above, Article 33(2) provides for exceptions to the non-refoulement principle for persons reasonably regarded as a danger to the security of the host country, or who are convicted of a particularly serious crime and are a danger to the community. But s. 115(2) countenances refoulement outside those circumstances: it only requires that the Minister of Citizenship and Immigration be of the opinion that the person should not be allowed to remain in Canada on the basis of (1) the nature and severity of acts committed, or (2) danger to the security of Canada. It thus permits the Minister to allow refoulement based on “the nature and severity” of acts not linked to “the security of the country”.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-65", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 114–116", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, s. 115(1) affords protection to a narrower set of persons than are protected from refoulement under the Refugee Convention. Section 115(1) only affords protection to a person recognized as having refugee status: “[a] protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned”. By contrast, Article 33 affords protection to “a refugee”, and thus does not require a prior recognition of refugee status (Refugee Convention, Article 1; Refugee Protocol, Article 1; G. v. G., [2021] UKSC 9, [2022] A.C. 544, at para. 81 (“The obligation not to refoule an individual arises by virtue of the fact that their circumstances meet the definition of ‘refugee’, not by reason of the recognition by a contracting state that the definition is met.”)). As a result, if s. 34(1)(e) applies to conduct not linked to national security or the security of Canada, s. 115(1) allows the Minister of Citizenship and Immigration to subject refugee claimants to refoulement contrary to Article 33(1) of the Refugee Convention.\n\nThat neither Mr. Mason nor Mr. Dleiow is a refugee claimant does not detract from this conclusion. The Refugee Convention imposes an important legal constraint on the interpretation of s. 34(1)(e) generally, irrespective of whether the specific foreign national subject to deportation is a refugee claimant.\n\nThe Federal Court of Appeal declined to consider this argument because it had not been made to the IAD, and because it said that “certain background documents and other instruments needed to understand any international obligations are not in evidence before us” (paras. 73‑74). The court did not say what documents and instruments might be missing.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-66", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 117–119", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "In any event, the role of the Refugee Convention in constraining the interpretation of the IRPA is a question of law, one that Parliament by s. 3(3)(f) has expressly directed a court or administrative decision maker to consider. The IAD’s failure to consider this issue did not involve the omission of a “minor aspect of the interpretive context” (Vavilov, at para. 122). Rather, it involved the omission of the principle of non-refoulement — “the cornerstone of the international refugee protection regime”, and a critical legal constraint on interpretation of the IRPA , one that Parliament has decreed must be considered in construing and applying the IRPA . This crucial omission made the IAD’s decision unreasonable. D. Conclusion and Remedy\n\nThe IAD’s reasons in Mr. Mason’s case failed to address critical points of statutory context and the broad consequences of its interpretation of s. 34(1) (e) of the IRPA , all of which Mr. Mason had highlighted in his written submissions to the IAD. These omissions were significant, not minor; they involved a failure of “responsive justification” by the IAD. The IAD also failed to interpret and apply s. 34(1)(e) in compliance with Canada’s obligation of non-refoulement under the Refugee Convention, a matter that Parliament has decreed it must consider. Cumulatively, these omissions rendered the IAD’s decision unreasonable.\n\nThe ID’s decision in Mr. Dleoiw’s case, which simply followed the IAD’s interpretation of s. 34(1) (e) of the IRPA in Mr. Mason’s case, was unreasonable for the same reasons.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-67", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 120", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Vavilov cautioned that although a court conducting a reasonableness review is not tasked with determining the “correct” interpretation of a disputed statutory provision, it may become clear in the course of conducting a judicial review that the relevant constraints bearing on the decision “so overwhelmingly” favour one interpretation that there is room for only one reasonable interpretation of the provision at issue (para. 124, citing approvingly Nova Tube, at para. 61 (CanLII), per Laskin J.A.). This Court noted that, based on the applicable constraints, a particular outcome may be “inevitable” (Vavilov, at para. 142). In such a case, while “a court should generally pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker”, it would serve no useful purpose to remit the matter to the original decision maker (para. 124). The Court reached this conclusion not as the starting point of its reasonableness review, but rather as a result of a proper reasonableness review when considering the appropriate remedy.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-68", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 121–122", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "That is also the case here. The relevant legal constraints cumulatively point overwhelmingly to only one reasonable interpretation of s. 34(1)(e) — the provision requires a nexus to national security or the security of Canada. This interpretation is supported by the placement of s. 34(1)(e) amid other “security grounds” in s. 34, all of which have a link to national security or the security of Canada. And although the IAD noted that some interpretive constraints point in the other direction, the two critical points of statutory context that the IAD failed to consider, and especially, the legal constraints imposed by international law, overwhelmingly support the opposite conclusion: s. 34(1)(e) can be invoked to render a person inadmissible only when their “acts of violence that would or might endanger the lives or safety of persons in Canada” have a nexus with national security or the security of Canada.\n\nAs a result, the decision of the IAD in Mr. Mason’s case and of the ID in Mr. Dleiow’s case were unreasonable and should be quashed. Because the Minister has not alleged that Mr. Mason or Mr. Dleiow engaged in acts of violence with a link to national security or the security of Canada, s. 34(1)(e) of the IRPA does not provide a legal basis for the inadmissibility of either person. And because the Minister has not alleged any other basis for their inadmissibility, there is no need to remit either decision to the ID or IAD for redetermination. VI. Disposition", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-69", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 123–125", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "I would allow the appeals, set aside the judgments of the Federal Court of Appeal and allow the applications for judicial review. In Mr. Mason’s appeal, I would quash the IAD decision thus restoring the ID decision. In Mr. Dleiow’s appeal, I would quash the ID decision and deportation order. Since neither appellant requested costs, I would make no order as to costs. The following are the reasons delivered by Côté J. — I. Introduction\n\nI agree with my colleague’s disposition of these appeals. Inadmissibility under s. 34(1) (e) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), requires a nexus between the relevant act of violence and with national security or the security of Canada (see paras. 11 and 121). However, I would review the Immigration Appeal Division’s (“IAD”) interpretation of s. 34(1)(e) on a standard of correctness, as submitted by the appellant Mr. Earl Mason and the interveners the Canadian Association of Refugee Lawyers and the Canadian Council for Refugees.\n\nIn Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, this Court held that reviewing courts should derogate from the presumption of reasonableness review where required by (1) a clear indication of legislative intent or (2) the rule of law (para. 10). In my view, the rule of law requires — and Parliament intended for appellate courts to provide — definitive, correct answers to legal questions certified under s. 74 (d) of the IRPA . By definition, these are questions that transcend the interests of the parties and raise issues of broad significance within Canada’s immigration and refugee protection scheme (see Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674, at para. 46).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-70", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 126–127", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, this Court noted that the certified question regime would be “incoherent” if the standard of review were anything other than correctness (para. 43). This is exemplified by the companion appeals before us. The IAD’s interpretation of s. 34(1)(e) in Mr. Mason’s case, subsequently applied to Mr. Dleiow, would significantly expand the grounds on which foreign nationals or permanent residents may be deported from Canada. It would allow foreign nationals to be returned to countries where they may face persecution, in a manner contrary to Canada’s obligations under the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (see Jamal J.’s reasons, at paras. 104‑17). Parliament did not intend for appellate courts, as the Federal Court of Appeal did in this case, to defer to such interpretations where they may be “reasonable”, but are nonetheless wrong in law (see Pushpanathan, at para. 43).\n\nTo be consistent with the principles and framework set out in Vavilov, I would recognize a new category of correctness review: when appellate courts decide a “serious question of general importance” certified under s. 74 (d) of the IRPA . II. Analysis A. The Standard of Review for Certified Questions Under the IRPA Is Undecided Post‑Vavilov (1) Pre‑Vavilov Jurisprudence", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-71", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 128", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Prior to Vavilov, this Court was inconsistent in its approach to certified questions. In Pushpanathan, the majority of this Court held that the certified question regime under s. 83(1) of the former Immigration Act, R.S.C. 1985, c. I‑2 — the predecessor to s. 74 (d) of the IRPA — would be “incoherent if the standard of review were anything other than correctness” (para. 43). Writing for the majority, Bastarache J. noted that the only way in which the certification procedure could be given its explicitly articulated scope was if courts were permitted to substitute their own answers for those of the Immigration and Refugee Board in respect of questions of general importance.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-72", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 129", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Under the pre‑Vavilov contextual approach, this Court departed from the approach taken in Pushpanathan in some subsequent cases, though not in most. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the majority of this Court applied the intermediate standard of review of reasonableness simpliciter, distinguishing Pushpanathan based on the “highly discretionary and fact‑based nature” of the Minister’s decision to refuse to exempt the appellant in that case from deportation on humanitarian and compassionate grounds (Baker, at paras. 61‑62). Importantly, however, the Court answered the certified question before it definitively: Simpson J. certified the following as a “serious question of general importance” under s. 83(1) of the Immigration Act: “Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?” . . . The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision‑maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. [Emphasis added; emphasis in original deleted; paras. 9 and 75.]", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-73", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 130–131", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court also applied a standard of review of reasonableness in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, on the basis that the Minister’s decision under the former s. 34(2) of the IRPA was discretionary (para. 50). In Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, the majority of this Court held that the fact that the reviewing judge “considered the question to be of general importance” was “relevant, but not determinative” of the standard of review (para. 44). “Despite the presence of a certified question, the appropriate standard of review” in that case was reasonableness (ibid., citing Baker, at para. 62).\n\nHowever, as the Canadian Association of Refugee Lawyers notes in its factum, Agraira and Kanthasamy are outliers. The Court applied a standard of correctness in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 26, and Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, at para. 71. In other cases, the Court gave definitive answers to certified questions of interpretation either without addressing the standard of review (see Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, at paras. 6‑9; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at paras. 6 and 60) or after finding that it was unnecessary to resolve the issue (B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at paras. 26 and 76; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paras. 23, 53 and 56).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-74", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 132–133", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Relying on pre‑Vavilov authorities, my colleague says that this Court has “concluded in the immigration context” that the standard of review for certified questions is reasonableness (para. 51, citing Kanthasamy and Baker). With respect, I disagree.\n\nFirst, this Court did not endorse or even cite Kanthasamy in Vavilov. It relied on Baker in Vavilov, but for reasons unrelated to the determination of the standard of review.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-75", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 134", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, prior to Vavilov, this Court consistently provided definitive answers to certified questions of statutory interpretation (see, e.g., Pushpanathan, at paras. 75‑76; Baker, at para. 75; Chieu, at para. 90; Ezokola, at paras. 6‑9; Febles, at para. 60; Hilewitz, at para. 71; B010, at para. 76; Tran, at para. 56; see also Vavilov v. Canada (Citizenship and Immigration), 2017 FCA 132, [2018] 3 F.C.R. 75, at para. 37; Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, [2015] 1 F.C.R. 335, at para. 33). In Kanthasamy, the majority of this Court arguably did the same. Indeed, prior to considering the standard of review, Abella J., who wrote the majority reasons, engaged in a lengthy interpretive exercise with respect to s. 25(1) of the IRPA (see paras. 10‑41). In dissent, Moldaver J. (Wagner J. (as he then was) concurring) lamented that the majority had adopted a “do as we say, not what we do” approach to reasonableness review: In particular, I am concerned that my colleague has not given the Officer’s reasons the deference which, time and again, this Court has said they deserve. In her reasons, she parses the Officer’s decision for legal errors, resolves ambiguities against the Officer, and reweighs the evidence. Lest we be accused of adopting a “do as we say, not what we do” approach to reasonableness review, this approach fails to heed the admonition in Newfoundland and Labrador Nurses — that reviewing courts must be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fatal (para. 17).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-76", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 134–136", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "As is the case with every other court, this Court has no licence to find an officer’s decision unreasonable simply because it considers the result unpalatable and would itself have come to a different result. [Emphasis added; para. 112.]\n\nFollowing Kanthasamy, a unanimous Court held in Tran that an administrative interpretation of the “serious criminality” provisions set out in s. 36(1) (a) of the IRPA could not stand under either standard of review (para. 23). The Court did not endorse or cite Kanthasamy and, again, provided definitive answers to the two questions of general importance certified by the Federal Court: 1. Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code a “term of imprisonment” under s. 36(1) (a) of the IRPA ? ― No. 2. Does the phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1) (a) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined? ― It refers to the maximum term of imprisonment available at the time of the commission of the offence. [para. 56]\n\nIn sum, the weight of authority confirms that prior to Vavilov, this Court repeatedly answered certified questions definitively and without deference to administrative decision makers. I therefore disagree that, “[a]s a matter of precedent”, reasonableness review applies (Jamal J.’s reasons, at para. 51).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-77", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 137–139", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "In any event, Vavilov overtook prior jurisprudence (para. 143; see Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at para. 25). The jurisprudence discussed above must be analyzed in light of the principles and framework set out in Vavilov. (2) Vavilov\n\nIn Vavilov, this Court recognized five categories of correctness review, based on either legislative intent (legislated standards of review and statutory appeal mechanisms) or the rule of law (constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding jurisdictional boundaries between administrative bodies) (paras. 17 and 69). However, it was expressly stated in Vavilov that the categories of correctness review are not closed (para. 70). And indeed, in Society of Composers, this Court recognized a new category: “. . . when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute. Applying correctness to these issues accords with legislative intent and promotes the rule of law” (para. 28).\n\nThe issue in Vavilov reached the Federal Court of Appeal by way of a certified question under s. 22.2 (d) of the Citizenship Act , R.S.C. 1985, c. C‑29 . The Federal Court of Appeal provided a definitive answer to that question: The proper stated question and my proposed answer to it are as follows: Question: Are the words “other representative or employee [in Canada] of a foreign government” found in paragraph 3(2) (a) of the Citizenship Act limited to foreign nationals [falling within these words] who [also] benefit from diplomatic privileges and immunities? Answer: Yes. [para. 90]", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-78", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 140–142", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court upheld the Federal Court of Appeal’s decision quashing the Registrar of Citizenship’s decision to cancel Mr. Vavilov’s citizenship certificate (para. 194). The majority of the Court concluded that Mr. Vavilov’s status was governed by s. 3(1) (a) of the Citizenship Act and that he was a Canadian citizen (para. 196).\n\nWhile I acknowledge that our Court applied a standard of review of reasonableness to the Registrar’s decision, I would not read Vavilov as decisive of the standard of review for certified questions under the IRPA moving forward. Let me explain.\n\nFirst, this Court did not discuss the issue of certified questions in Vavilov. As noted in Society of Composers, when this Court “wanted to reject the possibility of a certain correctness category, it did so expressly” (para. 42, citing Vavilov, at paras. 71‑72). In my view, the standard of review for certified questions — certainly in the unique context of the IRPA , as explained below — remains an open question post‑Vavilov.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-79", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 143–144", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "I would note that the Federal Court of Appeal does not view Vavilov as dispositive on this point. To the contrary, in Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, 468 D.L.R. (4th) 358, the court noted that correctness review of certified questions would “seem to gain greater credence now that the Supreme Court has held that statutory standards can have a bearing on the standard of review” (para. 41 (emphasis added)). Writing for the court, Mactavish J.A. observed that in Vavilov itself, the Federal Court of Appeal gave a “precise answer, akin to a correctness review answer”, to the certified question before it, an approach that this Court effectively ratified in dismissing the appeal (para. 43). The Federal Court of Appeal in Galindo Camayo appears to have applied a standard of reasonableness based on Kanthasamy, not Vavilov (see para. 42).\n\nSecond, the certified question in Vavilov arose under different legislation, the Citizenship Act . In the separate and unique context of the IRPA , multiple different ministers, government departments, and agencies, as well as Canada’s largest administrative tribunal (the Immigration and Refugee Board) are charged with independently administering the statutory scheme. In many cases, these separate decision makers are required to interpret the same statutory provisions. While it is beyond the scope of these appeals to exhaustively canvass the scheme of the Citizenship Act , the statutory certification process has been widely used under the IRPA to settle divergent interpretations or disagreements on legal issues of general importance (see Huruglica v. Canada (Citizenship and Immigration), 2016 FCA 93, [2016] 4 F.C.R. 157, at para. 28).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-80", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 145–146", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, to say that Vavilov is determinative and that the standard of review for certified questions is reasonableness would contradict the Vavilov framework itself. As I explain below, reasonableness review of certified questions under the IRPA is inconsistent with both Parliament’s intent and the rule of law. B. Certified Questions Under the IRPA Should Be Recognized as a New Category of Correctness Review (1) Legislative Intent\n\nIn s. 74(d) of the IRPA , Parliament has provided for an “exceptional” appeal (see Pushpanathan, at para. 43) to the Federal Court of Appeal for legal questions certified as “serious question[s] of general importance”. This indicates legislative intent for judicial involvement and a desire to subject these particular questions, as distinct from all others arising under the IRPA more broadly, to appellate standards of review (see Society of Composers, at para. 30; Vavilov, at para. 36). Parliament’s institutional design choice should be respected by the courts.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-81", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 147", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "I do not dispute that s. 74(d) provides for statutory appeals following judicial review decisions. If Parliament had provided for statutory appeals from administrative decisions directly, certified questions would fit within the existing Vavilov category. Nonetheless, as this Court noted in Society of Composers, the presumption of reasonableness review no longer applies where the legislature expressly involves the court in the administrative scheme: Reasonableness is the standard of review that, in most instances, gives best effect to legislative intent. When the legislature has granted exclusive jurisdiction to an administrative decision maker, courts presume that the legislature wanted that decision maker to operate without undue judicial interference: Vavilov, at para. 24. When the legislature expressly involves the court in the administrative scheme, this presumption no longer applies. That is why legislated standards of review and statutory appeal mechanisms give rise to a correctness standard of review. Such statutory features indicate legislative intent for judicial involvement and a desire to subject those decisions to appellate standards of review: Vavilov, at para. 36. [Emphasis added; paras. 29‑30.]", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-82", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 148", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "As my colleague acknowledges, the certified question regime under the IRPA is a “statutory mechanism” through which an appeal is provided for “in certain circumstances”, i.e. based on the nature and importance of the legal question at issue (para. 9). Through s. 74(d), Parliament does not “exclude the courts but rather makes them part of the enforcement machinery” in certain circumstances (Vavilov, at para. 36, citing Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, at p. 195). In my view, this strongly rebuts the presumption of reasonableness review for this particular type of legal question, in a manner analogous to the existing categories of correctness review.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-83", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 149–150", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Prior to Vavilov, the Federal Court of Appeal also adopted the practice of providing the “definitive answer to a certified question on a point of statutory interpretation” (see Kanthasamy, at para. 35). This is consistent with Parliament’s express intent for appellate courts to decide certified questions. In Pushpanathan, this Court discussed Parliament’s intent as follows: First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” . . . . The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice. Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board which are wrong in law, even clearly wrong in law, but not patently unreasonable? [Emphasis in original; para. 43.]\n\nThe Court then noted that, for the certified question regime to be given its explicitly legislated scope, appellate courts must be able to answer them correctly: The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal — and inferentially, the Federal Court, Trial Division — is permitted to substitute its own opinion for that of the Board in respect of questions of general importance. [Emphasis added; para. 43.]", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-84", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 151–152", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "I could not agree more. For serious questions of general importance arising under the IRPA , Parliament did not intend courts to be forced to defer to administrative decisions that may be “reasonable”, but are wrong in law. As with s. 83(1) of the former Immigration Act, the only way s. 74 (d) of the IRPA can be given its explicitly legislated scope is if appellate courts are permitted to substitute their own opinion in respect of serious questions of general importance.\n\nThe Federal Court of Appeal has struggled with this exact issue since Vavilov. In Galindo Camayo, Mactavish J.A. lamented the “misfit between answering [a] certified question properly and conducting reasonableness review” (para. 41): However, the fact that we have certified questions before us gives rise to an awkward situation. Certified questions generally raise questions of law, including, as in this case, questions of statutory interpretation. However, the questions, as phrased by the Federal Court, require a yes or no answer. This invites correctness review by this Court. That said, as described above, this Court is required to engage in reasonableness review on questions of statutory interpretation. This creates the possibility that, in some cases, this Court may find the [Refugee Protection Division’s] interpretation of a statutory provision to be reasonable, yet this Court may say something entirely different in providing its own view of the matter in answering the certified question — something that the Supreme Court expressly tells us not to do . . . . [Emphasis added; para. 40.]", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-85", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 153–154", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The court’s solution to this problem in Galindo Camayo was to reformulate the certified question to ask whether a particular statutory interpretation was reasonable: In this case, the second and third questions, as stated, call for a correctness response. I would therefore amend them to ask whether the particular statutory interpretation or approach suggested by the question is or is not reasonable. [Emphasis added; para. 44.]\n\nThis is also what the Federal Court did in Mr. Mason’s case, in an attempt to incorporate reasonableness as the applicable standard of review: The parties, however, each proposed their version of the question referring to the “correctness” of the IAD’s interpretation. I thus rephrase the question as follows, incorporating reasonableness as the applicable standard of review: Is it reasonable to interpret section 34(1) (e) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in a manner that does not require proof of conduct that has a nexus with “national security” or “the security of Canada?” (2019 FC 1251, [2020] 2 F.C.R. 3, at para. 70)", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-86", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 155–157", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, this clearly distorts Parliament’s intent in s. 74(d). I do not accept that Parliament intended courts to reformulate certified questions, rather than answering them correctly. Where appellate courts conclude that there is only one reasonable interpretation of a disputed statutory provision, I struggle to see any meaningful difference between that interpretation and the correct interpretation of the statutory provision in question. Where there may be multiple “reasonable” interpretations, appellate courts are faced with the prospect of upholding decisions that incorrectly determine questions of law — for example, the impact of Canada’s international law obligations on the interpretation of certain sections of the IRPA (see Jamal J.’s reasons, at para. 117).\n\nIn this case, the IAD’s failure to consider this issue at all may have been unreasonable (see Jamal J.’s reasons, at para. 117). But what if the IAD had considered the issue and reached a reasonable, though incorrect, conclusion? As Bastarache J. warned in Pushpanathan, appellate courts applying reasonableness review would be forced to defer to that decision. In this case, it would result in the deportation of Mr. Mason and Mr. Dleiow from Canada. In future cases, it could result in foreign nationals being returned to countries where they may face persecution, in a manner contrary to Canada’s non‑refoulement obligations (Jamal J.’s reasons, at paras. 104 and 109).\n\nIn my view, this is untenable, and contrary to Parliament’s express intent for serious questions of general importance certified under s. 74 (d) of the IRPA to be reviewed and determined by appellate courts. (2) The Rule of Law", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-87", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 158–160", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The presumption of reasonableness review must also give way to the importance of maintaining the rule of law, which requires that certified questions be answered consistently and definitively (see Society of Composers, at para. 33; Vavilov, at para. 53). I say this for two reasons. (a) The Risk of Arbitrariness Is Unacceptable in This Context\n\nFirst, the rule of law demands a “singular, determinate and final answer” (Vavilov, at para. 32) to a question certified as a serious question of general importance under the IRPA . In Lunyamila, the Federal Court of Appeal reiterated the criteria for certification under s. 74(d): The question must be a serious question that is dispositive of the appeal, transcends the interests of the parties and raises an issue of broad significance or general importance. [Emphasis added; para. 46.] (See also Canada (Immigration and Citizenship) v. Laing, 2021 FCA 194, at para. 11 (CanLII); Canada (Public Safety and Emergency Preparedness) v. XY, 2022 FCA 113, 89 Imm. L.R. (4th) 173, at para. 7).\n\nA question whose answer turns on the unique facts of the case will not be certified (Lunyamila, at para. 46, citing Mudrak v. Canada (Minister of Citizenship and Immigration), 2016 FCA 178, 43 Imm. L.R. (4th) 199). By definition, then, certified questions concern issues of broad significance or general importance within Canada’s immigration and refugee protection regime. In my view, these are exactly the types of questions for which the rule of law demands consistent and definitive answers — and for which the risk of arbitrariness is unacceptable.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-88", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 161", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Vavilov, our Court accepted that legal incoherence is antithetical to the rule of law (para. 72). While the Court rejected “persistent discord within an administrative body” as a standalone category of correctness review, this was based on the ability of a “more robust” form of reasonableness to guard against the risk of arbitrariness: We are not persuaded that the Court should recognize a distinct correctness category for legal questions on which there is persistent discord within an administrative body. In Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, this Court held that “a lack of unanimity [within a tribunal] is the price to pay for the decision-making freedom and independence given to the members of these tribunals”: p. 800; see also Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 28. That said, we agree that the hypothetical scenario suggested by the amici curiae — in which the law’s meaning depends on the identity of the individual decision maker, thereby leading to legal incoherence — is antithetical to the rule of law. In our view, however, the more robust form of reasonableness review set out below, which accounts for the value of consistency and the threat of arbitrariness, is capable, in tandem with internal administrative processes to promote consistency and with legislative oversight (see Domtar, at p. 801), of guarding against threats to the rule of law. [Emphasis added; para. 72.]", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-89", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 162–163", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "There are two issues with even a “robust” form of reasonableness review in the context of certified questions. First, the “internal administrative processes” referenced in Vavilov, in this context, depend on appellate courts resolving disagreements on legal issues of general importance. As the Federal Court of Appeal noted in Huruglica, this process has been welcomed by the IAD and the Refugee Protection Division (“RPD”): . . . for many years, the Federal Court resorted to the certification process under paragraph 74(d) to settle divergent interpretations or disagreements on legal issues of general importance. This Court’s providing the correct answer to certified questions appears to have been welcomed, particularly by the IAD and the RPD, who saw it as helpful in carrying out their functions. [Emphasis added; para. 28.]\n\nIn other words, the certified question process is the very way in which internal disputes are resolved within this administrative scheme, for a specific subset of legal questions. This category of questions may be defined with precision (see Society of Composers, at para. 39). As Paul Daly notes, “the unique features of [Canada’s] immigration regime could allow for correctness review where questions have been certified without having unfortunate consequences in other areas of law” (Certified Questions, References and Reasonableness: Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, April 8, 2022 (online)). In the immigration context, the certified question procedure is “tailor‑made to achieve correctness review on questions of law” (ibid.).", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-90", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 164", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, the risk of arbitrariness may be acceptable in the context of decisions regarding the extent of an income replacement indemnity during a temporary plant closure (as in Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756) or alleged violations of a provincial collective agreement (as in Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221) to use the two examples referred to in Vavilov (para. 72). It is not acceptable when the identity of the individual decision maker is what determines who is permitted to remain in Canada, as in these companion appeals, or in the context of other serious questions of general importance under the IRPA .", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-91", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 165", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "A number of scholars and several interveners in these appeals emphasize the fundamental importance of certified questions, the potential consequences for affected individuals, and the corresponding need for courts to provide correct and definitive answers in this context (see, e.g., J. C. Y. Liew, “The Good, the Bad, and the Ugly: A Preliminary Assessment of Whether the Vavilov Framework Adequately Addresses Concerns of Marginalized Communities in the Immigration Law Context” (2020), 98 Can. Bar Rev. 398, at p. 425; G. Heckman and A. Khoday, “Once More unto the Breach: Confronting the Standard of Review (Again) and the Imperative of Correctness Review when Interpreting the Scope of Refugee Protection” (2019), 42 Dal. L.J. 49, at pp. 62‑68 and 82; I.F., Canadian Association of Refugee Lawyers, at paras. 20‑21; I.F., Canadian Council for Refugees, at paras. 14‑20; I.F., United Nations High Commissioner for Refugees, at paras. 21‑24). I agree with my colleague that the potential consequences of a decision are relevant to the substance of reasonableness review (see para. 69). But those consequences are also relevant to the determination of the standard of review, and to the imperative of providing legally correct answers in certain circumstances.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-92", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 166–168", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "As Professors Heckman and Khoday note, where different decision makers adopt different interpretations of the scope of refugee protection under the IRPA , one claimant may receive protection while another presenting an identical claim may be returned to their country of origin to face persecution. Given the “momentous impact” of these decisions, “the existence of divergent interpretations of these key provisions is arbitrary and antithetical to the rule of law, which demands that the inconsistencies be immediately resolved through correctness review” (p. 68).\n\nRelatedly, correctness review serves to ease the burden on lay applicants, many of whom will be facing life‑changing immigration consequences. The reasonableness of an administrative decision depends, in large part, on the evidence before the decision maker and the submissions made by the parties (Vavilov, at para. 94; see Jamal J.’s reasons, at para. 61). Not all immigration or refugee applicants will have the resources or knowledge to make sophisticated contextual and interpretive arguments. In the context of certified questions, even a robust form of reasonableness review may be insufficient to guard against the risk, and the consequences, of arbitrariness (see Vavilov, at para. 192).\n\nWhile not all certified questions concern issues of admissibility or deportation, I am satisfied that the rule of law nonetheless demands consistent and definitive answers to all questions that are properly certified. I am unable to tolerate the risk of arbitrariness in this context. (b) Consequences for the Justice System as a Whole or Other Institutions of Government", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-93", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 169–170", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, questions certified under s. 74(d) will, by definition, have implications beyond the immediate parties. In addition to their potential impacts on Canada’s international obligations, they may have impacts on criminal law or on other legislation.\n\nFor example, the Citizenship Act allows the Minister to commence an “action”, i.e., in the Federal Court, to have a person declared “inadmissible on security grounds, on grounds of violating human or international rights or on grounds of organized criminality” under s. 34 , 35 , or 37 of the IRPA : Inadmissibility 10.5 (1) On the request of the Minister of Public Safety and Emergency Preparedness, the Minister shall — in the originating document that commences an action under subsection 10.1(1) on the basis that the person obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in section 34 , 35 or 37 of the Immigration and Refugee Protection Act other than a fact that is also described in paragraph 36(1)(a) or (b) or (2)(a) or (b) of that Act — seek a declaration that the person who is the subject of the action is inadmissible on security grounds, on grounds of violating human or international rights or on grounds of organized criminality under, respectively, subsection 34(1) , paragraph 35(1) (a) or (b) or subsection 37(1) of the Immigration and Refugee Protection Act .", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-94", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 171", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The effect of s. 10.5(1) of the Citizenship Act is therefore to create a form of shared jurisdiction between courts and administrative decision makers over inadmissibility on grounds of security (s. 34), human or international rights violations (s. 35), or organized criminality (s. 37). The implications of this were not argued by the parties in these appeals, including in light of the new category of correctness review recognized by this Court in Society of Composers. However, it is clear that a determination of inadmissibility under s. 34, 35, or 37 — as distinct from inadmissibility on grounds of criminality (s. 36) or other less serious grounds set out in ss. 38 to 41 — has effects beyond the IRPA . Reasonableness review does not adequately safeguard against the need for consistency and legal coherence in this context.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-95", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 172", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Further, as this Court held in Vavilov, certain issues require a high degree of interpretive consistency to ensure conformity with Canada’s international obligations (para. 192). While neither Mr. Mason nor Mr. Dleiow is a Convention refugee, the IAD’s interpretation of s. 34(1)(e) could foreseeably impact Canada’s future compliance with its non‑refoulement obligations (see Jamal J.’s reasons, at paras. 104‑17). My colleague views the IAD’s “fail[ure] to address the legal constraints imposed by international law” as unreasonable (para. 104). With respect, I would have concerns, given the emphasis in Vavilov on a “reasons first” approach, with finding a decision to be “unreasonable” based on arguments that were not put before the administrative decision maker and that do not apply to the individuals actually before that decision maker. Correctness review of certified questions eliminates such concerns and ensures respect for Canada’s international and treaty obligations.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-96", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 173–174", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "The answers to certified questions under the IRPA may also have impacts on criminal law (see, e.g., Tran, at paras. 39‑42). In such situations, a lack of clarity on the scope of inadmissibility under s. 34 may prevent accused persons from making informed decisions about whether to enter into a plea agreement. As Wagner J. (as he then was) noted in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696 (dissenting, but not on this point), [c]ollateral consequences that affect the accused person’s fundamental interests could have a more significant impact on the accused than the criminal sanction itself. As a result, it may be essential for an accused to be aware of such consequences in order to enter an informed guilty plea. This is particularly true in the immigration context, in which an accused may be exposed to a collateral consequence as serious as deportation. People who are to be deported may experience any number of serious life‑changing consequences. They may be forced to leave a country they have called home for decades. They may return to a country where they no longer have any personal connections, or even speak the language, if they emigrated as children. If they have family in Canada, they and their family members face dislocation or permanent separation. [para. 72]\n\nIn sum, certified questions tend to have significant consequences for the justice system as a whole or for other institutions of government (Vavilov, at para. 59). In many cases, this will arguably place them within the existing category of general questions of law of central importance to the legal system as a whole. If not, the combined effect of their broader significance and Parliament’s intent that they be decided by appellate courts justifies a departure from the presumption of reasonableness review.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-97", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 175–176", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "To be clear, this conclusion would not change the standard of review applicable to the vast majority of administrative decisions under the IRPA . Decisions of the Immigration and Refugee Board, as well as those made by various ministers, government departments, and agencies, would continue to be reviewed on a standard of reasonableness in most cases. It is only a small and distinct subset of legal questions — those certified as raising issues of broad significance or general importance within the statutory scheme — for which the rule of law, in addition to Parliament’s intent, mandates correctness review. III. Application\n\nApplying a standard of review of correctness, I agree with my colleague that inadmissibility under s. 34(1)(e) requires a nexus between the relevant act of violence and with national security or the security of Canada (para. 121). Together with the reasons he identifies, I would briefly emphasize the following points of statutory context.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-98", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "para 177", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, the government’s own explanation of the IRPA describes s. 34 as a “national security” provision: This provision makes a person inadmissible to Canada for reasons of national security, including espionage, subversion, and terrorism. This provision clearly states that permanent residents and foreign nationals are inadmissible on security grounds for engaging in terrorism or for being a member of an organization that engages in terrorism. The facts that constitute inadmissibility under this provision include facts arising from omissions and those for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. Other inadmissible grounds relating to security include being a danger to the security of Canada and engaging in acts of violence that would or might endanger the lives or safety of persons in Canada. [Emphasis added.] (Citizenship and Immigration Canada, Bill C‑11: Clause by Clause Analysis (September 2001), at pp. 31‑32)", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-99", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 178–180", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, the serious nature of inadmissibility on security grounds (see Jamal J.’s reasons, at paras. 86‑97) is reinforced by several additional distinctions in the statutory scheme. Under s. 36(1), both foreign nationals and permanent residents may be inadmissible on grounds of serious criminality. However, only foreign nationals may be inadmissible on grounds of criminality (s. 36(2)). The difference between “criminality” and “serious criminality”, for offences committed in Canada, is that serious criminality requires a conviction for an offence punishable by a maximum term of imprisonment of at least 10 years or for an offence for which a sentence of more than 6 months’ imprisonment has been imposed (s. 36(1)(a)). A permanent resident convicted of an offence falling short of these requirements cannot be found inadmissible under s. 36(2).\n\nThe IAD’s interpretation of s. 34(1)(e) eliminates this carefully legislated distinction. A permanent resident who is charged with an act of violence that would not qualify as serious criminality under s. 36(1) could instead be found inadmissible under s. 34(1)(e), even if the alleged act did not result in a conviction.\n\nFurther, s. 64(1) of the IRPA denies a right of appeal to permanent residents or foreign nationals found inadmissible on grounds of security under s. 34, among other serious categories of inadmissibility: No appeal for inadmissibility 64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security [(s. 34)], violating human or international rights [(s. 35)], serious criminality [(s. 36(1))] or organized criminality [(s. 37)].", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-100", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 181–183", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "Thus, a foreign national convicted of assault, an act of violence, and found inadmissible by the Immigration Division (“ID”) on grounds of criminality under s. 36(2) may appeal that finding to the IAD. If the same conduct could ground inadmissibility under s. 34(1)(e) — as the IAD held in this case — the foreign national would lose the ability to appeal. That person would be better off being convicted, and found inadmissible under s. 36(2), than if their charges were dropped or stayed and they were instead found inadmissible under s. 34(1)(e).\n\nClearly, there is potential overlap between “acts of violence” contemplated in s. 34(1)(e) and “criminality” addressed in s. 36. The implication of the respective treatment of these sections throughout the IRPA is that inadmissibility on security grounds, under s. 34, is more serious than inadmissibility on grounds of criminality. As Grammond J. noted in Mr. Mason’s case, the IAD’s interpretation of s. 34(1)(e) “brings under the most severe category of inadmissibility a vast range of conduct that includes acts that are below the thresholds set by section 36” (F.C. reasons, Mason, at para. 50). Given the careful wording of s. 36, this cannot have been Parliament’s intention.\n\nThird, I would return to s. 10.5(1) of the Citizenship Act , which also distinguishes between facts described in ss. 34, 35, and 37 of the IRPA and those described in s. 36. This, too, reinforces the fact that inadmissibility under s. 34 is considered among the gravest forms of inadmissibility and that the section should be interpreted as applying only to acts of violence with a nexus to national security.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-101", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 184–186", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "This conclusion is consistent with the only prior interpretations of s. 34(1)(e) and its predecessor, s. 19(1)(g) of the Immigration Act. In X (Re), 2017 CanLII 146735 (I.R.B. (Imm. Div.)), Member King held that a series of common assaults could not ground inadmissibility under s. 34(1)(e): I conclude that paragraph 34(1)(e) cannot be interpreted to include the type of one‑on‑one violent acts that exist in this case. While assaults against individuals are undesirable, they cannot be considered to be a threat to the safety of persons in Canada and the security of Canadian society, as contemplated by this section of the IRPA . [para. 42]\n\nMember King also distinguished the circumstances in X (Re) from those before the Federal Court in Moumdjian v. Canada (Security Intelligence Review Committee), [1999] 4 F.C. 624 (C.A.), which were “more obviously related to the security of Canada” and dealt with a conspiracy to assassinate a Turkish diplomat in Canada (paras. 77‑78; see also Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (T.D.)).\n\nFor these reasons, in addition to those identified by my colleague and by Grammond J. in the Federal Court, I would conclude that inadmissibility under s. 34(1)(e) requires a nexus between the relevant act of violence and with national security or the security of Canada. However, it remains the task of administrative decision makers under the IRPA to apply this interpretation going forward, including determining which acts of violence may indeed qualify as a threat to national security or the security of Canada. IV. Conclusion", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-20081-102", - "doc_type": "caselaw", - "act_code": "2023 SCC 21", - "act_short": "Mason", - "act_name": "Mason v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", - "marginal_note": "paras 187–189", - "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court has made it clear that the focus of reasonableness review is on “the decision the administrative decision maker actually made”, not on the conclusion the court would have reached in the decision maker’s place (Vavilov, at para. 15; see Jamal J.’s reasons, at para. 8). Yet in the context of certified questions under the IRPA , this Court has repeatedly provided definitive, correct answers to disputed questions of statutory interpretation, including when applying a reasonableness standard of review.\n\nMy colleague does so again in this case. While I agree that the IAD’s interpretation of s. 34(1)(e) was unreasonable, I do not accept that Parliament intended for courts to defer to reasonable but legally incorrect answers to this or other certified questions. Invariably, these questions transcend the interests of the parties and raise issues of broad significance and general importance within Canada’s immigration and refugee protection regime. These are the exact types of questions for which the rule of law demands — and Parliament expressly intended for appellate courts to provide — correct answers (see Vavilov, at paras. 10 and 69‑70). As required by the principles and framework set out in Vavilov, I would recognize certified questions under the IRPA as a new category of correctness review moving forward. V. Disposition\n\nIn the result, I agree with my colleague’s disposition (para. 123). I would allow the appeals, set aside the decisions of the Federal Court of Appeal and allow the applications for judicial review. In Mr. Mason’s appeal, I would quash the IAD decision thus restoring the ID decision. In Mr. Dleiow’s appeal, I would quash the ID decision and deportation order. Appeals allowed.", - "current_to": "2023-09-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" - }, - { - "id": "scc-16803-1", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 1–4", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Côté J. — Canada’s Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), recognizes that there are important social, cultural and economic benefits to immigration. It also recognizes that successful integration of permanent residents involves mutual obligations for those new immigrants and for Canadian society.\n\nThis appeal concerns the obligation of permanent residents to avoid “serious criminality”, as set out in s. 36(1) (a) of the IRPA . This obligation is breached when a permanent resident is convicted of a federal offence punishable by a maximum term of imprisonment of at least 10 years, or of a federal offence for which a term of imprisonment of more than 6 months has been imposed.\n\nThe appellant, Thanh Tam Tran, was convicted of a federal offence and received a 12-month conditional sentence. At issue in this appeal is whether a conditional sentence consists of a “term of imprisonment” for the purposes of s. 36(1)(a) and whether, when the maximum sentence for an offence has changed over time, the “maximum term of imprisonment” referred to at s. 36(1) should be taken to be the maximum sentence that could have been imposed at the time of the commission of the offence, of the conviction, of sentencing or of the determination as to the permanent resident’s admissibility to Canada.\n\nFor the reasons that follow, I would allow the appeal. I. Background", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-2", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 5–6", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 36(1) (a) of the IRPA provides the basis for finding a permanent resident inadmissible to Canada on grounds of “serious criminality”: 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; Inadmissibility can lead to loss of status and removal from Canada.\n\nIf a Canada Border Services Agency (“CBSA”) officer is of the opinion that a permanent resident is inadmissible, that officer may prepare a report setting out the relevant facts and transmit that report to the Minister of Public Safety and Emergency Preparedness (“Minister”) (IRPA , s. 44(1) ). If the Minister is of the opinion that the report is well founded, the Minister may refer the report to the Immigration Division of the Immigration and Refugee Board (“Immigration Division”) for an admissibility hearing (s. 44(2)). However, even if he is of the opinion that the report is well founded, the Minister retains some discretion not to refer it to the Immigration Division.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-3", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 7–9", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "If the Minister does refer the report to the Immigration Division, an admissibility hearing is held for the permanent resident, and the Immigration Division must either recognize that person’s right to enter Canada (IRPA , s. 45 (a)), authorize him or her to enter Canada for further examination (s. 45(c)), or make a removal order against that person (s. 45(d)). If a removal order is made, that person’s permanent resident status is lost (IRPA , s. 46(1) (c)). Although a right to appeal to the Immigration Appeal Division exists against a decision to make a removal order against a permanent resident (IRPA , s. 63(3) ), there is no right to appeal by a permanent resident who has been found inadmissible on grounds of serious criminality if the finding of inadmissibility was “with respect to a crime that was punished in Canada by a term of imprisonment of at least six months” (IRPA , s. 64(2) ).\n\nThis appeal concerns the judicial review of a decision by the Minister to refer a report concerning Mr. Tran’s admissibility to the Immigration Division.\n\nMr. Tran is a citizen of Vietnam. In 1989, he acquired permanent resident status in Canada. In March 2011, he was involved in a marihuana grow operation containing approximately 915 plants and was charged with production of a controlled substance, contrary to s. 7(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“CDSA ”). At the time of the commission of the offence, the maximum penalty if convicted was seven years of imprisonment (s. 7(2)(b)).", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-4", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 10–13", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "On November 6, 2012, legislation came into effect (Safe Streets and Communities Act, S.C. 2012, c. 1, s. 41) increasing the maximum sentence for this offence to 14 years of imprisonment and providing for a new minimum sentence of 2 years of imprisonment if the number of plants produced was more than 500 (CDSA , s. 7(2) (b)(v)).\n\nOn November 29, 2012, Mr. Tran was convicted of the charge against him. On January 18, 2013, he received a 12-month conditional sentence of imprisonment, to be served in the community. II. Decisional History A. Administrative Decisions\n\nOn July 26, 2013, a CBSA officer prepared a report stating that Mr. Tran was inadmissible to Canada under s. 36(1) (a) of the IRPA . A delegate of the Minister referred Mr. Tran’s case to the Immigration Division for an admissibility hearing. This referral was withdrawn on September 10, 2013, in view of legislative changes to appeal rights under s. 64(2) of the IRPA . Mr. Tran was given an opportunity to make additional submissions as to why a removal order should not be sought against him.\n\nOn October 4, 2013, Mr. Tran provided written submissions in which he argued that he did not fall within the purview of s. 36 because: (1) the conditional sentence order made against him was not a “term of imprisonment”, and therefore a “term of imprisonment of more than six months” had not been imposed; and (2) the CDSA amendments raising the maximum sentence for the offence for which he was convicted were not retroactively applicable to him, and therefore the offence, at the time he committed it, was not “punishable by a maximum term of imprisonment of at least 10 years”. Mr. Tran also made submissions on various discretionary factors in support of his position that his case did not warrant referral to the Immigration Division.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-5", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 14", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "On October 7, 2013, a second CBSA officer submitted another report (“Report”) regarding Mr. Tran to a delegate of the Minister. The Report states, in part: I recommend that this report be referred to an admissibility hearing and a deportation order be issued. . . . I have reviewed counsel’s submissions carefully and thoroughly, and given thought to each relevant point. Many are legal arguments that do not fall into the scope of my duties in this matter. In looking at my responsibility under the Act, I am guided by CIC Enforcement Manual ENF 6, which states I should consider the following non-exhaustive list of factors. I address each of them below, with consideration to additional and relevant points raised by counsel. [Emphasis added.] (A.R., vol. I, at p. 1) The Report then canvasses conditions in Mr. Tran’s home country of Vietnam, his degree of establishment in Canada, and the best interests of his children. Notably, the Report lists a series of arrests and charges without conviction, and a conviction for impaired driving, which are cited in support of a conclusion that Mr. Tran tends to get arrested every couple of years. By failing to acknowledge any of his past problems, particularly his very recent conviction, it is my opinion that [Mr. Tran] is not accepting responsibility for his actions. Based on the little information before me, I can only assume he will reoffend because he has done so in the past and because he has not demonstrated any inclination to take responsibility for anything beyond what he thinks immigration officials are aware of. . . . . . . Based on all of the above information, and in consideration of the submissions made by counsel, it is my opinion that this report should be referred to a hearing. [Mr.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-6", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 14–15", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Tran] has been involved in a serious criminal offence. The evidence provided is that he has been involved in criminal activity in the past and that he is not taking full responsibility for his actions. The mitigating factors (establishment, family, hardship in Vietnam, etc.) are overshadowed by the seriousness of the offence, [Mr. Tran]’s conduct in society, and the lack of any indication his behaviour will improve. (A.R., vol. I, at p. 3)\n\nOn October 10, 2013, the Minister’s delegate endorsed the Report and referred the matter for an admissibility hearing before the Immigration Division. Mr. Tran then applied for judicial review of the delegate’s decision. B. Judicial Review in the Federal Court, 2014 FC 1040, 31 Imm. L.R. (4th) 160", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-7", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 16", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Justice O’Reilly found the decision to be unreasonable. He allowed Mr. Tran’s application for judicial review and ordered that another officer consider the question of Mr. Tran’s inadmissibility. The judge found that whether a conditional sentence is a “term of imprisonment” varies according to the statutory context; that conditional sentences are meant as an alternative to incarceration for less serious offences; and that Mr. Tran’s conditional sentence was not a “term of imprisonment” under the IRPA . Ergo, Mr. Tran had not been sentenced to a “term of imprisonment of more than six months”. On the maximum term of imprisonment question, O’Reilly J. found that s. 36(1)(a) referred to the maximum punishment available at the time of conviction (para. 20): The maximum sentence at the time of his conviction was 7 years. While the maximum sentence was subsequently raised to 14 years, Mr. Tran was not punishable by a sentence of that duration. Therefore, the offence of which he was convicted did not come within s. 36(1)(a), and the officer’s decision to the contrary was unreasonable. The judge also found the officer’s reliance on unproven allegations of criminal activity to be unreasonable.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-8", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 17–18", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Justice O’Reilly certified two questions of general importance, thus permitting an appeal to the Federal Court of Appeal under s. 74 (d) of the IRPA : 1. Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code [R.S.C. 1985, c. C-46 ] a “term of imprisonment” under s. 36(1) (a) of the IRPA ? 2. Does the phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1) (a) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined? (2015 FC 899) C. Federal Court of Appeal, 2015 FCA 237, [2016] 2 F.C.R. 459\n\nJustice Gauthier, for a unanimous Federal Court of Appeal, allowed the Minister’s appeal. She found that even if the reviewing judge’s interpretation of s. 36(1)(a) was correct, he had nevertheless failed to do what he was required to do under a reasonableness standard on judicial review: to assess whether the interpretation adopted by the administrative decision maker fell within the range of interpretations defensible on the law and facts.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-9", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 19", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Gauthier J.A. found that the interpretation of s. 36(1)(a) adopted by the Minister’s delegate was not unreasonable. Regarding the actual term of imprisonment imposed (the first certified question), she held that it was not unreasonable to construe a conditional sentence as a “term of imprisonment” under s. 36(1)(a). She added that to say that a conditional sentence is more lenient than similar terms of incarceration does not mean that Parliament does not nevertheless consider the offence in question serious enough to warrant inadmissibility. She noted that the parliamentary committee debates about lowering the threshold of the term of imprisonment beyond which there is no right to appeal inadmissibility findings to the Immigration Appeal Division (IRPA , s. 64(2) ) included three proposals to exclude conditional sentences, each of which was defeated. She explained that if Parliament considers a conditional sentence of at least six months to be sufficiently serious to warrant the loss of appeal rights, it was not unreasonable for the Minister’s delegate to interpret a conditional sentence as a “term of imprisonment” under s. 36(1)(a).", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-10", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 20–21", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "With respect to “punishable by a maximum term of imprisonment of at least 10 years”, Gauthier J.A. found that “punishable” refers to the offence under the Act of Parliament and not to what could be imposed on any particular offender. She was of the view that the context of s. 36(1)(a) supports a conclusion that the test is objective rather than subjective. She found that it was not unreasonable to conclude that the relevant point in time is when admissibility is being assessed, since admissibility should be assessed against Canada’s prevailing views of the seriousness of the offence in question. She was also of the view that s. 11( i ) of the Canadian Charter of Rights and Freedoms did not apply because proceedings before the Minister’s delegate are neither criminal nor penal. III. Preliminary Matters\n\nPrior to tackling the statutory interpretation questions at the heart of this appeal, I will address two preliminary matters. First, to be clear, the decision under review is that of the Minister’s delegate, taken pursuant to s. 44(2) of the IRPA , to refer the matter to the Immigration Division for an admissibility hearing. While the Minister’s delegate merely adopted the Report ― and that Report is all that is available in support of the decisions taken at the s. 44(1) and s. 44(2) stages ― it is nevertheless the Minister’s delegate’s decision that was under review and not that of the officer.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-11", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 22–24", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, while courts have the discretion to hear an application for judicial review prior to the completion of the administrative process and the exhaustion of appeal mechanisms, they should exercise restraint before doing so (Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at paras. 35-36; D. J. M. Brown and J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at topic 3:4100). In this case, the parties have not asked this Court to revisit the decisions of the courts below to hear the application, and I am of the view that this Court should respect those decisions. IV. Analysis\n\nThe modern principle of statutory interpretation is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). Applying this approach, I am of the view that, under either standard of review, the assumed interpretation of s. 36(1)(a) by the Minister’s delegate cannot stand. A. Conditional Sentences Are Not Included in “Term of Imprisonment”\n\nI cannot, on either standard of review, accept the interpretation that conditional sentences are captured in the meaning of “term of imprisonment”. Such an interpretation must be rejected for at least three reasons.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-12", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 25–26", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, the purpose of s. 36(1)(a) is to define “serious criminality” for permanent residents convicted of an offence in Canada. It is clear from the wording of the provision that whether or not an imposed sentence can establish “serious criminality” depends on its length. Length is the gauge. It must be “more than six months”. However, the seriousness of criminality punished by a certain length of jail sentence is not the same as the seriousness of criminality punished by an equally long conditional sentence. In other words, length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of the permanent resident.\n\nChief Justice Lamer explained in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 44, that “a conditional sentence, even with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration”. He elaborated as follows (at para. 52): A judge does not impose a fixed sentence of “x months” in the abstract, without having in mind where that sentence will be served. Furthermore, when a conditional sentence is chosen, its duration will depend on the type of conditions imposed. Therefore, the duration of the sentence should not be determined separately from the determination of its venue. [Citations omitted.]", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-13", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 27", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "The dissymmetry between the length of jail terms and the length of conditional sentences was usefully illustrated by counsel for Mr. Tran. On the one hand, there are cases in which mitigating factors prompted courts to replace jail terms of less than six months with conditional sentences longer than six months (e.g. R. v. Shah, 2003 BCCA 294, 182 B.C.A.C. 142; R. v. Saundercook-Menard, 2008 ONCA 493; R. v. Chapman, 2007 YKSC 55; R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.)). On the other hand, there are cases in which aggravating factors led courts to replace conditional sentences longer than six months with jail terms shorter than six months (e.g. R. v. Keller, 2009 ABCA 418, 469 A.R. 151; R. v. Sandhu, 2014 ONCJ 95; R. v. Kasakan, 2006 SKCA 14, [2006] 8 W.W.R. 23; R. v. Lebar, 2010 ONCA 220, 101 O.R. (3d) 263). Notably, in the case at bar, Mr. Tran asked the Court of Appeal for British Columbia to replace his 12-month conditional sentence with a custodial sentence of less than 6 months (A.F., at para. 18).", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-14", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 28", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Not only is length an unreliable indicator of “serious criminality” when comparing jail sentences to conditional sentences, but it may not even be a reliable measure across conditional sentences because of the disparate conditions attached to them. More fundamentally, conditional sentences generally indicate less “serious criminality” than jail terms. As Lamer C.J. said, a “conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders” (Proulx, at para. 21; see also R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780, at para. 102). Thus, interpreting “a term of imprisonment of more than six months” as including both prison sentences and conditional sentences undermines the efficacy of using length to evaluate the seriousness of criminality.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-15", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 29", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, the meaning of “term of imprisonment” varies according to the statutory context. In some instances, the word “imprisonment” is used in the Criminal Code to capture conditional sentences (R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, at para. 25; Proulx, at para. 29). But that is not always the case. In R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674, at para. 14, Justice Fish concluded that there is no consistent meaning for the word “imprisonment” in the Criminal Code : . . . “imprisonment” in the phrases “sentence of imprisonment” and “term of imprisonment” does not bear a uniform meaning for all purposes of the Criminal Code . In several instances, these terms necessarily contemplate incarceration. Nor is there a consistent meaning across other statutes. Critically, its meaning in ss. 36(1) (a) and 64 of the IRPA was interpreted by this Court in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at paras. 11 and 13, to mean “prison”: . . . the IRPA creates a new scheme whereby persons sentenced to more than six months in prison are inadmissible: IRPA , s. 36(1) (a). If they have been sentenced to a prison term of more than two years then they are denied a right to appeal their removal order: IRPA , s. 64 . Provisions allowing judicial review mitigate the finality of these provisions, as do appeals under humanitarian and compassionate grounds and pre-removal risk assessments. However, the Act is clear: a prison term of over six months will bar entry to Canada; a prison term of over two years bans an appeal. . . . In summary, the provisions of the IRPA and the Minister’s comments indicate that the purpose of enacting the IRPA , and in particular s.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-16", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 29–30", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "64, was to efficiently remove criminals sentenced to prison terms over six months from the country. [Emphasis added.] While not necessarily determinative, this existing interpretation of “term of imprisonment” in the context of the IRPA fortifies my conclusion in this case.\n\nThe Minister says that, in recent amendments to ss. 50 (b) and 64(2) of the IRPA , the exclusion of conditional sentences from the meaning of “term of imprisonment” was explicitly rejected. I do not agree with this interpretation of legislative history. It is useful to note as a starting point that the six-month threshold originated in the Immigration Act, 1976, S.C. 1976-77, c. 52, s. 27(1)(d) ― before the introduction of conditional sentences as a sentencing option in Canada ― and was later kept in the IRPA in 2002. In 2013, the threshold for denial of appeal rights set out in s. 64(2) was reduced from a “term of imprisonment” of at least two years to a “term of imprisonment” of at least six months (S.C. 2013, c. 16, s. 24). The Minister points to committee debates surrounding those amendments ― debates in which proposals to exclude conditional sentences from counting toward the s. 64(2) threshold were rejected. Specifically, the Minister’s argument rests on the rejection of three proposals by the House of Commons and Senate committees tasked with examining amendments. However, since the proposed amendments addressed more than just conditional sentences[1] and had to do with changes to s. 64(2) rather than to s. 36(1)(a), I cannot draw any meaningful inferences from the rejection of those proposals.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-17", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 31", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, my interpretation avoids absurd results. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 27, Justice Iacobucci explained the presumption that the legislature does not intend absurd consequences: It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté [P.-A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)], an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile ([R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994)], at p. 88).", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-18", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 32–34", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow. As previously mentioned, conditional sentences are “for less serious and non-dangerous offenders” (Proulx, at para. 21). Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes ― shorter because they are served in jail rather than in the community. It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA (s. 3(1) (h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.\n\nIt would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they can remain in Canada, as Mr. Tran has done in this case. Conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing (Proulx, at para. 20). These objectives would be sabotaged if individuals who are subject to conditional sentences sought to replace them with prison terms, thinking the latter to be their only path for a future in the Canadian communities from which incarceration would remove them.\n\nFor these reasons, the phrase “term of imprisonment” in s. 36(1) (a) of the IRPA cannot, by either standard of review, be understood to include conditional sentences. B. The Maximum Term Is Determined as of the Time of the Commission of the Offence", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-19", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 35–36", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Turning to the interpretation of “punishable by a maximum term”, in my view, a contextual reading of s. 36(1)(a) supports only one conclusion: the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence.\n\nSection 36(1)(a) begins with “having been convicted”, which sets the temporal marker at the time of conviction. As counsel for Mr. Tran underscored during oral argument, the fact of a conviction precedes the two disjunctive clauses: the maximum term and the actual term imposed. Both are rooted in the fact of having been convicted. It is at the moment of conviction that the two disjunctive clauses become operable, and it is with reference to that time that the clauses are to be understood.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-20", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 37–38", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "By the time of Mr. Tran’s conviction (November 29, 2012) and sentencing (January 18, 2013), the maximum sentence for an offence under s. 7(1) of the CDSA had increased from imprisonment for 7 years to imprisonment for 14 years. However, in view of s. 11( i ) of the Charter , Mr. Tran, or anyone else in his position, could not receive a sentence greater than seven years. This is so because production of a controlled substance, contrary to s. 7(1) of the CDSA , is a criminal offence. Hence, sentences for convictions under that provision must not offend s. 11( i ) of the Charter which provides: 11. Any person charged with an offence has the right . . . (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. Accordingly, the maximum sentence Mr. Tran could have been sentenced to upon his conviction is limited by the maximum sentence available at the time of the commission of the offence. Mr. Tran was not punishable by a term of imprisonment of at least 10 years.\n\nThe Court of Appeal held that “punishable by a maximum term of imprisonment of at least 10 years” could be interpreted without reference to Mr. Tran or to a person in his position. I disagree. The criterion cannot simply be the abstract maximum penalty divorced from the actual “permanent resident . . . convicted” in a particular case. In my view, “punishable by a maximum term of imprisonment of at least 10 years” is to be understood as referring to the circumstances of the actual offender or of others in similar circumstances.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-21", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 39", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "This interpretation aligns with the purpose of the IRPA , as outlined in s. 3: 3 (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada; . . . (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; (d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; . . . (h) to protect public health and safety and to maintain the security of Canadian society; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and (j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-22", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 40", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "As stated above, the IRPA aims to permit Canada to obtain the benefits of immigration, while recognizing the need for security and outlining the obligations of permanent residents. The Minister emphasizes the IRPA ’s security objective. Yet, as the Chief Justice explained in Medovarski, the security objective in the IRPA “is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada” (para. 10). The obligation under the IRPA to behave lawfully includes not engaging in “serious criminality” as defined in s. 36(1). So long as this obligation is met, the IRPA ’s objectives related to “successful integration” will remain relevant to permanent residents, and the IRPA ’s objectives related to the “benefits of immigration” and “security” will be furthered.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-23", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 41", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "A similar interaction between the mutual obligations of the state and of individuals, in the criminal law context, has been described as follows: The state’s duty to provide a framework for security may be presented as part of a bargain between the state and its citizens, a bargain in which a measure of security is provided in return for a measure of obedience. . . . . . . . . . The fundamental duty of justice requires the state to recognise certain rights of individuals in its dealings with them; notably, in the sphere of criminal law, the state should respect the rule of law and the principle of legality, so that citizens as rational agents may plan their lives so as to avoid criminal conviction. (A. Ashworth, Positive Obligations in Criminal Law (2013), at pp. 100-101) This description is apposite in the immigration law context. Permanent residents too must be able to “plan their lives”. Their obligations must be communicated to them in advance. As Lon Fuller warned, a legal system must “publicize, or at least . . . make available to the affected party, the rules he is expected to observe” (The Morality of Law (rev. ed. 1969), at p. 39). When Mr. Tran committed his offence, he could not have been aware that doing so was an act of “serious criminality” that might breach his obligations and lead to deportation.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-24", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 42", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Minister relies on Medovarski, at para. 47, for the proposition that permanent residents cannot expect that “the law will not change from time to time”. The Minister argues that admissibility under s. 36(1)(a) must be tested against Parliament’s views of the seriousness of the offence at the time of the admissibility decision. I do not agree. While Parliament is entitled to change its views on the seriousness of a crime, it is not entitled to alter the mutual obligations between permanent residents and Canadian society without doing so clearly and unambiguously. In this case, it has failed to do so. As such, s. 36(1)(a) must be interpreted in a way that respects these mutual obligations. The right to remain in Canada is conditional, but it is conditional on complying with knowable obligations. Accordingly, the relevant date for assessing serious criminality under s. 36(1)(a) is the date of the commission of the offence, not the date of the admissibility decision.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-25", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 43–44", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "The presumption against retrospectivity lends further support to this conclusion. While I agree with the Court of Appeal that s. 11( i ) of the Charter does not apply to the decision of the Minister’s delegate because the proceedings were neither criminal nor penal, the presumption against retrospectivity is a rule of statutory interpretation that is available in the instant case. The purpose of this presumption is to protect acquired rights and to prevent a change in the law from “look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction” (Driedger (1983), at p. 186). The presumption works such that “statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act” (Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, at p. 279; see also British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at para. 71).\n\nThe presumption against retrospectivity engages the rule of law. Lord Diplock explained that the rule of law “requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it” (Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G., [1975] A.C. 591 (H.L.), at p. 638). As this Court explained in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 70, the rule of law “vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs”.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-26", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 45–47", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "The presumption against retrospectivity also bespeaks fairness (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 25). For example, sentencing judges are required to consider immigration consequences (R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739). It would raise issues of fairness to introduce a new collateral consequence after sentencing that would have been relevant before sentencing. As Mr. Tran points out, a permanent resident convicted of marihuana production 25 years ago would suddenly find themselves inadmissible years after having served the associated sentence. Such an outcome would not only offend fairness and the rule of law, but would also undermine the decision of the sentencing judge who decades ago crafted an appropriate sentence without knowledge of additional deportation consequences.\n\nThe Minister argues that the presumption against retrospectivity cannot assist Mr. Tran because this Court’s decision in Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301, precludes its application. I disagree.\n\nIn Brosseau, this Court held that the presumption will not apply if the new prejudicial consequence at issue is designed to protect the public rather than as a punishment for a prior event. The fact that s. 36(1) (a) of the IRPA reflects “an intent to prioritize security” (Medovarski, at para. 10) is not, in itself, sufficient to bring it within the “public protection” exception contemplated in Brosseau. To interpret the public protection exception as inclusive of all legislation that can be said to be broadly aimed at public protection would ignore the purpose underlying the presumption against retrospectivity.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-27", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 48–49", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "The presumption is a tool for discerning the intended temporal scope of legislation. In the absence of an indication that Parliament has considered retrospectivity and the potential for it to have unfair effects, the presumption must be that Parliament did not intend them: The absence of a general requirement of legislative prospectivity exists despite the fact that retrospective and retroactive legislation can overturn settled expectations and is sometimes perceived as unjust: see E. Edinger, “Retrospectivity in Law” (1995), 29 U.B.C. L. Rev. 5, at p. 13. Those who perceive it as such can perhaps take comfort in the rules of statutory interpretation that require the legislature to indicate clearly any desired retroactive or retrospective effects. Such rules ensure that the legislature has turned its mind to such effects and “determined that the benefits of retroactivity (or retrospectivity) outweigh the potential for disruption or unfairness”: Landgraf v. USI Film Products, 511 U.S. 244 (1994), at p. 268. [Emphasis added.] (Imperial Tobacco, at para. 71, per Major J.)\n\nThe presumption exists to ensure that laws will only apply retrospectively where Parliament has clearly signaled that it has weighed the benefits of retrospectivity with its potential unfairness. Otherwise, we presume that Parliament did not intend such effects.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-28", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 50", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Ordinarily, express language or necessary implication (Gustavson Drilling, at p. 279) provides this necessary indication that Parliament has turned its mind to the issue of retrospectivity. The “public protection” exception permits protective legislation to operate retrospectively absent express language or necessary implication, provided that legislative intent otherwise supports doing so. But, in accordance with the underlying purpose of the presumption, the exception is only triggered where the design of the penalty itself signals that Parliament has weighed the benefits of retrospectivity against its potential for unfairness. This will be the case where there is a clear nexus between the protective measure and the risks to the public associated with the prior conduct to which it attaches. In such cases, as in Brosseau, the scope of protection is aligned with the specific risks posed by persons who have engaged in specific harmful conduct and is tailored to preventing those risks prospectively (see Brosseau, at pp. 319-20, citing R. v. Vine (1875), L.R. 10 Q.B. 195, at p. 199; see also In re A Solicitor’s Clerk, [1957] 1 W.L.R. 1219 (Q.B.)).", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-29", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 51–52", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 36(1) (a) of the IRPA fails to provide such a clear nexus for two reasons, both of which are tied to the fact that Parliament relied on criminal sentences as a gauge for “serious criminality”. First, by not associating “serious criminality” with specific offences and instead relying on the sentences they attract, Parliament contemplated that the range of offences constituting “serious criminality” can expand and contract over time. This suggests that Parliament intended to tailor the penalty to prevailing views about a particular conduct, not to the prevention of risks associated with that conduct (F.C.A. reasons, at para. 58). Second, as “serious criminality” is defined by reference to criminal sentences, the scope of public protection it affords necessarily captures criminal sentencing considerations that extend beyond “public protection”, including punishment (see R. v. Hooyer, 2016 ONCA 44, 129 O.R. (3d) 81, at para. 42; K.R.J., at paras. 31-32).\n\nAs such, s. 36(1)(a) does not engage the “public protection” exception because — in the absence of a clear nexus between the risk and the protective measures available in response — it does not signal that Parliament weighed the potential for unfairness and the protective benefits of requiring that the class of non-citizens inadmissible for serious criminality remain perfectly aligned with the class of offences that s. 36(1)(a) deems “serious” at any point in time.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-30", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "paras 53–55", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "For these reasons, I am of the view that “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence. The maximum sentence that Mr. Tran could have received at that time was only seven years. Thus he was not convicted of an offence “punishable by a maximum term of imprisonment of at least 10 years”. C. Decision by the Minister’s Delegate to Refer\n\nThe Minister’s delegate formed the opinion that the Report on Mr. Tran’s inadmissibility for serious criminality was well founded, and he referred the Report to the Immigration Division on that basis. Because that opinion was premised on an untenable interpretation of the grounds for inadmissibility under s. 36(1)(a), his decision to refer the Report cannot be sustained. It is therefore unnecessary for me to consider whether he properly exercised his discretion under s. 44(2). V. Conclusion\n\nI would allow the appeal, quash the decision of the Minister’s delegate, and remit the matter to a different delegate.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-16803-31", - "doc_type": "caselaw", - "act_code": "2017 SCC 50", - "act_short": "Tran", - "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", - "marginal_note": "para 56", - "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", - "part": "Supreme Court of Canada", - "division": "", - "text": "Additionally, while this Court’s analysis is not limited to the certified questions, in the interest of providing guidance on the legal questions addressed by the Federal Court and Federal Court of Appeal, I would answer those questions as follows: 1. Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code a “term of imprisonment” under s. 36(1) (a) of the IRPA ? ― No. 2. Does the phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1) (a) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined? ― It refers to the maximum term of imprisonment available at the time of the commission of the offence. Appeal allowed.", - "current_to": "2017-10-19", - "last_amended": "", - "history": "[2017] 2 SCR 289", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" - }, - { - "id": "scc-15647-1", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 1–3", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The smuggling of human beings across international frontiers is a matter of increasing concern all over the world. Those who are smuggled pay large sums for what are frequently life-threatening journeys to countries for which they have no documentation or right of entry. Some of these migrants are refugees who have a well-founded fear of persecution in their home country and a right to protection under Canadian and international law. The smugglers, for their part, cynically prey on these people’s desperate search for better lives to enrich themselves without heed to the risks their victims face. The smugglers’ activities are often controlled by extensive transnational criminal organizations which Canada and other states seek to combat through multilateral cooperation. Canada is a party to a number of international instruments aimed both at protecting refugees and combatting human smuggling. These commitments are reflected in the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), and elsewhere in Canadian law.\n\nThese appeals concern s. 37(1) (b) of the IRPA , which renders a person inadmissible to Canada, and effectively denies that person access to refugee determination procedures, if he or she has engaged in, in the context of transnational crime, activities such as people smuggling, trafficking in persons or money laundering.\n\nThe appellants were all found inadmissible to Canada under s. 37(1) (b) of the IRPA on the basis of an interpretation that did not require that the conduct leading to inadmissibility be for profit or be connected with an organized criminal operation. Their situations vary. However, all say they were simply helping fellow asylum-seekers flee persecution, and were not engaged in people smuggling.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-2", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 4–7", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Three questions arise. First, is “people smuggling” in s. 37(1)(b) confined to activities conducted, “directly or indirectly”, for “a financial or other material benefit”? Second, what limits flow from s. 37(1), which provides that a person is declared inadmissible on the grounds of “organized criminality”? Third, what is the effect of the requirement in s. 37(1)(b) that the smuggling be “in the context of transnational crime”?\n\nI conclude that s. 37(1) (b) of the IRPA applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. In coming to this conclusion, I outline the type of conduct that may render a person inadmissible to Canada and disqualify the person from the refugee determination process on grounds of organized criminality. I find, consistently with my reasons in the companion appeal in R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, that acts of humanitarian and mutual aid (including aid between family members) do not constitute people smuggling under the IRPA .\n\nI would return these matters to the Immigration and Refugee Board (“Board”) for a new hearing in accordance with these reasons. II. Facts and Judicial History A. Facts\n\nMr. Hernandez is a native of Cuba who was accepted as a refugee by the United States in 2001. Two years later, he purchased a boat with two others and used it to transport 48 Cubans to the United States without the knowledge of U.S. authorities. Convicted in the United States of alien smuggling and receiving a deportation order from the U.S., he came to Canada and claimed refugee protection.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-3", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 8–11", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "B306, J.P., G.J. and B010 are among a group of nearly 500 Tamils from Sri Lanka who boarded the cargo ship Sun Sea in Thailand. The organizers of the voyage promised to transport them to Canada for sums ranging from $20,000 to $30,000 per person. Shortly after departure, the Thai crew abandoned the ship, leaving the asylum-seekers on board to their own devices. Twelve of the migrants took over various duties during the three-month voyage across the Pacific Ocean to Canada. The ship was dilapidated, unsafe and crowded. Food was in short supply and the fear of interception was constant.\n\nB010 worked two three-hour shifts in the engine room each day, monitoring the temperature, water and oil level of the equipment, without, he says, remuneration or benefit.\n\nJ.P., who was accompanied by his wife G.J., stood lookout, read the GPS and radar, and acted as an assistant navigator during the voyage, in return for which he and his wife lived in crew quarters and benefited from more humane conditions than most of the migrants. G.J. was initially ruled inadmissible for consideration as a refugee under s. 42 (a) of the IRPA , as an accompanying family member of a person ruled inadmissible. She has since been admitted as a refugee to Canada, rendering her appeal in this case moot. However, her husband has been declared inadmissible under s. 37(1)(b) because of his work on the ship, and faces potential deportation.\n\nB306 volunteered to act as a cook and lookout in order to receive better rations because, he asserts, he was hungry and in poor health. He cooked three meals a day for the crew, and used a telescope to spot approaching trawlers and notify the crew so that passengers could be hidden below deck to avoid interception.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-4", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 12–15", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA contemplates two streams of refugee claimants — people who apply for refugee status from outside the country and obtain a visa to enter Canada (s. 99(2)); and people who apply from inside Canada (s. 99(3)). The majority of refugee claimants to Canada fall into the first stream. The Sun Sea passengers and Mr. Hernandez fell into the second stream.\n\nMigrants in the second stream face deportation under either of two provisions. First, they may be treated as inadmissible under s. 41 of the IRPA , and made subject to a conditional removal order pursuant to s. 44. Second, they may be declared inadmissible under s. 37(1) (b) of the IRPA on grounds of organized criminal people smuggling.\n\nMost of the Sun Sea migrants — 451 of the 492 — were ruled inadmissible under s. 41 and issued conditional removal orders. The appellants, however, were dealt with under s. 37(1)(b), on the ground that they had been engaged in organized criminal smuggling. The result of being ruled inadmissible under s. 37(1)(b) is that the refugee claimant is peremptorily excluded from Canada without consideration of his or her claim on the merits: s. 101(1)(f). B. Judicial History\n\nThe Board found the appellants inadmissible to Canada, on the basis that s. 37(1) (b) of the IRPA covers all acts of assistance to illegal migrants and, in particular, does not require a profit motive. It ruled that Mr. Hernandez was also inadmissible under s. 36(1)(b) (serious criminality) because of his prior conviction in the U.S. of alien smuggling.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-5", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 16–18", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "On judicial review to the Federal Court, different judges took different views on the scope of s. 37(1)(b). B010’s application was rejected (Noël J., 2012 FC 569, [2014] 1 F.C.R. 95), while the applications of J.P. and G.J., B306 and Mr. Hernandez were allowed (Mosley J., 2012 FC 1466, [2014] 2 F.C.R. 146; Gagné J., 2012 FC 1282, [2014] 2 F.C.R. 128; and Zinn J., 2012 FC 1417, 422 F.T.R. 159, respectively).\n\nThe cases were appealed to the Federal Court of Appeal, which opted for a broad view of the activity caught by s. 37(1)(b). B010’s appeal was rejected (Evans, Dawson and Stratas JJ.A., 2013 FCA 87, [2014] 4 F.C.R. 326) on the ground that s. 37(1)(b) catches all acts of assistance to undocumented migrants, and in particular, does not require that the activity be conducted for financial or other material benefit. Taking the same broad view of s. 37(1)(b) in the remaining cases, the court (Sharlow, Mainville and Near JJ.A., 2013 FCA 262, [2014] 4 F.C.R. 371) allowed the appeals and reinstated the Board’s decisions of inadmissibility. III. The Issues\n\nThe main issue in these appeals is what conduct makes a person inadmissible to apply for refugee status for having engaged in people smuggling under s. 37(1) (b) of the IRPA . Is it any and all assistance to undocumented migrants to Canada, as the respondent Minister of Citizenship and Immigration and the respondent Minister of Public Safety and Emergency Preparedness (collectively referred to as “the Ministers”) contend? Or is the prohibited range of conduct narrower, as the appellants contend? If so, precisely what is the range of conduct caught by s. 37(1)(b)?", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-6", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 19–23", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The answer to this latter question depends on the answer to three more particular questions. First, is “people smuggling” in s. 37(1) (b) of the IRPA limited to activity that is done “in order to obtain, directly or indirectly, a financial or other material benefit”? Second, what limits may be inferred from s. 37(1), which provides that a person is declared inadmissible on the grounds of “organized criminality”? Third, what is the effect of the requirement in s. 37(1)(b) that the smuggling be “in the context of transnational crime”?\n\nIf s. 37(1)(b) applies broadly to any assistance to undocumented migrants, as the Federal Court of Appeal held, a further issue arises: Does s. 37(1)(b) violate s. 7 of the Canadian Charter of Rights and Freedoms in a manner that is not justified under s. 1, with the result that it is unconstitutional? Related to this is whether s. 7 of the Charter is properly engaged at the stage of determining admissibility as a refugee.\n\nA final issue arises from B306’s assertion that his conduct is non-culpable because of duress and necessity. IV. Discussion A. Standard of Review\n\nThe parties disagree as to the standard of review applicable to the Board’s decision.\n\nThere are potentially two issues to which the standard of review may be relevant: (1) the statutory interpretation of s. 37(1) (b) of the IRPA ; and (2) the Board’s application of s. 37(1)(b). This case turns on the statutory interpretation of the provision, which is determinative.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-7", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 24–27", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Recent decisions in the Federal Court of Appeal have taken different views on whether questions of statutory interpretation involving consideration of international instruments should attract review on the standard of correctness or of reasonableness. In Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324, [2014] 2 F.C.R. 224, at paras. 22-25, the court applied a correctness standard; while in B010’s appeal, now before us, the court concluded that reasonableness was the appropriate standard.\n\nThis being the home statute of the tribunal and Ministers, there is a presumption that the standard of review is reasonableness: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 34. The question is whether this presumption has been displaced in the appeals before us.\n\nWe find it unnecessary to resolve this issue on these appeals. In our view, for the reasons discussed below, the interpretation of s. 37(1) (b) of the IRPA taken by the Board and supported by the Ministers was not within the range of reasonable interpretations. B. The Conduct Captured by Section 37(1)(b)\n\nAt the relevant time, s. 37(1)(b) provided as follows: 37. (1) [Organized criminality] A permanent resident or a foreign national is inadmissible on grounds of organized criminality for . . . (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. In my view, there is no important difference between the English and French versions. (See relevant IRPA provisions set out in Appendix A.)", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-8", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 28–30", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 37(1) (b) of the IRPA performs a gatekeeping function. People who fall within it cannot have their refugee claims determined, regardless of the merits. The respondents say that the term “people smuggling” in s. 37(1)(b) should be interpreted broadly as barring anyone who knowingly assisted a person to enter a country illegally. This would catch the appellants, who argue for a narrower interpretation that would allow them to have their refugee claims determined in Canada.\n\nThe range of conduct captured by s. 37(1) (b) of the IRPA is a matter of statutory interpretation. The modern rule of statutory interpretation requires us to read “the words of an Act . . . in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 7; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. (1) The Words of Section 37(1)(b) Read in Their Ordinary and Grammatical Sense\n\nThe starting point for the interpretation of s. 37(1)(b) is the ordinary and grammatical sense of the words used. At this point, the question is what the ordinary and grammatical sense of the words suggests on two questions: whether s. 37(1)(b) is confined to activity directed at “financial or other material benefit”; and what limits may be inferred from the phrases “on grounds of organized criminality” and “in the context of transnational crime”.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-9", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 31–34", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Under the marginal note “Organized criminality”, s. 37(1) provides that “a foreign national is inadmissible on grounds of organized criminality for . . . (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering”.\n\nThe meaning of each of these phrases must be considered.\n\nI begin with the ordinary and grammatical meaning of “people smuggling”. The appellants argue that the ordinary meaning of this phrase involves a financial or other benefit to the smuggler. I do not agree. There is no express mention in s. 37(1)(b) of a profit motive and I cannot find a financial benefit requirement on the ordinary and grammatical meaning of the words alone.\n\nI turn next to the ordinary and grammatical meaning of “organized criminality”. While the phrase “organized crime” is generally understood as involving a profit motive, the phrase “organized criminality” is arguably broad enough to include organized criminal acts for non-pecuniary motives, such as terrorism or sexual exploitation.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-10", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 35–36", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "This leaves the ordinary and grammatical sense of the phrase “in the context of transnational crime”. The meaning of this phrase is arguably broader than that of “organized criminality”. First, the words “in the context of” suggest that a loose connection to transnational crime may suffice. Second, the phrase “transnational crime” is arguably broader than “transnational organized crime”. However, when the words “in the context of transnational crime” are read together with the words “organized criminality” with a view to finding a harmonious meaning for s. 37(1)(b) as a whole, it becomes clear that “transnational crime” in s. 37(1)(b), construed in its ordinary and grammatical sense, refers to organized transnational crime. Since the provision renders people inadmissible on grounds of “organized criminality”, the words “transnational crime” cannot be read as including non-organized individual criminality. In summary, the words of s. 37(1)(b), read in their ordinary and grammatical sense, suggest that the provision applies to acts of illegally bringing people into Canada, if that act is connected to transnational organized criminal activity. (2) The Statutory Context of Section 37(1)(b)\n\nReference to the ordinary grammatical sense of the words used is only the first step in the statutory interpretation of s. 37(1)(b). A statutory provision should be interpreted in its entire context and harmoniously with the scheme of the legislation. As we will see, the broader statutory context of s. 37(1)(b) suggests that the provision targets organized criminal activity in people smuggling for financial or other material benefit, and not asylum-seekers rendering each other mutual assistance.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-11", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 37–38", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first contextual consideration is the relationship between s. 37(1)(b) and the rest of s. 37(1). Subsection (1) introduces the concept of inadmissibility on grounds of organized criminality. Paragraphs (a) and (b) are instances of organized criminality. Section 37(1)(a) makes membership in criminal organizations one ground of inadmissibility, while s. 37(1)(b) makes “engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering” another. Read in the context of s. 37(1) as a whole, it is clear that the focus of s. 37(1)(b), like that of s. 37(1)(a), is organized criminal activity.\n\nThe second consideration is the relationship between inadmissibility for people smuggling under s. 37(1)(b) and other grounds of inadmissibility under the IRPA . The respondents argue that interpreting “people smuggling” to require a financial or other material benefit requirement fails to catch smuggling undertaken for other nefarious purposes, such as sexual exploitation or terrorism. Confining s. 37(1)(b) to financial or other material benefit will thus leave a gap in the statutory scheme, they argue. This contention overlooks other inadmissibility provisions in the IRPA . A person whose admission is not barred by s. 37(1)(b) may nevertheless be denied entry to Canada on grounds of national security (s. 34); human or international rights violations (s. 35); serious criminality (s. 36(1)); and criminality simpliciter (s. 36(2)).", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-12", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 39–41", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "A third contextual consideration is the relationship between s. 37(1)(b) and the related offence provision in s. 117. As I explain in Appulonappa (released concurrently), the language of s. 117 is broad enough to catch anyone who assists an undocumented person to enter Canada. The respondents in these appeals in effect suggest that the narrower language of s. 37(1)(b) should be “read up” to mirror the broad language of s. 117, as was done by the Board and the Federal Court of Appeal.\n\nI cannot agree. In Appulonappa, I conclude that the broad scope of s. 117(1) exceeds Parliament’s purpose, rendering it overbroad and to this extent unconstitutional. A provision that is unconstitutionally overbroad cannot be used to widen a narrower provision. In any event, where Parliament has placed specific limits within a provision, these cannot be ignored on the ground that Parliament has cast a different provision more broadly.\n\nA fourth contextual consideration is the definition of “criminal organization” in s. 467.1(1) of the Criminal Code , R.S.C. 1985, c. C-46 . The Criminal Code definition of “criminal organization” expressly requires a financial or other material benefit: “criminal organization” means a group, however organized, that (a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-13", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 42–44", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "While “organized criminality” and “criminal organization” are not identical phrases, they are logically and linguistically related and, absent countervailing considerations, should be given a consistent interpretation.\n\nThe legislative history of s. 37(1)(b) of the IRPA and the Criminal Code ’s definition of “criminal organization” strongly support this conclusion. Both provisions were enacted in anticipation of Canada’s obligations under the United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209 (generally known, and referred to here, as the “Palermo Convention”). As explained below, the Protocol against the Smuggling of Migrants by Land, Sea and Air, 2241 U.N.T.S. 480 (“Smuggling Protocol”), is one of three protocols under this convention. (See relevant provisions in Appendix B.)\n\nThe Criminal Code definition of “criminal organization” was amended in 2001 by Bill C-24, An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts, S.C. 2001, c. 32. On second reading of the bill in the House of Commons, the Minister of Justice at the time, the Hon. Anne McLellan, explained that the new definition reflected Canada’s signature of the Palermo Convention (which was not then in force): House of Commons Debates, vol. 137, No. 046, 1st Sess., 37th Parl., April 23, 2001, at p. 2954. See also R. J. Currie and J. Rikhof, International & Transnational Criminal Law (2nd ed. 2013), at pp. 345-46.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-14", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 45–46", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Similarly, s. 37(1) (b) of the IRPA was enacted in 2001 to deal with organized criminality in people smuggling and related activities pursuant to Canada’s obligations under the Palermo Convention and the related Smuggling Protocol. As the Assistant Deputy Minister, Citizenship and Immigration, Joan Atkinson put it at the time, s. 37(1) introduced “new inadmissibility provisions specifically directed at that form of organized crime”: House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001 (online), at 10:40.\n\nThus the apparent similarity between the IRPA concept of “organized criminality” and the Criminal Code concept of “criminal organization” is no coincidence. Both provisions were enacted to give effect to the same international regime for the suppression of transnational crimes such as people smuggling. Section 37(1)(b) should be interpreted harmoniously with the Criminal Code ’s definition of “criminal organization” as involving a material, including financial, benefit. (3) The International Context of Section 37(1)(b) (a) International Law as Context: General Relevance", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-15", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "para 47", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court has previously explained that the values and principles of customary and conventional international law form part of the context in which Canadian laws are enacted: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53. This follows from the fact that to interpret a Canadian law in a way that conflicts with Canada’s international obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international law. The contextual significance of international law is all the more clear where the provision to be construed “has been enacted with a view towards implementing international obligations”: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1371. That is the case with the IRPA , the refugee protection aspects of which serve principally to discharge Canada’s obligations under the 1951 Convention relating to the Status of Refugees, 189 U.N.T.S. 150, and its 1967 Protocol relating to the Status of Refugees, 606 U.N.T.S. 267 (together the “Refugee Convention”), but also, as explained below, Canada’s obligations under the Smuggling Protocol.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-16", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "para 48", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "In keeping with the international context in which Canadian legislation is enacted, this Court has repeatedly endorsed and applied the interpretive presumption that legislation conforms with the state’s international obligations: see, e.g., Zingre v. The Queen, [1981] 2 S.C.R. 392, at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at paras. 128-31; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 39; United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, at para. 25; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 34; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, at para. 113. This interpretive presumption is not peculiar to Canada. It is a feature of legal interpretation around the world. See generally A. Nollkaemper, National Courts and the International Rule of Law (2011), at c. 7.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-17", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 49–50", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "These principles, derived from the case law, direct us to relevant international instruments at the context stage of statutory interpretation. Furthermore, two interpretive provisions from s. 3 of the IRPA make Parliament’s presumed intent to conform to Canada’s international obligations explicit. Section 3(2)(b) expressly identifies one of the statute’s objectives as “to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement”. Similarly, s. 3(3)(f) instructs courts to construe and apply the IRPA in a manner that “complies with international human rights instruments to which Canada is signatory” (see de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, at paras. 82-83 and 87). There can be no doubt that the Refugee Convention is such an instrument, building as it does on the right of persons to seek and to enjoy asylum from persecution in other countries as set out in art. 14 of the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948).\n\nI conclude that it is appropriate to consider the relevant international instruments in interpreting s. 37(1)(b): the Palermo Convention and its protocols, and the Refugee Convention. (b) The Palermo Convention and Its Protocols", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-18", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "para 51", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "In addition to the international context of Canadian legislation generally, and of the IRPA in particular, s. 37(1)(b) finds its origin in international law, namely the Palermo Convention and the related Smuggling Protocol. The Palermo Convention was opened for signature in December 2000, together with two supplementing protocols, the Smuggling Protocol and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2237 U.N.T.S. 319 (the “Human Trafficking Protocol”). (A third protocol, concerning the illicit manufacturing of and trafficking in firearms, was adopted later but has no bearing on these appeals.) A key distinction between the Smuggling Protocol and the Human Trafficking Protocol lies in the concepts of coercion and consent. The latter protocol defines human trafficking as involving threats or use of force, abduction, deception, fraud or other forms of coercion against the trafficked person. By contrast, the Smuggling Protocol applies to cases where the smuggler and the smuggled agree that the former will procure the latter’s illegal entry into a state, in consideration of a financial or other material benefit. While the lines between trafficking and smuggling may sometimes blur, the presence or absence of consent remains an organizing principle of the two Palermo Convention protocols.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-19", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 52–53", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 6(1)(a) of the Smuggling Protocol requires states parties to adopt measures to establish migrant smuggling as a criminal offence, defined as procuring illegal entry of a person into a state of which the person is not a national or a permanent resident, “in order to obtain, directly or indirectly, a financial or other material benefit”: art. 3(a). The term “financial or other material benefit” is also found in the definition of “organized criminal group” in art. 2(a) of the Palermo Convention.\n\nBoth the Palermo Convention and its two original protocols were drafted with a view to the need of states parties to meet their obligations under the earlier Refugee Convention. This is specifically reflected in art. 19(1) of the Smuggling Protocol, the “saving clause”, which provides as follows: 1. Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein. (See also art. 14(1) of the Human Trafficking Protocol.)", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-20", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 54–56", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA was enacted soon after the adoption of the Palermo regime, in the drafting of which Canada played an active role. This timing suggests that Parliament had these instruments in mind when it enacted s. 37(1)(b). The parliamentary record supports this inference. As Assistant Deputy Minister Atkinson said in explaining s. 37 before the House of Commons Standing Committee on Citizenship and Immigration: Clause 37 deals with organized criminality. I would point out paragraph 37(1)(b), which is new. That is organized criminality: (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. So those are new inadmissibility provisions specifically directed at that form of organized crime. (Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001 (online), at 10:40)\n\nSection 37(1)(b)’s express mention of the three activities of (a) people smuggling, (b) trafficking in persons, and (c) money laundering, indisputably refers to the Palermo Convention and its two protocols. Money laundering is addressed in the Palermo Convention itself, while its protocols target the other two activities.\n\nIn summary, it is clear that s. 37(1)(b) must be read against the backdrop of Canada’s commitment to combatting criminal activity related to people smuggling. (c) The Refugee Convention", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-21", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 57–59", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 31(1) of the Refugee Convention provides: 1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. The import of this prohibition for domestic admissibility provisions is clear. As A. T. Gallagher and F. David put it, “an individual cannot be denied refugee status — or, most important, the opportunity to make a claim for such status through fair assessment procedures — solely because of the way in which that person sought or secured entry into the country of destination”: The International Law of Migrant Smuggling (2014), at p. 165. Obstructed or delayed access to the refugee process is a “penalty” within the meaning of art. 31(1) of the Refugee Convention: ibid., at pp. 163-64.\n\nIt is undisputable that just as s. 37(1)(b) must be read against the backdrop of Canada’s international commitments to combat organized criminal people smuggling and related activities, it must also be read in a way that is consistent with the Refugee Convention.\n\nHaving introduced the relevant international instruments, I now turn to what light they shed on the interpretive issues arising from s. 37(1)(b) — first, whether s. 37(1)(b) requires activity directed at financial or other material benefit; and second, what conduct, more generally, is caught by s. 37(1)(b). (d) Financial or Other Material Benefit: Perspective From the International Instruments", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-22", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 60–61", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Smuggling Protocol defines migrant smuggling as the procurement of illegal entry “in order to obtain, directly or indirectly, a financial or other material benefit”. The purpose of including financial or other material benefit as part of the definition of migrant smuggling is explained in the interpretive notes to art. 6: The reference to “a financial or other material benefit” as an element of the offences set forth in paragraph 1 was included in order to emphasize that the intention was to include the activities of organized criminal groups acting for profit, but to exclude the activities of those who provided support to migrants for humanitarian reasons or on the basis of close family ties. It was not the intention of the protocol to criminalize the activities of family members or support groups such as religious or non-governmental organizations. (United Nations Office on Drugs and Crime, Travaux préparatoires of the negotiations for the elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols thereto (2006), at p. 489) As noted by Gallagher and David: “The relevant Interpretative Notes to the Protocol affirm that it was not the intention of the Protocol to criminalize the activities of family members or support groups such as religious or nongovernmental organizations” (p. 366). It thus “seems reasonably clear that certain benefits that may accrue from being involved in migrant smuggling, such as family reunification and safety, do not constitute ‘material’ benefits”: ibid.\n\nThe Refugee Convention supports the same conclusion.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-23", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 62–64", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 31(1) of the Refugee Convention prohibits states parties from penalizing refugees on account of their illegal entry. To interpret s. 37(1)(b) as omitting a financial or other benefit limitation would appear inconsistent with this rule.\n\nThe respondents contend that art. 31(1) of the Refugee Convention refers only to criminal penalties. This interpretation runs counter to the purpose of art. 31(1) and the weight of academic commentary: J. C. Hathaway, The Rights of Refugees Under International Law (2005), at pp. 409-12; Gallagher and David, at pp. 164-68; G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law (3rd ed. 2007), at p. 266. The generally accepted view is that denying a person access to the refugee claim process on account of his illegal entry, or for aiding others to enter illegally in their collective flight to safety, is a “penalty” within the meaning of art. 31(1). The law recognizes the reality that refugees often flee in groups and work together to enter a country illegally. Article 31(1) thus does not permit a state to deny refugee protection (or refugee determination procedures) to refugees solely because they have aided others to enter illegally in an unremunerated, collective flight to safety. Rather, it targets those who assist in obtaining illegal entry for financial or other material benefit.\n\nArticle 5 of the Palermo Convention provides further assistance in understanding the conduct targeted by s. 37(1)(b).", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-24", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 65–67", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Informed by the Palermo Convention, the phrase “in the context of transnational crime”, under s. 37(1) (b), of the IRPA captures the acts of (1) participating in the group’s actual criminal activities with knowledge the group has a criminal aim (art. 5(1)(a)(ii)a.); (2) participating in non-criminal acts of the group, with knowledge that the acts will further the group’s criminal aim (art. 5(1)(a)(ii)b.); or (3) organizing, abetting or counselling a serious crime involving the organized criminal group (art. 5(1)(b)).\n\nThis supports the view that acts committed by people who are not themselves members of criminal organizations, who do not act in knowing furtherance of a criminal aim of such organizations, or who do not organize, abet or counsel serious crimes involving such organizations, do not fall within s. 37(1)(b). (4) Harmonious Reading With the Intention of Parliament\n\nFinally, I come to the requirement that we interpret s. 37(1)(b) harmoniously with the intention of Parliament. In this case, Parliament’s intention is gleaned mainly from the considerations that have already been discussed — the words of the provision, the legislative scheme and the context. The question at this point is whether there is other evidence that may point to a different intention on the part of Parliament.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-25", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "para 68", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "If Parliament, in enacting s. 37(1)(b) in 2001, intended to erase the distinction between those who act for financial or material benefit and those who act for humanitarian purposes or give mutual assistance, one might expect some sign of this in the parliamentary record. But the record reveals no evidence that Parliament sought to ignore this distinction or to target conduct unconnected to transnational organized crime. Rather, the record supports the view that Parliament understood “people smuggling” in the sense that “migrant smuggling” is used in the Smuggling Protocol. There is nothing in the parliamentary record suggesting that Parliament sought to adopt a broader definition of people smuggling. Indeed, the Minister of the day expressly referred to the Palermo Convention and the Smuggling Protocol in her evidence on the new IRPA provisions before the Standing Committee on Citizenship and Immigration, without suggesting an intention to depart from the “financial or other material benefit” limitation (see Evidence, No. 2, 1st Sess., 37th Parl., March 1, 2001 (online), at 9:30 to 9:35).", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-26", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 69–70", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "In addressing s. 117 of what became the IRPA (considered in Appulonappa) before the Standing Committee on Citizenship and Immigration, Assistant Deputy Minister Atkinson testified that the bill did not seek to impose penalties on those who helped refugees come to Canada or those who engaged in smuggling for humanitarian reasons. Discretion (it was said) was conferred on the Attorney General under s. 117(4) as a safeguard to protect from prosecution those seeking to aid refugees on humanitarian grounds: Standing Committee on Citizenship and Immigration, Evidence, No. 9, 1st Sess., 37th Parl., April 5, 2001 (online), at 10:50; and Evidence, No. 27, 1st Sess., 37th Parl., May 17, 2001 (online), at 10:35 to 10:40. While s. 37(1)(b) was not directly addressed, those statements suggest that it was not Parliament’s intent to render refugees inadmissible under s. 37(1)(b) solely for providing mutual assistance to others in the course of their own illegal entry.\n\nTo adopt the interpretation of s. 37(1)(b) urged by the Ministers would lead to anomalous and unintended consequences.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-27", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "para 71", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is well established that Parliament should be presumed not to intend absurd results when it enacts legislation. Take, for example, the scenario proposed by B010 involving a family fleeing persecution, where the mother arranges to procure false travel documents, the father pays for the documents, and the daughter hides the documents as they flee their home (A.F., at para. 59). Upon arrival in Canada, they promptly disclose that their travel documents were false, and claim asylum. Without a financial or material benefit component, each family member has engaged in “people smuggling” and is inadmissible under s. 37(1)(b). As B010 phrases it, “Without the financial benefit requirement, it is not possible to differentiate the ‘smuggler’ from the ‘smuggled’” (ibid., at para. 60). The absurdity flows, in part, from the fact that, if each family member had procured, purchased, and concealed their own travel documents, without providing any mutual aid, it is undisputed that s. 37(1)(b) would not apply. Similarly, if a single person rather than a family arrived under the same circumstances, he or she would not be inadmissible. (5) Conclusion on Section 37(1)(b) as Applied to These Cases", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-28", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 72–73", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The wording of s. 37(1)(b), its statutory and international contexts, and external indications of the intention of Parliament all lead to the conclusion that this provision targets procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. To justify a finding of inadmissibility against the appellants on the grounds of people smuggling under s. 37(1)(b), the Ministers must establish before the Board that the appellants are people smugglers in this sense. The appellants can escape inadmissibility under s. 37(1)(b) if they merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety. C. The Defences of Duress and Necessity\n\nB306 argues that in the event he is found to fall within s. 37(1)(b), he should be able to raise the criminal law defences of duress and necessity. The Ministers conceded that the defences are available in principle. However, I prefer not to decide the issue, in the absence of full argument on how these defences would fit into the scheme of s. 37(1)(b) as construed in these reasons. This said, I agree with the Federal Court of Appeal that there is no substance to B306’s claim that the Board failed to consider B306’s defences of duress and necessity. D. The Constitutionality of Section 37(1)(b) Under Section 7 of the Charter", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-29", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 74–75", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellants argue in the alternative that s. 37(1) (b) of the IRPA unconstitutionally violates s. 7 of the Charter on the basis that s. 37(1)(b) is overbroad in catching migrants mutually aiding one another and humanitarian workers. As a result, they submit that s. 37(1)(b) is of no force or effect under s. 52(1) of the Constitution Act, 1982 , to the extent it catches these groups. I have concluded that the appellants are entitled to a new hearing on the basis of the proper interpretation of s. 37(1)(b). Therefore, I find it unnecessary to consider the appellants’ constitutional challenge.\n\nThe argument is of no assistance in any event, as s. 7 of the Charter is not engaged at the stage of determining admissibility to Canada under s. 37(1). This Court recently held in Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, that a determination of exclusion from refugee protection under the IRPA did not engage s. 7, because “even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place” (para. 67). It is at this subsequent pre-removal risk assessment stage of the IRPA ’s refugee protection process that s. 7 is typically engaged. The rationale from Febles, which concerned determinations of “exclusion” from refugee status, applies equally to determinations of “inadmissibility” to refugee status under the IRPA . V. Conclusion", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15647-30", - "doc_type": "caselaw", - "act_code": "2015 SCC 58", - "act_short": "B010", - "act_name": "B010 v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", - "marginal_note": "paras 76–78", - "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The tools of statutory interpretation — plain and grammatical meaning of the words; statutory and international contexts; and legislative intent — all point inexorably to the conclusion that s. 37(1)(b) applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. I conclude that a migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum-seekers in their collective flight to safety is not inadmissible under s. 37(1)(b).\n\nThe appellants were found inadmissible on an erroneous interpretation of s. 37(1)(b). They are entitled to have their admissibility reconsidered on the basis of the interpretation set out in these reasons. I would therefore allow their appeals and remit their cases for reconsideration by the Board. Mr. Hernandez, who was also found inadmissible under s. 36(1)(b), did not contest that finding in these proceedings, and this judgment does not disturb the Board’s determination of that matter.\n\nThe appeals are allowed with costs here and in the courts below.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 704", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" - }, - { - "id": "scc-15648-1", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 1–4", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "On October 17, 2009, a vessel called the Ocean Lady was apprehended off the west coast of Vancouver Island, in British Columbia. Seventy-six people, among them the appellants, were aboard. All were Tamils from Sri Lanka. They claimed to have fled Sri Lanka because their lives were endangered in the aftermath of the civil war in that country. They asked for refugee status in Canada. None had the required legal documentation.\n\nThe Crown claims that the four appellants — the captain and chief crew of the vessel — were the organizers of the venture. The Crown alleges that the majority of passengers each paid, or promised to pay, $30,000 to $40,000 for the voyage.\n\nThe appellants were charged under s. 117 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), which makes it an offence to “organize, induce, aid or abet” the coming into Canada of people in contravention of the IRPA . Consequences of conviction could include lengthy imprisonment and disqualification from consideration as a refugee.\n\nBefore their trial, the appellants challenged the constitutionality of s. 117 of the IRPA , on the ground that it infringes the right to life, liberty and security of the person enshrined in s. 7 of the Canadian Charter of Rights and Freedoms . The trial judge ruled that the provision was unconstitutional because it criminalized not only organized people smuggling, but helping close family members to come to Canada and humanitarian assistance to refugees. The British Columbia Court of Appeal reversed that decision, and found the provision to be constitutional.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-2", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 5–7", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "For the reasons that follow, I conclude that, insofar as s. 117 permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members, it is unconstitutional. II. Facts and Judicial History A. Facts\n\nCanadian authorities intercepted the freighter ship Ocean Lady offshore of Vancouver Island. They found 76 passengers aboard; all were Tamil asylum-seekers from Sri Lanka who had boarded the ship in Southeast Asia: 24 boarded the ship in Indonesia between June and August 2009, and 52 in Thailand in September 2009. None of the 76 migrants had the proper documentation to enter Canada. Most had agreed to pay a sum of between $30,000 and $40,000 to come to Canada. Typically, down payments of $5,000 were exacted prior to boarding, together with undertaking a debt of another $25,000 to $35,000 to be paid subsequent to arrival in Canada.\n\nThe four appellants, Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah, are alleged to have been the point persons for a transnational for-profit operation to smuggle undocumented migrants from Southeast Asia to Canada. They are said to have been responsible for organizing the asylum-seekers in Indonesia and Thailand prior to boarding the freighter, and serving as the chief crew of the ship on the voyage to Canada — Mr. Handasamy as captain, Mr. Thevarajah as chief engineer, and Mr. Kanagarajah and Mr. Appulonappa as key crew members.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-3", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 8–10", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellants were charged with the offence of “Organizing entry into Canada” found in s. 117 of the IRPA , which, at the relevant time, provided: 117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.\n\nThe IRPA was amended by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, ss. 41(1) and 41(4), whereby s. 117(1) was replaced by a new subsection and two subsections were added, which came into force on December 15, 2012. Section 117 as it was at the time of the alleged offences of the appellants is therefore no longer in force. The constitutionality of the current s. 117 is not before us. B. British Columbia Supreme Court, 2013 BCSC 31, 358 D.L.R. (4th) 666\n\nThe appellants brought an application before Silverman J. on a voir dire for a declaration that s. 117 of the IRPA is unconstitutionally overbroad. They did not contend that s. 117 is unconstitutional as it applies to the allegations against them, which are that they were part of a for-profit smuggling operation. However, they argued that s. 117 is unconstitutional because it may lead to the conviction of humanitarian workers or family members assisting asylum-seekers for altruistic reasons. They argued that convicting people in these categories exceeds the legislative intent of s. 117 and infringes the guarantee of liberty contrary to the principle of fundamental justice against overbreadth. This violation of the liberty guarantee in s. 7 of the Charter was not justified under s. 1 of the Charter , they submitted.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-4", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 11–12", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Crown accepted that the purpose of s. 117 was not to convict persons helping close family members come to Canada or persons providing legitimate humanitarian aid to people coming to Canada. However, it argued that this did not render s. 117 overbroad because s. 117(4) of the IRPA required that the Attorney General of Canada authorize prosecution, which would allow him to screen out people in these categories.\n\nSilverman J. concluded that, as the Crown contended, the purpose of s. 117 does not extend to prosecution of genuine humanitarian aid workers or family members. Because s. 117 permits the prosecution of such persons, it violates the s. 7 guarantee of liberty in a way that is overbroad, and hence not in accord with the principles of fundamental justice. Silverman J. held that s. 117 could not be interpreted or “read down” to make it Charter compliant and that the prior consent to prosecution required by s. 117(4) does not save s. 117 from being unconstitutionally overbroad. Nor, in his view, was the overbreadth justified under s. 1 of the Charter . Silverman J. therefore declared s. 117 of the IRPA to be inconsistent with s. 7 of the Charter and hence of no force or effect under s. 52 of the Constitution Act, 1982 . He ordered that the indictments of the appellants be quashed: 2013 BCSC 198. C. British Columbia Court of Appeal, 2014 BCCA 163, 355 B.C.A.C. 98", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-5", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 13–14", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "Before the Court of Appeal, the Crown changed its submission on the purpose of s. 117 of the IRPA . It submitted that s. 117 was enacted to prevent all organizing or assisting of unlawful entry of others into Canada, including assistance to close family members and humanitarian assistance. This, the Crown said, was required to further Canada’s goals of (1) controlling who enters its territory; (2) protecting the health, safety, and security of Canadians; (3) preserving the integrity and efficacy of Canada’s lawful immigration and refugee claims regimes; and (4) promoting international justice and cooperation with other states on matters of security.\n\nThe Court of Appeal accepted this revised submission as the purpose of s. 117 of the IRPA and on that basis held it to be constitutional. Neilson J.A. (Bennett and Hinkson JJ.A. concurring) concluded that Canadian laws criminalizing assistance to undocumented migrants have not historically allowed exceptions based on the offender’s motive or other characteristics. When the provision at issue was enacted in 1988, the question of whether humanitarian workers should be exempted received attention, but Parliament, concerned about “definitional difficulties” and “loopholes”, rejected creating an exception for these groups: para. 107. The purpose of s. 117 therefore aligned with its reach, and the provision was not overbroad.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-6", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 15–18", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The court added that the s. 117(4) requirement of the Attorney General’s consent to prosecute would guard against improper prosecutions on humanitarian grounds, family grounds or other grounds. If the Attorney General were to authorize prosecution of people assisting close family members or providing humanitarian assistance, the vice would not be overbreadth of s. 117(1), but the improper exercise of ministerial discretion under s. 117(4).\n\nIn the result, the Court of Appeal allowed the appeal, overturned the declaration of invalidity, set aside the acquittals and remitted the matter for trial. III. The Statutory Scheme\n\nThe IRPA (relevant provisions set out in Appendix A) is a complex statute dealing with the entry into Canada of foreign nationals through two processes — the immigration process and the refugee protection process. We are here concerned primarily with the refugee protection process. The IRPA aims to establish “fair and efficient [refugee] procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings”: s. 3(2)(e). Both goals are underpinned by Canada’s adhesion to international conventions and protocols, discussed more fully below.\n\nA significant concern for the integrity of Canada’s refugee protection system is the threat posed to it by the entry to Canada of unauthorized persons outside the lawful refugee regime. As part of combating this threat, the IRPA contains two provisions which sanction individuals for helping others to enter Canada without the documents required by border authorities.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-7", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 19–22", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 37(1) (b) of the IRPA renders a person inadmissible to Canada where the person has “engag[ed], in the context of transnational crime”, in people smuggling, and, in effect, prevents that person’s refugee claim from being determined on its merits. Section 117, under the marginal note “Organizing entry into Canada”, creates an offence. At the relevant time, it read: 117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.[1]\n\nSections 117(2) and 117(3) provide penalties of imprisonment and fines. At the time of the charges at issue in this case, s. 121(1) (c) of the IRPA under the marginal note “Aggravating factors”, stipulated that committing the offence for profit was a fact to be considered in sentencing under s. 117.[2]\n\nSubsection (4) provides a screening mechanism for instituting proceedings under s. 117 — prosecutions can proceed only with the consent of the Attorney General.\n\nIn summary, participating in the unauthorized entry of other people into Canada may have two consequences under the IRPA . First, it may result in prosecution and imprisonment and/or substantial fines upon conviction under s. 117. Second, it may render a person who engages in certain proscribed activities inadmissible to Canada under s. 37(1)(b). The first consequence — prosecution under s. 117 — is the subject of this appeal. The second consequence — inadmissibility to Canada — is the subject of the companion appeals in B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704. IV. The Issues", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-8", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 23–25", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Charter applies to foreign nationals entering Canada without the required documentation: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. Section 7 of the Charter provides: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. As a penal provision with potential sentences up to life imprisonment, it is clear that s. 117 of the IRPA threatens liberty and hence engages s. 7 of the Charter : Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 492.\n\nThe main issue before us is whether s. 117 of the IRPA threatens liberty, protected by s. 7 of the Charter , in a manner contrary to the principles of fundamental justice. If the answer is yes, a second question arises: Is the infringement justified under s. 1 of the Charter ? If the answer to this second question is no, a final question arises: What is the appropriate remedy for the constitutional infirmity in s. 117?\n\nThe appellants contend that s. 117 violates s. 7 of the Charter because the provision catches two categories of people outside its purpose — people who assist close family members to come to Canada and humanitarians who assist those fleeing persecution to come to Canada, in each case without required documents. The appellants say that s. 117 is therefore overbroad, contrary to the principles of fundamental justice. They also argue that s. 117 offends the principles of fundamental justice because its impact on liberty is grossly disproportionate to the conduct it targets, because it is unconstitutionally vague, and because it perpetuates inequality. V. Discussion A. Does Section 117 of the IRPA Violate Section 7 of the Charter ? (1) Overbreadth", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-9", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 26–28", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "A law is said to violate our basic values by being overbroad when “the law goes too far and interferes with some conduct that bears no connection to its objective”: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 101. As stated in Bedford, “[o]verbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others”: para. 113; see also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 85.\n\nThe first step in the overbreadth inquiry is to determine the object of the impugned law. The second step is to determine whether the law deprives individuals of life, liberty or security of the person in cases that do not further that object. To the extent the law does this, it deprives people of s. 7 rights in a manner that infringes the principles of fundamental justice.\n\nThe appellants argue that s. 117 is overbroad, not as it applies to the conduct alleged against them, but as it applies to other reasonably foreseeable situations. It is indeed established that a court may consider “reasonable hypotheticals” to determine whether a law is consistent with the Charter : see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-10", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 29–31", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first scenario the appellants ask us to consider is the situation of a person assisting a close family member to flee to Canada. The appellants cite as examples a mother carrying her small child, or the father of a household taking his family dependants with him aboard a boat. This scenario could also encompass cases of mutual assistance among unrelated asylum-seekers. Indeed, refugees mutually assisting one another in their collective flight to safety is not meaningfully different from family members assisting one another and, as showed by the companion case B010, is a reasonably foreseeable situation.\n\nThe second scenario advanced by the appellants is the case of a person who, for humanitarian motives, helps people to flee from persecution. History is replete with examples of people who have aided others to flee persecution for humanitarian reasons. Sometimes the person is acting as an individual. Sometimes the person is a member of an organization devoted to helping people flee lands where they face threats and persecution. Church groups may help undocumented people find refugee protection in Canada: House of Commons Debates, vol. VII, 2nd Sess., 33rd Parl., August 12, 1987, at p. 8002 (Hon. Gerry Weiner, Minister of State (Immigration)). Humanitarian aid to fleeing people is not merely hypothetical; it is a past and current reality. (a) The Object of Section 117 of the IRPA\n\nAs discussed, overbreadth analysis turns on whether the reach of the law exceeds its object. The first step is therefore to determine the object of s. 117.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-11", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 32–34", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Crown argues that the purpose of s. 117 is to catch all acts that in any way assist the entry of undocumented migrants. On this interpretation, s. 117 cannot be overbroad. The appellants, by contrast, submit that the offence of “human smuggling” has a narrower purpose than the Crown asserts, making it overbroad in catching all acts of assistance.\n\nAs with statutory interpretation, determining legislative purpose requires us to consider statements of legislative purpose together with the words of the provision, the legislative context, and other relevant factors: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 268-87; R. v. Chartrand, [1994] 2 S.C.R. 864, at pp. 879-82. Where legislation is enacted in the context of international commitments, international law may also be of assistance.\n\nFor the reasons that follow, I agree with the appellants that the purpose of s. 117 is narrower than that asserted by the Crown. The text of s. 117 is admittedly broad. However, a narrow purpose emerges from (1) the international instruments to which Canada has subscribed; (2) the role of s. 117 in relation to the statute as a whole, in particular s. 37(1); (3) the IRPA ’s statements of legislative purpose; (4) the evolution of s. 117; and (5) the parliamentary debates. Considering these indicia of purpose, it becomes evident that the true purpose of s. 117 is to combat people smuggling. The meaning of “people smuggling”, a term found in s. 37(1) (b) of the IRPA , is the subject of the companion case B010, and excludes mere humanitarian conduct, mutual assistance or aid to family members. I conclude that s. 117 violates the Charter by catching these categories of conduct outside the provision’s purpose. (i) The Text of the Provision", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-12", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "para 35", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the relevant time, the text of s. 117 read as follows: 117. (1) [Organizing entry into Canada] No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act. (2) [Penalties — fewer than 10 persons] A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable (a) on conviction on indictment (i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or (ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and (b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both. (3) [Penalty — 10 persons or more] A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both. (4) [No proceedings without consent] No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-13", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 36–37", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "All agree that the text of s. 117(1) is broad enough to catch assistance to close family members and humanitarian assistance. It may be argued that since Parliament used these words, that is what it intended. However, the doctrine of overbreadth recognizes that sometimes “the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective”: R. v. Heywood, [1994] 3 S.C.R. 761, at p. 792; Bedford, at para. 101; Carter, at para. 85. The potential for “failures of instrumental rationality”, in which a given law is not a rational means to achieve a legislative objective, requires courts to go further than the text alone, and ask whether other considerations suggest Parliament’s purpose was narrower: Bedford, at para. 107.\n\nBefore leaving the text, it may be noted that despite the broad wording of the subsection that provides the elements of the offence (s. 117(1)), other portions of the text of s. 117 support the view that Parliament’s purpose was not to criminalize family or humanitarian assistance. The marginal note of s. 117, “Organizing entry into Canada”, read with the subheading “Human Smuggling and Trafficking”, while not to be accorded great weight (see Sullivan, at pp. 465-68), suggests that the provision is aimed at activity in connection with the smuggling of persons in the context of organized crime, as contrasted with providing humanitarian assistance or aiding close family members to enter a country without the required documents.[3]", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-14", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 38–40", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "Sections 117(2) and 117(3) also support the view that Parliament’s intent was to catch smuggling activity in the context of organized crime, rather than humanitarian, mutual or family assistance. These subsections provide for significantly increased sanctions based on the number of persons brought in. This suggests a heightened focus on large-scale smuggling operations.\n\nFinally, the requirement in s. 117(4) that no prosecution occur without the Attorney General’s consent suggests that s. 117 was not intended to convict everyone who falls within s. 117(1)’s broad ambit, as discussed more fully below. (ii) Canada’s International Obligations\n\nAs a matter of statutory interpretation, legislation is presumed to comply with Canada’s international obligations, and courts should avoid interpretations that would violate those obligations. Courts must also interpret legislation in a way that reflects the values and principles of customary and conventional international law: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 34. Section 3 of the IRPA also requires that the IRPA be interpreted in a manner that complies with Canada’s international obligations, including “international human rights instruments to which Canada is signatory”: s. 3(3)(f); see also s. 3(2)(b). The relevant international instruments to which Canada has subscribed should therefore shed light on the parliamentary purpose behind s. 117 of the IRPA .", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-15", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 41–42", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The provisions of the IRPA relating to the fight against the assisting of unauthorized entry of persons to Canada respond to Canada’s international commitments related to these matters in the Convention relating to the Status of Refugees, 189 U.N.T.S. 150 (“Refugee Convention”), the United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209, the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2241 U.N.T.S. 480 (“Smuggling Protocol”), and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2237 U.N.T.S. 319.\n\nThe Refugee Convention reflects humanitarian concerns. It provides that states must not impose penalties for illegal entry on refugees who come directly from territories in which their lives or freedom are threatened and who are present on the territory of the foreign state without authorization, “provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”: art. 31(1).", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-16", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "para 43", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "Consistent with this, s. 133 of the IRPA provides that foreign nationals who enter Canada without documents cannot be charged with illegal entry or presence while their refugee claims are pending. As I explain in B010, art. 31(1) of the Refugee Convention seeks to provide immunity for genuine refugees who enter illegally in order to seek refuge. For that protection to be effective, the law must recognize that persons often seek refuge in groups and work together to enter a country illegally. To comply with art. 31(1), a state cannot impose a criminal sanction on refugees solely because they have aided others to enter illegally in their collective flight to safety.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-17", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "para 44", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Smuggling Protocol is concerned with stopping the organized crime of people smuggling. It seeks to prevent and combat the smuggling of migrants and to promote cooperation among states to this end, while protecting the rights of smuggled migrants: art. 2. Article 6(1)(a) requires signatory states to adopt measures to establish migrant smuggling as a criminal offence. The Smuggling Protocol includes as a minimum definition for this offence, procuring illegal entry of a person into a state of which the person is not a national or a permanent resident, “in order to obtain, directly or indirectly, a financial or other material benefit”: art. 3(a). As I explain in B010, the Smuggling Protocol was not directed at family members or humanitarians: paras. 60 and 68. Furthermore, while the Smuggling Protocol permits subscribing states to enact national laws criminalizing migration-related offences, it includes a “saving clause” that provides that nothing in the Smuggling Protocol “shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law”: art. 19(1). It would depart from the balance struck in the Smuggling Protocol to allow prosecution for mutual assistance among refugees, family support and reunification, and humanitarian aid. This suggests that the Crown’s broad interpretation of s. 117’s purpose is inconsistent with the Smuggling Protocol’s object of protecting the rights of smuggled migrants.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-18", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 45–47", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "In dealing with conflicting statements of the legislative objects of a statute, the way forward lies in an interpretation which harmonizes obligations in the international instruments to which Canada is a party in a way that avoids conflict and gives expression to each of the various commitments. I conclude that read together in this way, Canada’s international commitments support the view that the purpose of s. 117 is to permit the robust fight against people smuggling in the context of organized crime. This excludes criminalizing conduct that amounts solely to humanitarian, mutual or family aid. (iii) The Role of Section 117 Within the IRPA\n\nSection 117 of the IRPA must also be read harmoniously with other provisions of the statute.\n\nSection 117 of the IRPA falls under Part 3 of the IRPA , entitled “Enforcement”. Section 117 of the IRPA and the provisions that follow it fall under the subheading “Human Smuggling and Trafficking”. Section 118 creates the offence of human trafficking, leaving s. 117, as noted, to constitute the offence of human smuggling. The only other references in the IRPA to smuggling or trafficking are contained in s. 37(1)(b), which renders inadmissible to Canada a person who has engaged in smuggling or trafficking in persons.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-19", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 48–51", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "As explained in B010, the conduct captured by s. 37(1)(b) is that which is set out in the Smuggling Protocol. In that context, people smuggling only occurs for “financial or other material benefit” and “in the context of transnational crime”. Reading the inadmissibility and enforcement provisions of the IRPA harmoniously and as part of an integrated scheme therefore supports the view that the purpose of s. 117 is to penalize organizing or abetting illegal entry to Canada through acts knowingly connected to and furthering transnational organized crimes or criminal aims, to obtain, directly or indirectly, a financial or other material benefit. This excludes humanitarian, mutual or family assistance. (iv) Statements of Legislative Purpose\n\nThe first, “most direct and authoritative evidence” of the legislative purpose of a provision is found in statements of purpose in the legislation itself — whether at the beginning of a statute, in the section in which a provision is found, or in sections providing interpretive guidelines: Sullivan, at pp. 274-76.\n\nIn Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at paras. 29-30, this Court held that the Refugee Convention has the broad general aim of providing humanitarian refuge for those fleeing persecution while recognizing the need to protect states’ borders.\n\nAs discussed in B010, the object provisions of the IRPA establish that both of these broad goals are important to the IRPA as well. It follows that s. 117 should be interpreted in a balanced way that respects both the security concerns as well as the humanitarian aims of the IRPA . An interpretation of s. 117 that catches all acts of assistance to undocumented migrants arguably allows security concerns to trump the humanitarian aims of the IRPA .", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-20", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "para 52", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Crown’s view that the purpose of s. 117 is to catch all acts of assistance to undocumented migrants relies heavily on the fact that among the purposes of the IRPA is to control Canada’s borders to prevent migrants from entering the country illegally, for reasons of security, health and safety. To be sure, this is an important goal of the IRPA . It is reflected in the s. 3(2)(h) objective “to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals”: see also s. 3(1)(i). It is likewise evinced by the aim “to protect the health and safety of Canadians and to maintain the security of Canadian society”: s. 3(2)(g); see also s. 3(1)(h).", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-21", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 53–54", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "A concern with security is also reflected in the specific legislative objects of An Act to amend the Immigration Act and the Criminal Code in consequence thereof, R.S.C. 1985, c. 29 (4th Supp.), the statute which enacted what later became s. 117 of the IRPA (the “1988 amendments”): 1. The Immigration Act is amended by adding thereto, immediately after section 2 thereof, the following heading and section: Purposes of Amendments 2.1 . . . (a) to preserve for persons in genuine need of protection access to the procedures for determining refugee claims; (b) to control widespread abuse of the procedures for determining refugee claims, particularly in light of organized incidents involving large-scale introduction of persons into Canada to take advantage of those procedures; (c) to deter those who assist in the illegal entry of persons into Canada and thereby minimize the exploitation of and risks to persons seeking to come to Canada; and (d) to respond to security concerns, including the fulfilment of Canada’s obligations in respect of internationally protected persons.\n\nThe same statute, however, also recognized humanitarian commitments, including a stated objective “to preserve for persons in genuine need of protection access to the procedures for determining refugee claims” and concern for “exploitation” and risks to persons wishing to come to Canada: s. 1, adding ss. 2.1(a) and 2.1(c).", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-22", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 55–58", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA ’s general objects further illustrate the importance of its broad humanitarian aims. Section 3(2)(c) speaks of “Canada’s humanitarian ideals”. The stated objects include “saving lives and offering protection to the displaced and persecuted” and “safe haven to persons with a well-founded fear of persecution”: ss. 3(2)(a) and 3(2)(d). Similarly, the objectives include striving to comply with “international human rights instruments to which Canada is signatory”: s. 3(3)(f); see also s. 3(2)(b).\n\nThe IRPA also reveals a commitment to family, through stated objects of facilitating family reunification in Canada: s. 3(2)(f).\n\nIn sum, while the security goals of the IRPA and the amendment that became s. 117 are important, they do not supplant Canada’s commitment to humanitarian aid and family unity. Both broad aims must be respected. This is accomplished by interpreting s. 117 as targeting organized smuggling operations having a criminal dimension, thereby excluding humanitarian, mutual and family aid. Under the Crown’s interpretation of s. 117, a father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution. This is incompatible with the refugee protection objects of the IRPA and the amendment that became s. 117. (v) The Legislative Evolution of Section 117\n\nThe legislative history of a provision may assist in determining its purpose: Sullivan, at pp. 286-87.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-23", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 59–60", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "Canada has had laws criminalizing the assisting of undocumented migrants to enter the country since 1902. Early incarnations of the offence were focused on organizing illegal arrival by rail or ship, with little concern for the plight of the migrants, who were typically expelled: An Act to amend the Immigration Act, S.C. 1902, c. 14, s. 2; Immigration Act, R.S.C. 1906, c. 93, ss. 65 and 66.\n\nIn 1919, s. 12(4) of An Act to amend The Immigration Act, S.C. 1919, c. 25, made it an offence to transport into Canada, harbour or conceal the entry of prohibited immigrants. The provision was a summary conviction offence, with a maximum penalty of six months imprisonment and/or fines. Broadly similar offences were preserved in the 1952 and 1976 iterations of the Immigration Act.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-24", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "para 61", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "In 1988, “in light of organized incidents involving large-scale introduction of persons into Canada”, amendments introduced a new offence which, with minor changes, is the offence currently found in s. 117 of the IRPA : s. 1 of the 1988 amendments, adding s. 2.1(b). It criminalized third party assistance to undocumented migrants. In so doing, it established maximum penalties where the number of undocumented entrants was small: six months’ imprisonment and/or $2,000 fines on summary conviction, and five years’ imprisonment and/or $10,000 fines on indictment. By contrast, where the undocumented entrants numbered 10 or more, proceedings were exclusively by indictment, and the maximum penalty was 10 years’ imprisonment and/or fines up to $500,000: s. 9 of the 1988 amendments, adding ss. 94.1 and 94.2. Thus, at the inception of what would become s. 117, greater culpability already attached to large-scale breaches, reflecting greater organizational activity on the part of the accused or others with whom the accused acted in concert. The offence created in 1988 also included a new screening mechanism: no proceedings could be instituted under ss. 94.1 or 94.2 without the consent of the Attorney General (s. 9 of the 1988 amendments, adding s. 94.3).", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-25", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "para 62", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The current s. 117 was part of a new comprehensive statute dealing with immigration and refugee protection, the IRPA , enacted in 2001. The offence remained substantially the same as previously, preserving the differing penalties based on scale, and the charge-screening mechanism. However, maximum penalties were significantly increased, while another provision was added to guide sentencing under the offence. Section 121 provided that in determining the penalty to be imposed under s. 117, the court was to take into account (1) bodily harm or death to the migrant; (2) association with a criminal organization; (3) profit from the operation; and (4) harm to or degrading treatment of the migrants. These changes came on the heels of the adoption of the Smuggling Protocol, which obliged state parties to criminalize the smuggling of migrants done for financial or other material benefit and to adopt legislative measures to establish aggravating circumstances such as harm to and degrading treatment of migrants: arts. 6(1) and 6(3). The second factor in s. 121 reflected a more significant link between the offensive conduct and organized crime. The first and fourth factors recognized more serious crime. The third factor may be an indicator of either or both.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-26", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 63–64", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "From this brief survey of the historical evolution of prohibitions on assisting the entry to Canada of undocumented people, I draw the following conclusions: (a) the prohibitions have, for over a century, focused on smuggling activity tied to organizing and furthering the illegal entry, not aid merely incidental to it; (b) successive revisions to the provision have coupled increased penalties with more precise targeting of organized crime-related smuggling activity, and the 2001 revision in particular followed in the footsteps of key developments in international law; and (c) s. 117, from its inception in 1988 and as continued and revised by the IRPA in 2001, provided a filter to screen out assistance not associated with organized criminal smuggling, namely innocent humanitarian acts, mutual aid and assistance to family members. (vi) The Parliamentary Debates\n\nStatements made in the legislature leading up to the enactment of a provision may supply evidence of its purpose: Sullivan, at p. 277; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 37; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 25; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 45; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 17.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-27", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "para 65", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The parliamentary debates establish that the original enactment of the offence in 1988 was motivated by incidents of organized large-scale smuggling of undocumented migrants by sea. Concerns were expressed in the debates about protecting the health, safety and security of Canadians and Canadian society, the integrity and efficacy of Canada’s lawful immigration and refugee regimes, and Canada’s ability to control its borders and the domestic and international interests tied to them. Concerns were also expressed about the safety and protection of genuine refugees, and not subjecting humanitarian groups to prosecution. Then-Minister Benoît Bouchard summarized Parliament’s purpose as follows in the Committee meetings of August 25, 1987: We are going to put a stop to the large-scale trafficking of illegal migrants by smugglers. There has been much discussion about amending these sections of the bill. We have all pressed lawyers and legislative drafters to consider alternatives to the current wording. We looked at phrases such as religious group, profit, reward, smuggle and clandestine entry, but every possibility creates loopholes and undermines our ability to prosecute the unscrupulous. We cannot let such individuals escape sanction by adding phrases which create insurmountable problems of proof and create gaps through which the unscrupulous would march. (House of Commons, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-84, No. 9, 2nd Sess., 33rd Parl., at p. 24)", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-28", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "para 66", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "It thus emerges from the 1987 debates that the reason s. 117(1) of the IRPA permits prosecution of those providing humanitarian assistance to fleeing refugees or assistance to close family members is not because Parliament wanted to capture such persons, but because of a drafting dilemma — it was feared that a categorical approach to exceptions would inadequately respond to the multi-faceted and complex nature of real-life smuggling cases. Parliament agreed that those offering humanitarian assistance and mutual aid were not meant to be prosecuted under s. 117 of the IRPA . However, instead of legislatively exempting such people from potential criminal liability, it sought to screen them out at the prosecution stage by requiring the Attorney General’s consent to prosecute.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-29", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "para 67", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The debates on the enactment of the IRPA in 2001 echo these preoccupations. Again, members of Parliament expressed concerns that s. 117 might criminalize people who assist family members to come to Canada or people who provide humanitarian aid to asylum-seekers. The government’s response was that these fears were misplaced because they focused exclusively on s. 117(1) and overlooked s. 117(4) which was expected to prevent these and other unintended prosecutions. The following excerpts from the parliamentary debates summarize those discussions: Mr. John McCallum: . . . we heard a fair amount of testimony in our hearings from people doing humanitarian work, reverends and saintly people, if you will, and the last people in the world we would want to prosecute. Yet, if you read that literally, it looks like some of these people who are helping refugees could be prosecuted. Or if my sister is in a bad country and I help her, it looks like I can be prosecuted. How does that work? Mr. Daniel Therrien [General Counsel]: The protection against such prosecutions is in subclause 117(4), which provides that no prosecution under the smuggling provision can occur without the consent of the Attorney General . . . . . . . Ms. Joan Atkinson [Assistant Deputy Minister]: . . . Subclause 117(4) is what’s in the current act. . . . It is in place . . . in the current act, and as Daniel has said, there has been no prosecution of anyone who was involved in trying to help refugees come to Canada. That is the safeguard. All the circumstances will be reviewed by the Attorney General to put in humanitarian considerations without defining what that means [otherwise] you don’t have the flexibility you need . . .", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-30", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 67–69", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "to be able to consider all the individual circumstances in a case before any decision is taken to prosecute. (House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 27, 1st Sess., 37th Parl., May 17, 2001 (online), at 10:35)\n\nThese excerpts from the parliamentary debates make it clear that Parliament understood that s. 117(1) criminalized assistance to family members and humanitarian assistance, and was relying on ministerial discretion to prevent prosecution. General Counsel Therrien and Assistant Deputy Minister Atkinson did not deny that s. 117 caught these cases, but defended this overreach far beyond any reasonable definition of the targeted smuggling activity on the basis that the Attorney General’s permission under s. 117(4) would be an adequate “safeguard” against inappropriate prosecutions.\n\nIn sum, we may fairly infer the following from the debate surrounding the adoption of s. 117 of the IRPA : From the beginning, the government conceded that the words of s. 117(1) had been cast broadly enough to catch family and humanitarian assistance to undocumented migrants. At the same time, the government made it clear that s. 117 was not intended to catch persons aiding family members or providing humanitarian or mutual aid. The risk would be alleviated, or so the government asserted, by the requirement that the Attorney General authorize prosecutions under s. 117(4) of the IRPA . (vii) Conclusion on the Purpose of Section 117 of the IRPA", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-31", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 70–71", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The foregoing considerations establish that the purpose of s. 117 is to criminalize the smuggling of people into Canada in the context of organized crime, and does not extend to permitting prosecution for simply assisting family or providing humanitarian or mutual aid to undocumented entrants to Canada. A broad punitive goal that would prosecute persons with no connection to and no furtherance of organized crime is not consistent with Parliament���s purpose as evinced by the text of s. 117 read together with Canada’s international commitments, s. 117’s role within the IRPA , the IRPA ’s objects, the history of s. 117, and the parliamentary debates. (b) The Scope of Section 117 of the IRPA\n\nI now turn to the scope of s. 117 of the IRPA to see whether it “goes too far and interferes with some conduct that bears no connection to its objective”: Bedford, at para. 101.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-32", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 72–73", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The scope of s. 117(1) is plain. The provision admits of no ambiguity. Parliament itself understood when it enacted s. 117 that the provision’s reach exceeded its purpose by catching those who provide humanitarian, mutual and family assistance to asylum-seekers coming to Canada, but argued that this overbreadth was not a problem because the Attorney General would not permit the prosecution of such people. We cannot avoid the overbreadth problem by interpreting s. 117(1) as not permitting prosecution of persons providing humanitarian, mutual or family assistance. Such an interpretation would require the Court to ignore the ordinary meaning of the words of s. 117(1), which unambiguously make it an offence to “organize, induce, aid or abet” the undocumented entry. To adopt this suggestion would violate the rule of statutory interpretation that the meaning of the words of the provision should be read in their “grammatical and ordinary sense”: Sullivan, at p. 28. It would also require us to ignore statements from the legislative debate record suggesting Parliament knew in advance that the provision was overbroad.\n\nI conclude that s. 117(1) appears to criminalize some conduct that bears no relation to its objective, raising the spectre that s. 117 as a whole is overbroad. The remaining question is whether the requirement under s. 117(4) that the Attorney General authorize prosecution saves s. 117 from the charge or overbreadth by effectively narrowing the scope of s. 117(1).", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-33", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "para 74", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, s. 117(4) does not cure the overbreadth problem created by s. 117(1). Ministerial discretion, whether conscientiously exercised or not, does not negate the fact that s. 117(1) criminalizes conduct beyond Parliament’s object, and that people whom Parliament did not intend to prosecute are therefore at risk of prosecution, conviction and imprisonment. So long as the provision is on the books, and so long as it is not impossible that the Attorney General could consent to prosecute, a person who assists a family member or who provides mutual or humanitarian assistance to an asylum-seeker entering Canada faces a possibility of imprisonment. If the Attorney General were to authorize prosecution of such an individual, despite s. 117’s limited purpose, nothing remains in the provision to prevent conviction and imprisonment. This possibility alone engages s. 7 of the Charter . Further, as this Court unanimously noted in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 17, per Moldaver J., “prosecutorial discretion provides no answer to the breach of a constitutional duty”. See also Nur.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-34", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "para 75", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "Implicit in the Court of Appeal’s position is that the problem of humanitarian workers or family members prosecuted under s. 117 of the IRPA is a problem of administrative law, and that if a constitutional attack is to be made, it should be made against improper exercise of the Attorney General’s duty under s. 117(4) not to prosecute such persons. I cannot agree. As noted, although the purpose of s. 117 of the IRPA was not to capture such persons, nothing in the provision actually enacted disallows it. As a result, an individual charged with an offence under s. 117 would have difficulty challenging the decision. Further, judicial review of such discretion is not currently available, and there are good reasons why it may not be desirable. As the Court observed in Anderson, judicial oversight of Crown decisions whether to prosecute puts at risk the discrete roles of different actors in our adversarial system: There has been a long-standing and deeply engrained reluctance to permit routine judicial review of the exercise of [prosecutorial] discretion. . . . The imposition of a sweeping duty that opens up for routine judicial review all of the aforementioned decisions is contrary to our constitutional traditions. [para. 32]", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-35", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 76–78", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "It may also be noted that judicial review of the Attorney General’s decision to authorize prosecution under s. 117(4) may have undesirable consequences for other federal statutes in which a similar clause is present: see e.g. Freezing Assets of Corrupt Foreign Officials Act , S.C. 2011, c. 10 ; Foreign Extraterritorial Measures Act , R.S.C. 1985, c. F-29 ; Special Economic Measures Act , S.C. 1992, c. 17 ; Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 ; Geneva Conventions Act , R.S.C. 1985, c. G-3 . At this point, it suffices to note that judicial review does not answer the constitutional non-conformity of s. 117(1).\n\nI conclude that s. 117 of the IRPA is overbroad. The remaining issue is whether this overbreadth is justified under s. 1 of the Charter as a reasonable measure in a free and democratic society. (2) Gross Disproportionality, Vagueness and Equality\n\nIn addition to the overbreadth claim, some of the appellants assert that s. 117 offends s. 7 by depriving persons of liberty in a manner that violates the principles of fundamental justice against gross disproportionality and vagueness. They also claim that equal treatment under the law is a principle of fundamental justice within the meaning of s. 7, and that s. 117 violates it. In view of my conclusion that s. 117 is overbroad, I find it unnecessary to consider these arguments. B. Is the Inconsistency With Section 7 Justified Under Section 1 of the Charter ?", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-36", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 79–81", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The test to determine whether infringement of a right may be constitutionally justified under s. 1 of the Charter was set out in R. v. Oakes, [1986] 1 S.C.R. 103. The first step of the s. 1 analysis asks whether the Crown has demonstrated a pressing and substantial objective: Oakes, at pp. 138-39. The broad purpose of s. 117 of the IRPA is to combat organized crime-related people smuggling, without criminalizing family assistance, mutual aid or humanitarian aid to asylum-seekers coming to Canada. This objective is clearly pressing and substantial.\n\nThe second step of the s. 1 analysis asks whether the legislative objective is rationally connected to the limit the law imposes on the right at issue. Not all applications of s. 117 are rationally connected to the legislative object; notably, s. 117 of the IRPA , as discussed, catches mutual and family as well as humanitarian aid which I earlier concluded was not Parliament’s object to criminalize. However, since other applications of s. 117 are rationally connected to the legislative object, this suffices to satisfy the rational connection stage of the analysis: Heywood, at p. 803. A rational connection, not a complete rational correspondence, is all this branch of Oakes requires.\n\nThe third step of the s. 1 analysis asks whether the offending law is tailored to its objective: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. Evidently, where a law goes too far, it is a challenge to satisfy minimal impairment. In Heywood, Cory J. concluded (at p. 803) that “for the same reasons that [the law] is overly broad, it fails the minimal impairment branch of the s. 1 analysis”. The record here shows why that will not always necessarily be the case.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-37", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 82–84", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Crown’s position appears to be that even though the provision is overbroad, it is nevertheless minimally impairing, because although imperfect, there was no better alternative. As discussed, the government recognized in advance that the provision would catch conduct it did not intend to criminalize. However, Parliament nevertheless enacted an overbroad provision because it was concerned that wording exempting this conduct would create unacceptable loopholes. Section 1 of the Charter does not allow rights to be limited on the basis of bare claims, but requires the Crown to provide a demonstrable justification for inconsistencies with Charter rights: Oakes, at pp. 136-37. The Crown has not satisfied its burden under s. 1. VI. Remedy\n\nSection 52(1) of the Constitution Act, 1982 provides: 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. It follows that s. 117 is of no force or effect to the extent of its inconsistency with the Charter .\n\nThe extent of the inconsistency that has been proven is the overbreadth of s. 117 in relation to three categories of conduct: (1) humanitarian aid to undocumented entrants, (2) mutual aid amongst asylum-seekers, and (3) assistance to family entering without the required documents.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-15648-38", - "doc_type": "caselaw", - "act_code": "2015 SCC 59", - "act_short": "Appulonappa", - "act_name": "R. v. Appulonappa", - "section": "", - "citation": "R. v. Appulonappa, 2015 SCC 59", - "marginal_note": "paras 85–86", - "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellants ask the Court to strike s. 117 down in its entirety. Section 117, as it was at the time of the alleged offences, has been replaced. In the particular circumstances of this case, I conclude that the preferable remedy is to read down s. 117 as not applicable to persons who give humanitarian, mutual or family assistance. This remedy reconciles the former s. 117 with the requirements of the Charter while leaving the prohibition on human smuggling for the relevant period in place. This remedy is consistent with the guidance this Court gave in Schachter v. Canada, [1992] 2 S.C.R. 679. VII. Conclusion\n\nI would allow the appeals and read down s. 117 of the IRPA , as it was at the time of the alleged offences, as not applying to persons providing humanitarian aid to asylum-seekers or to asylum-seekers who provide each other mutual aid (including aid to family members), to bring it in conformity with the Charter . The charges are remitted for trial on this basis.", - "current_to": "2015-11-27", - "last_amended": "", - "history": "[2015] 3 SCR 754", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" - }, - { - "id": "scc-14419-1", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 1–3", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The issue in this case is whether Luis Alberto Hernandez Febles is ineligible for refugee protection because of crimes committed before he came to Canada. Mr. Febles was admitted to the United States as a refugee from Cuba. While living in the United States, he was convicted and served time in prison for two assaults with a deadly weapon — in the first case, he struck a roommate on the head with a hammer, and in the second, he threatened to kill a roommate’s girlfriend at knifepoint. The U.S. revoked his refugee status and issued a removal warrant, which is still outstanding.\n\nAfter his refugee status in the U.S. was revoked, Mr. Febles fled to Canada, entering illegally. He now claims refugee protection in Canada. The question is whether Article 1F(b) (the “serious criminality” exclusion) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”), incorporated in Canada by s. 98 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), bars him from refugee protection because of the crimes he committed in the past.\n\nEssentially, different interpretations of Article 1F(b) of the Refugee Convention are in contention. The Minister of Citizenship and Immigration (“Minister”) says that the Article 1F(b) serious criminality exclusion is triggered whenever the refugee claimant has committed a serious non-political crime before coming to Canada. It is not confined to fugitives from justice. Nor are post-crime events, like rehabilitation or expiation, relevant, in the Minister’s view. The only question is whether the claimant committed a serious non-political crime before seeking refugee protection in Canada.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-2", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 4–6", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Febles and the United Nations High Commissioner for Refugees (“UNHCR”) advocate narrower interpretations of Article 1F(b). Mr. Febles argues that the exclusion in Article 1F(b) is confined to fugitives from justice (which Mr. Febles, having served his sentences, is not). The UNHCR (with whom Mr. Febles agrees) argues that the question is whether the refugee claimant is “deserving” of refugee protection at the time of the application, which requires consideration not only of the seriousness of the offence itself, but of how long ago the offence was committed, the conduct of the claimant since the commission of the offence, whether the claimant has expressed regret or renounced criminal activities, and whether the claimant poses a threat to the security of Canada at the present time.\n\nIn a nutshell, the Minister says that serious criminality under Article 1F(b) is simply a matter of looking at the seriousness of the crime when it was committed, while Mr. Febles and the UNHCR say it requires consideration of other matters — whether the claimant is a fugitive and/or his current situation, including rehabilitation, expiation and current dangerousness.\n\nFor the reasons that follow, I agree with the conclusion of the Immigration and Refugee Board (“Board”), upheld in the courts below, that only factors related to the commission of the criminal offences can be considered, and whether those offences were serious within the meaning of Article 1F(b). On this interpretation of Article 1F(b), Mr. Febles does not qualify for refugee protection because of the serious crimes he committed in the U.S. before seeking admission to Canada as a refugee. II. The Statutory Scheme", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-3", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 7–9", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Refugee protection claims in Canada are adjudicated by the Board under the IRPA . Three procedures under the IRPA are relevant to the present appeal.\n\nThe first procedure (ss. 100 to 102 of the IRPA ) determines whether a claim for refugee protection is eligible for referral to the Board. At the time of Mr. Febles’ application, ss. 101(1)(f) and 101(2)(b) provided that a claim was ineligible to be referred to the Board if the claimant had been convicted of an offence outside Canada, where the same offence in Canada is punishable by a maximum term of imprisonment of at least ten years, and the claimant represented a danger to the public in the Minister’s opinion. This procedure did not bar Mr. Febles’ claim for refugee protection because the Minister did not file an opinion of dangerousness.\n\nThe second procedure (ss. 95 to 98 of the IRPA ) determines whether a claimant is entitled to refugee protection. Section 98 — the provision at issue here — requires the Board to reject a refugee protection claim by any person referred to in Articles 1E or 1F of the Refugee Convention. Article 1F(b) of the Refugee Convention provides that a person with respect to whom there are serious reasons for considering that “he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee” is excluded from the protection of the Refugee Convention. Interpretation of the meaning of that article is the primary issue in this case.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-4", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 10–11", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, even where a refugee protection claim is rejected by application of s. 98 and a removal order is issued, a claimant may still apply to the Minister for protection against a removal order. In determining whether to stay the removal order, the Minister must balance any danger to the public in Canada against the risk that a claimant would face death, torture or cruel and unusual treatment or punishment if removed from Canada to the place designated in the removal order (ss. 97 , 112 , 113 (d)(i) and 114(1) (b) of the IRPA ). III. Analysis A. Interpretation of a Canadian Statute That Incorporates an International Treaty\n\nParliament has incorporated Articles 1E and 1F of the Refugee Convention into s. 98 of the IRPA . Interpretation of an international treaty that has been directly incorporated into Canadian law is governed by Articles 31 and 32 of the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (“Vienna Convention”): Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paras. 51-52; Thomson v. Thomson, [1994] 3 S.C.R. 551, at pp. 577-78. It follows that the meaning of the incorporated Articles of the Refugee Convention must be determined in accordance with the Vienna Convention.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-5", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 12", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Articles 31 and 32 of the Vienna Convention set out the principles of treaty interpretation which are similar to general principles of statutory interpretation: Article 31. General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-6", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 12–14", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable. B. The Scope of Article 1F(b) of the Refugee Convention\n\nArticle 1F(b) excludes any person from refugee protection “with respect to whom there are serious reasons for considering that . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”.\n\nDespite its facial clarity, the meaning of the phrase “has committed a serious non-political crime” is the subject of debate by courts and academic writers. While there are many variations of these debates, the main issue in the present case is whether “has committed a serious . . . crime” is confined to matters relating to the crime committed, or should be read as also referring to matters or events after the commission of the crime, such as whether the claimant is a fugitive from justice or is unmeritorious or dangerous at the time of the application for refugee protection. If Article 1F(b) is read as including consideration of matters occurring after the commission of the crime, people who have committed a serious crime in the past may nevertheless qualify as refugees because they have served their sentence or because of redeeming conduct subsequent to the crime.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-7", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 15–16", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 31(1) of the Vienna Convention states how interpretation of the Refugee Convention should be approached — by considering: (1) the “ordinary meaning” of its terms; (2) the context; and (3) the object and purpose of the Refugee Convention. For the reasons that follow, these considerations, as well as the Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees (1989), vol. III (“Travaux préparatoires”) and the jurisprudence, lead me to conclude that the phrase “has committed a serious . . . crime” refers to the crime at the time it was committed. Article 1F(b), in excluding from refugee protection people who have committed serious crimes in the past, does not exempt from this exclusion persons who are not fugitives from justice, or because of their rehabilitation, expiation or non-dangerousness at the time they claim refugee protection. (1) The Ordinary Meaning of Article 1F(b)\n\nThe point of departure for interpreting a provision of a treaty is the plain meaning of the text. As the House of Lords put it in Januzi v. Secretary of State for the Home Department, [2006] UKHL 5, [2006] 2 A.C. 426, at para. 4: “. . . the starting point of the construction exercise must be the text of the Convention itself . . ., because it expresses what the parties to it have agreed. The parties to an international convention are not to be treated as having agreed something they did not agree, unless it is clear by necessary implication from the text . . .”.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-8", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 17–19", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The ordinary meaning of the terms used in Article 1F(b) — “has committed a serious . . . crime outside the country of refuge prior to his admission to that country” — refers only to the crime at the time it was committed. The words do not refer to anything subsequent to the commission of the crime. There is nothing in the text of the provision suggesting that it only applies to fugitives, or that factors such as current lack of dangerousness or post-crime expiation or rehabilitation are to be considered or balanced against the seriousness of the crime.\n\nThe mandatory wording of the Article (“shall not apply”) chosen by the parties to the Refugee Convention unequivocally supports the view that all a subscribing country can consider in determining whether a claimant is excluded under Article 1F(b) is whether the claimant committed a serious crime outside the country of refuge prior to applying for refugee status there. Nothing in the words used suggests that the parties to the Refugee Convention intended subsequent considerations, like rehabilitation, expiation and actual dangerousness, to be taken into account. (2) The Context\n\nThe second interpretive consideration is the context. The immediate context of Article 1F(b) is Article 1F as a whole. Article 1F is comprised of three provisions, each of which excludes certain classes of persons from the Refugee Convention’s protection. Article 1F(a) excludes anyone who has “committed a crime against peace, a war crime, or a crime against humanity”. Article 1F(c) excludes anyone “guilty of acts contrary to the purposes and principles of the United Nations”.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-9", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 20–21", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Febles argues that this context suggests that Article 1F(b) is limited to fugitives. He appears to concede that Articles 1F(a) and 1F(c) are not themselves limited to fugitives, and that they operate to exclude all persons who have committed the acts listed in those provisions. Nevertheless, he argues that limiting Article 1F(b) to fugitives would not be incongruous. He submits that, unlike Article 1F(b), Articles 1F(a) and 1F(c) are designed to prevent people who are themselves persecutors from seeking protection from persecution, and that it would undermine the Refugee Convention’s viability if persecutors who create refugees could seek refugee protection. Persons who have committed serious crimes under Article 1F(b) are in a different situation, Mr. Febles argues. It would not undermine the Refugee Convention’s viability to allow non-fugitives who have already served sentences for standard crimes to seek refugee protection. On this basis, he invites this Court to confine Article 1F(b) to fugitives from justice.\n\nAgainst this, the Minister argues that the word “committed” should be given the same meaning in Articles 1F(a) and 1F(b): these provisions apply to anyone who has ever committed the offences, not only to fugitives or some other subset of those persons who have in fact committed the described offences.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-10", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 22–23", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "I agree. I cannot accept Mr. Febles’ argument that Articles 1F(a) and 1F(c) support the view that the exclusion from refugee protection under Article 1F(b) is confined to fugitives. There is nothing in the wording of these provisions or in the jurisprudence to support this contention. (See Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, at paras. 38 and 101, and Pushpanathan, at paras. 65-66 and 70 where the scope of these articles is discussed.) While Article 1F(c) uses the word “guilty”, Articles 1F(a) and 1F(b) both use the word “committed”.\n\nThe immediate context therefore supports the Minister’s interpretation. It would be anomalous if the word “committed” were ascribed different meanings in Articles 1F(a) and 1F(b) and the use of consistent language in these two articles was meant to evince an intention on the part of the drafters that they be applied inconsistently. As nobody has suggested that Article 1F(a) is confined to fugitives, it follows that Article 1F(b) would similarly not be restricted to fugitives.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-11", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 24–25", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Febles also says that Article 33(2) of the Refugee Convention supports the view that Article 1F(b) is confined to fugitives. Article 33(2) allows a host country to expel a refugee who has been “convicted by a final judgment of a particularly serious crime” and “constitutes a danger to the community of that country”. As far as Refugee Convention provisions go, Article 1F(b) only applies to crimes committed outside the country of refuge, whereas a refugee who commits a crime in the country of refuge can only be expelled under Article 33(2). Mr. Febles argues that this results in an absurdity. Why should someone who has served his sentence for a crime committed outside the country of refuge be automatically disentitled to refugee protection, when someone who commits a serious crime inside the country of refuge is allowed to retain refugee protection absent a danger to the public? This apparent absurdity disappears, Mr. Febles says, if Article 1F(b) is read as being restricted to fugitives.\n\nAgain, the argument fails to persuade. Article 33(2) is an exception to the Article 33(1) principle of non-refoulement of persons whose need for protection has been recognized (or not yet adjudicated). That is why the drafters used different language in Article 33(2) than they did in Article 1F(b): Article 33(2) allows persons to nevertheless be removed in the exceptional circumstances it describes, including in the event of particularly serious crimes, and “danger to the community”.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-12", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 26–27", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "That the Refugee Convention drafters intended that persons who commit crimes in the country of refuge be treated differently than those who commit crimes outside the country of refuge prior to claiming refugee protection makes sense. When a person commits a crime inside the country of refuge, the country of refuge is called to rely on its own sovereign legal system, rather than on an international treaty. In Canada’s case, it has done so by enacting a parallel and virtually identical provision regarding the effect of commission of a crime: s. 101(2) (a) of the IRPA specifies that a refugee protection claim cannot be made in the event “of a conviction in Canada [where] the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years”. Therefore, the discrepancy and resultant absurdity contended by Mr. Febles do not exist. In any event, different concerns arise when a country is asked to take in claimants who have committed crimes abroad, and the context provided by Article 33(2) of the Refugee Convention does not aid in the interpretive task at hand. (3) The Object and Purpose of the Refugee Convention (a) The Refugee Convention as a Whole\n\nThe purposes of the Refugee Convention include the international community’s “profound concern for refugees” and commitment to “assure refugees the widest possible exercise of . . . fundamental rights and freedoms”: see Ezokola, at para. 32, and Pushpanathan, at para. 57. While Article 1F(b) has a more specific exclusionary purpose, that purpose must be consistent with the broader protective aims of the Refugee Convention.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-13", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 28–30", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Febles argues that broad construction of exclusion provisions risks subverting the Refugee Convention’s humanitarian aims — courts should accordingly construe exclusion provisions as narrowly as is possible while still preserving the viability of the Refugee Convention.\n\nThe problem with this approach is that it risks upsetting the balance between humane treatment of victims of oppression and the other interests of signatory countries, which they did not renounce simply by together making certain provisions to aid victims of oppression. The Refugee Convention is not itself an abstract principle, but an agreement among sovereign states in certain specified terms, negotiated by them in consideration of the entirety of their interests. In R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport, [2004] UKHL 55, [2005] 2 A.C. 1, the U.K. House of Lords stated that the Refugee Convention “represent[s] a compromise between competing interests, in this case between the need to ensure humane treatment of the victims of oppression on the one hand and the wish of sovereign states to maintain control over those seeking entry to their territory on the other” (para. 15).\n\nI agree with this statement of the Refugee Convention’s twin purposes. While exclusion clauses should not be enlarged in a manner inconsistent with the Refugee Convention’s broad humanitarian aims, neither should overly narrow interpretations be adopted which ignore the contracting states’ need to control who enters their territory. Nor do a treaty’s broad purposes alter the fact that the purpose of an exclusion clause is to exclude. In short, broad purposes do not invite interpretations of exclusion clauses unsupported by the text.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-14", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 31–33", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "For these reasons, I conclude that consideration of the purposes of the Refugee Convention as a whole do not support Mr. Febles’ argument that Article 1F(b) is confined to fugitives. (b) Article 1F(b)\n\nThis brings me to the purpose of Article 1F(b) itself. Mr. Febles argues that the main rationale for Article 1F(b) is the exclusion of fugitives (although he allows for the possibility that Article 1F(b) may apply to non-fugitives in certain rare circumstances where the crimes at issue are especially heinous and contribute to the creation of refugees). It follows, he says, that since Article 1F(b) is directed at preventing fugitives from evading justice, it should generally have no application to persons who have already served their sentences for prior crimes. Mr. Febles relies on obiter dicta of this Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, and Pushpanathan that Article 1F(b) is directed at the exclusion of fugitives.\n\nThe Minister counters that the main rationale for Article 1F(b) is the exclusion of serious criminals because persons who have committed serious offences are by definition undeserving of refugee protection, supported by a secondary rationale of protection of the host society. By the Minister’s interpretation, determination of a crime’s seriousness requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction, but does not include post-offence considerations. A person who commits a serious non-political crime is forever barred from claiming refugee protection. This interpretation was adopted by the courts below, and was recently endorsed by the European Court of Justice.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-15", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 34", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The UNHCR argues that Article 1F(b) has two purposes — exclusion of fugitives and exclusion of claimants undeserving of refugee protection at the time it is claimed. If a person has committed a crime within the scope of Article 1F(b), but has since served a sentence commensurate with that criminal conduct or has been otherwise rehabilitated, the decision maker on the refugee application must in each case determine whether such a person is deserving of refugee protection at that time, having regard to: the passage of time since the commission of the offence; the seriousness of the offence (and whether it can be characterized as “truly heinous”); the age at which the person committed the crime; the conduct of the individual since then; whether the individual has expressed regret or renounced criminal activities; and whether the individual poses a threat to the community or security of the receiving state. Justice Abella similarly suggests that for all but “very” serious crimes, expiation and rehabilitation must be considered (para. 74).", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-16", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 35", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "I cannot accept the arguments of Mr. Febles and the UNHCR on the purposes of Article 1F(b). I conclude that Article 1F(b) serves one main purpose — to exclude persons who have committed a serious crime. This exclusion is central to the balance the Refugee Convention strikes between helping victims of oppression by allowing them to start new lives in other countries and protecting the interests of receiving countries. Article 1F(b) is not directed solely at fugitives and neither is it directed solely at some subset of serious criminals who are undeserving at the time of the refugee application. Rather, in excluding all claimants who have committed serious non-political crimes, Article 1F(b) expresses the contracting states’ agreement that such persons by definition would be undeserving of refugee protection by reason of their serious criminality.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-17", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 36–37", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Excluding people who have committed serious crimes may support a number of subsidiary rationales — it may prevent people fleeing from justice; it may prevent dangerous and particularly undeserving people from entering the host country. However, Article 1F(b) cannot be confined to any of these subsidiary purposes. Excluding people who have committed crimes in other countries prior to seeking refugee protection may serve other state interests. It may help preserve the integrity and legitimacy of the refugee protection system, and, hence, the necessary public support for its viability. It may deter states from exporting criminals by pardoning them or imposing disproportionately lenient sentences while supporting their departure elsewhere as refugees. Finally, it may allow states to reduce the danger to their society from all serious criminality cases taken together, given the difficult task and potential for error when attempting to determine whether criminals from abroad (on whom they have more limited sources of information than on domestic criminals) are no longer dangerous. Whatever rationales for Article 1F(b) may or may not exist, its purpose is clear in excluding persons from protection who previously committed serious crimes abroad. (4) The Travaux Préparatoires\n\nBesides the arguments already addressed, Mr. Febles argues that the Travaux préparatoires to the Refugee Convention (the working documents preceding the Refugee Convention’s adoption) support his view that Article 1F(b) is confined to fugitives. Acknowledging that the Travaux préparatoires “do not provide any ‘hard answers’”, he nonetheless says that they generally support this inference.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-18", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 38–40", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "As discussed, Article 31(1) of the Vienna Convention provides for interpretation of treaty provisions in accordance with the ordinary meaning of the terms in their context and in light of the treaty’s object and purpose. Article 32 only allows for recourse to “supplementary means of interpretation” — including the Travaux préparatoires — in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable.\n\nThese conditions for use of the Travaux préparatoires are not present in this case. With great respect to Justice Abella’s contrary view, the meaning of Article 1F(b) is clear, and admits of no ambiguity, obscurity or absurd or unreasonable result. Therefore, the Travaux préparatoires should not be considered.\n\nIn any event, the Travaux préparatoires support the Minister’s interpretation rather than Mr. Febles’ reading of Article 1F(b). In the case B (Area of Freedom, Security and Justice) (2008), BVerwG 10 C 48.07, OVG 8 A 2632/06.A, both the German Federal Administrative Court and the European Court of Justice, Bundesrepublik Deutschland v. B., [2010] EUECJ C-57/09, reviewed the Travaux préparatoires and concluded that the aim of the drafters was to protect the dignity of refugee status by excluding serious criminals from such status. The Court of Appeal in this case similarly concluded that “it is clear from the Travaux Préparatoires that the drafters did not intend to limit the exclusion provision to fugitives from justice” (2012 FCA 324, 442 N.R. 290, at para. 62).", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-19", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 41–43", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Febles points to statements made by certain delegates that he says support his interpretation when taken in context, but on a review of the Travaux préparatoires as a whole, no concluded intention to that effect emerges. Indeed, the French delegate stressed the need to distinguish between bona fide refugees and non-political criminals, and added that “refugees whose actions might bring discredit on that status” should be excluded (Travaux préparatoires, U.N. Doc. A/CONF.2/SR.29, at p. 19).\n\nAccordingly, I conclude that the Travaux préparatoires do not assist Mr. Febles’ position. (5) The Case Law on Article 1F(b)\n\nCourts around the world have suggested various rationales for the inclusion of Article 1F(b) in the Refugee Convention and have interpreted the provision in different ways. While the jurisprudence is inconclusive as to the precise scope and all of the rationales, there is agreement that Article 1F(b) is not limited to fugitives. After reviewing the foreign jurisprudence, I conclude that the interpretation adopted by the German Federal Administrative Court and the European Court of Justice, that Article 1F(b) excludes anyone who has previously committed a serious non-political crime, is the most consistent with both the prevailing trend in the case law and the text of the provision.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-20", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 44–45", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "I will first consider this Court’s obiter dicta in Ward and Pushpanathan to the extent that these are read as suggesting that Article 1F(b) is confined to fugitives. I will then review the international and Federal Court jurisprudence. A review of the jurisprudence demonstrates the difficulty of confining Article 1F(b) to a narrow category of people, like fugitives from justice, and confirms that it applies, as its words suggest, to anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.\n\nIn Ward, the Court was concerned with what the meaning is of “membership in a particular social group or political opinion”, corresponding to the terms of Article 1A(2) of the Refugee Convention. In obiter, La Forest J. made this brief comment regarding Article 1F(b): Hathaway would appear to confine paragraph (b) to accused persons who are fugitives from prosecution. The interpretation of this amendment was not argued before us. I note, however, that Professor Hathaway’s interpretation seems to be consistent with the views expressed in the Travaux préparatoires, regarding the need for congruence between the Convention and extradition law . . . . [p. 743]", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-21", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 46", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The most that can be said of this comment is that La Forest J., noting that the issue had not been argued, tentatively accepted the view of Professor Hathaway that Article 1F(b) was confined to fugitives, on the basis that it seemed to be consistent with certain statements found in the Travaux préparatoires. As noted earlier in these reasons, the Travaux préparatoires should not be relied on in interpreting Article 1F(b). Nor, looking at them in their totality, beyond the particular comments referred to by La Forest J. with respect to extradition law, do the Travaux préparatoires support the view that Article 1F(b) is confined to fugitives. Earlier in his Ward reasons, La Forest J. explicitly recognized the rationale of a concern to keep out criminal claimants, and the fact that Canada had amended its legislation to better serve that purpose: In the amended Immigration Act, R.S.C., 1985, c. I-2, Parliament has further responded to the concern of keeping out dangerous and criminal claimants by excluding from the definition of “Convention refugee” in s. 2 of the Act any person to whom the Convention does not apply pursuant to section E or F of Art. 1 . . . . [p. 742]", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-22", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 47–48", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Pushpanathan, this Court was concerned not with Article 1F(b), but with Article 1F(c), which excludes from protection those guilty of crimes contrary to the purposes and principles of the United Nations. Bastarache J., discussing the potential for overlap between Articles 1F(b) and 1F(c), suggested in obiter that Article 1F(b) was limited to “ordinary criminals extraditable by treaty” (para. 73). Bastarache J. gave no reasons for interpreting the clause as limited to extraditable fugitives, and the only authority cited at that section of the reasons is Professor G. S. Goodwin-Gill’s The Refugee in International Law (2nd ed. 1996). Under the heading The drafting history of article 1F(b), Goodwin-Gill’s text contains a phrase identical to that used by Bastarache J.: “The IRO Constitution excluded refugees who were ‘ordinary criminals . . . extraditable by treaty’” (p. 101 (emphasis added)).\n\nIt may therefore bear note that the more recent version of Professor Goodwin-Gill and J. McAdam’s text (The Refugee in International Law (3rd ed. 2007)), under the title The relation to extradition, observes as follows: . . . the “fugitives from justice” thesis appears to be on the wain, as being inconsistent with the ordinary meaning of the words. It is one thing to say that those seeking to escape prosecution for serious non-political crimes should not be recognized as refugees; but quite another to say that only such fugitives come within the scope of article 1F(b). [Emphasis in original; p. 175.]", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-23", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 49–51", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The restrictive views contained in the passing comments regarding Article 1F(b) made in obiter dicta in Ward and Pushpanathan find little support in the international case law. Recent jurisprudence out of the United Kingdom, Australia, New Zealand, and the European Union rejects the view that the purpose of Article 1F(b) is confined to exclusion of fugitives.\n\nIn T. v. Secretary of State for the Home Department, [1996] 2 All E.R. 865, the U.K. House of Lords discussed the purpose of Article 1F generally and indicated that the purpose of Article 1F(b) was not limited to exclusion of fugitives. Rather, Article 1F(b) recognizes that there are those “whose criminal habits ma[ke] it unreasonable for them to be forced on to a host nation against its will” (p. 875). More recently, the U.K. Upper Tribunal (Immigration and Asylum Chamber) confirmed that Article 1F(b) is not confined to fugitives in AH (Algeria) v. Secretary of State for the Home Department, [2013] UKUT 00382 (IAC) (para. 97).\n\nSimilar reasoning has been adopted in Australia. In Dhayakpa v. Minister of Immigration and Ethnic Affairs (1995), 62 F.C.R. 556, French J. of the Australian Federal Court stated that “[t]he exemption in Article 1F(b) . . . is protective of the order and safety of the receiving State” (para. 29). Dhayakpa was subsequently affirmed in Ovcharuk v. Minister for Immigration and Multicultural Affairs (1998), 88 F.C.R. 173, where the Australian Federal Court specifically declined to follow this Court’s dicta in Ward and Pushpanathan that Article 1F(b) applied only to fugitives (pp. 6 and 13).", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-24", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 52–53", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The leading Australian case is Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, 209 C.L.R. 533. Kirby J. made an extensive survey of the applicable principles of international law, and the context, object and purposes of the Refugee Convention. While he acknowledged the Refugee Convention’s humanitarian objectives and the “heavy burdens” it imposes on the contracting states (para. 94), he also found that the Refugee Convention represented a compromise between competing purposes: . . . countries of refuge are usually entitled to ensure the integrity of their own communities. In the case of serious crimes, such countries are normally entitled to exclude persons convicted of, or suspected of complicity in, such crimes. This is because such involvement may indicate, to some degree at least, the possibility of future risk to the community of the country of refuge. Without such entitlement in defined extreme cases, there would be a risk that the protective objectives of the Convention might be undermined by strong popular and political resentment. [Footnote omitted; para. 95.]\n\nIn Attorney-General (Minister of Immigration) v. Tamil X, [2010] NZSC 107, [2011] 1 N.Z.L.R. 721, the Supreme Court of New Zealand stated that two purposes underlie Article 1F(b): (1) to prevent fugitives from avoiding punishment for their crimes; and (2) to protect the security of states. The court made clear that the language of Article 1F(b) “cannot . . . be read as confining exclusion to those who are fugitives from justice” (para. 82).", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-25", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 54", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In B (Area of Freedom, Security and Justice), both the German Federal Administrative Court and the European Court of Justice held that current dangerousness is not relevant to the application of Article 1F(b). While the claimants in B (Area of Freedom, Security and Justice) were fugitives, both courts went on to discuss the general purpose and scope of both Articles 1F(b) and 1F(c) and suggested that the exclusions apply to anyone who has ever committed the acts referenced in those provisions. After examining the Travaux préparatoires of the Refugee Convention, the German Federal Administrative Court held that the dominant purpose of Article 1F(b) is to “protect refugee status from abuse, by keeping it from being granted to undeserving applicants” and to “prevent refugee status from being discredited by including criminals in the group of recognised refugees” (paras. 29-30). The European Court of Justice stated that Article 1F(b) operates as “a penalty for acts committed in the past” (para. 103) and was “introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails” (para. 104). In other words, Article 1F(b) is aimed at excluding from refugee status persons who have committed a serious crime, regardless of what may have happened since.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-26", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 55–57", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "I cannot agree with Justice Abella when she says that B (Area of Freedom, Security and Justice) “said nothing about whether — or the extent to which — Article 1F(b) deals with non-fugitives” (para. 120). To the contrary, the European Court of Justice, at paras. 100-105, made it clear that Articles 1F(b) and 1F(c) operate in the same way: to preserve the dignity of refugee status by excluding anyone who has ever committed the acts listed in those provisions. Indeed, even the appellant properly concedes that “a number of the propositions [in the European Court’s reasoning] seem to suggest that the Article [1F(b)] applies without limit” (A.F., at para. 78).\n\nTwo courts, however, have taken a narrow view of Article 1F(b). In Belgium, the Conseil du contentieux des étrangers has held that factors such as expiation, remorse, or even subsequent acts of charity are relevant to whether a claimant is deserving of refugee protection in a given case (see X v. Commissaire général aux réfugiés et aux apatrides, No. 27.479, May 18, 2009, and X v. Commissaire général aux réfugiés et aux apatrides, No. 69656, November 8, 2011).\n\nAnd in France, the Conseil d’État has stated that, while protection of the host society is, besides exclusion of fugitives, a rationale for Article 1F(b), a claimant who has served his sentence for a serious crime should not be excluded unless it is found, on the basis of something more than the fact that an Article 1F(b) crime was committed, that he would represent a danger to the public (Office français de protection des réfugiés et apatrides v. Hykaj, No. 320910, May 4, 2011).", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-27", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 58–61", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Federal Court of Appeal, confronted with this array of jurisprudence, has inclined to the view of the High Court of Australia and the European Court of Justice in a series of cases that includes Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R. 164, and the decision under appeal. The Federal Court of Appeal has not followed the obiter statements in Ward and Pushpanathan and has held that sentence completion does not “allow [a claimant] to avoid the application of Article 1F(b)” (Jayasekara, at para. 57).\n\nI conclude that the dominant tide of the jurisprudence is inconsistent with the conclusion that Article 1F(b) operates so as to exclude only fugitives, as well as with the proposition that post-crime conduct must be balanced against the crime’s seriousness. Of particular note, none of the international courts accept the dicta in Ward and Pushpanathan that exclusion of fugitives is the only rationale for Article 1F(b). In my view, the Ward and Pushpanathan obiter statements should no longer be followed. (6) Conclusion on the Scope of Article 1F(b)\n\nArticle 1F(b) excludes anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. Its application is not limited to fugitives, and neither is the seriousness of the crime to be balanced against factors extraneous to the crime such as present or future danger to the host society or post-crime rehabilitation or expiation. C. How Should a Crime’s Seriousness Be Assessed?\n\nThe appellant concedes that his crimes were “serious” when they were committed, obviating the need to discuss what constitutes a “serious . . . crime” under Article 1F(b). However, a few comments on the question may be helpful.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-28", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 62", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.), and Jayasekara has taken the view that where a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious. I agree. However, this generalization should not be understood as a rigid presumption that is impossible to rebut. Where a provision of the Canadian Criminal Code, R.S.C. 1985, c. C-46, has a large sentencing range, the upper end being ten years or more and the lower end being quite low, a claimant whose crime would fall at the less serious end of the range in Canada should not be presumptively excluded. Article 1F(b) is designed to exclude only those whose crimes are serious. The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (Goodwin-Gill, at p. 179). These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion from refugee protection. However, as indicated, the presumption may be rebutted in a particular case. While consideration of whether a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline, and crimes attracting a maximum sentence of ten years or more in Canada will generally be sufficiently serious to warrant exclusion, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner. D. The Domestic Statutory Context and the Canadian Charter of Rights and Freedoms", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-29", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 63–66", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Febles’ final argument is that his suggested interpretation of Article 1F(b) should be adopted because it creates harmony within the IRPA and ensures consistency with the Charter . This argument conflates two different interpretive exercises.\n\nAs discussed, Article 1F(b) of the Refugee Convention is part of an international treaty, the meaning of which is not affected by provisions of the IRPA . However, the Board is bound by the IRPA , and not by the Refugee Convention itself. Parliament has the power to pass legislation that complies with Canada’s obligations under the Refugee Convention, or to pass legislation that either exceeds or falls short of the Refugee Convention’s protections. In this case, therefore, there are two separate inquiries. First, what does Article 1F(b) of the Refugee Convention mean? For this first inquiry, the statutory scheme and the Charter are not relevant. Second, what does s. 98 of the IRPA mean? For this second inquiry, the domestic statutory context and the Charter are potentially relevant.\n\nI earlier concluded that Article 1F(b) of the Refugee Convention applies to anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.\n\nSection 98 of the IRPA expressly incorporates Article 1F(b) of the Refugee Convention, stating: “A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.” As such, it is clear that Parliament’s intent was for s. 98 to exclude from refugee protection in Canada all persons falling under Article 1F(b) of the Refugee Convention. There is nothing in the scheme of the IRPA as a whole that indicates a contrary intention.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-30", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 67–68", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "There is similarly no role to play for the Charter in interpreting s. 98 of the IRPA . Where Parliament’s intent for a statutory provision is clear and there is no ambiguity, the Charter cannot be used as an interpretive tool to give the legislation a meaning which Parliament did not intend: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 61-62. Moreover, as the Court of Appeal held, s. 98 of the IRPA is consistent with the Charter . As stated at para. 10 of these reasons, even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place (ss. 97 , 112 , 113 (d)(i) and 114(1) (b) of the IRPA ). On such an application, the Minister would be required to balance the risks faced by the appellant if removed against the danger the appellant would present to the Canadian public if not removed (s. 113 (d) of the IRPA ). Section 7 of the Charter may also prevent the Minister from issuing a removal order to a country where Charter-protected rights may be in jeopardy: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 58.\n\nWhile the appellant would prefer to be granted refugee protection than have to apply for a stay of removal, the Charter does not give a positive right to refugee protection. The appellant is excluded from refugee protection as a result of his commission of serious non-political crimes. If removal of the appellant to Cuba jeopardizes his Charter rights, his recourse is to seek a stay of removal, as discussed earlier.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-31", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 69–72", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Alternatively, if the appellant believes that the refugee status he was previously granted by the United States was improperly stripped by U.S. authorities under 8 U.S.C. § 1158(c)(2)(B) and § 1158(c)(3), he must challenge this in the justice system of the United States. The Canadian justice system cannot be invoked to determine the correctness or the constitutionality of decisions made by U.S. officials pursuant to U.S. laws. IV. Disposition\n\nI would dismiss the appeal and uphold the decision of the Board denying refugee protection to the appellant. The reasons of Abella and Cromwell JJ. were delivered by\n\nAbella J. (dissenting) — In the wake of the mass persecution and displacement of persons during World War II, the international community responsively consolidated and entrenched international protection for refugees through the 1951 United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (Refugee Convention).\n\nThe Refugee Convention, as amended by a 1967 Protocol relating to the Status of Refugees, 606 U.N.T.S. 267, is today the Rosetta Stone of refugee protection under international law, setting out the definition of who is considered a refugee, the rights of refugees, and the corresponding obligations of states towards refugees in their territory. Among other humanitarian protections provided in the Refugee Convention, the prohibition against refoulement under Article 33 provides that signatory states are prohibited from forcibly expelling or returning refugees to a territory in which there is a risk of persecution.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-32", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 73–75", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "While Article 1 sets out broad parameters for those persons with a well-founded fear of persecution who will be considered refugees, the category is not open-ended. The signatories to the Refugee Convention did not want the protections flowing from refugee status to be extended to individuals whose designation as refugees would compromise the integrity and political viability of those very protections.\n\nArticle 1F sets out the grounds for excluding an individual from the status of “refugee”. The claim for refugee status in this case depends on a determination of when the commission of a serious non-political crime in accordance with Article 1F(b) will disqualify an individual from the protective scope of the Refugee Convention. With great respect, I draw a different interpretive conclusion than does the majority. While Articles 1F(a) and (c) represent absolute barriers to refugee status, the human rights approach to interpretation mandated by the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (Vienna Convention), suggests a less draconian interpretation of Article 1F(b). In my view, except in the case of very serious crimes, an individual should not automatically be disqualified from the humanitarian protection of the Refugee Convention under this provision and should be entitled to have any expiation or rehabilitation taken into account. Background\n\nThe facts underlying the criminal conduct in question in this appeal are not contested. Luis Alberto Hernandez Febles is a Cuban citizen born on December 4, 1954. He left Cuba for the United States on May 14, 1980. He was granted refugee status in the United States on the ground of fear of persecution as a political dissident.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-33", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 76–81", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Febles pleaded guilty in 1984 and 1993 to two criminal offences in California. They are the basis of this appeal.\n\nOn July 2, 1984, Mr. Febles turned himself in to the police after having struck someone on the head with a hammer while the victim was sleeping. He had consumed alcohol at the time of the offence. On November 20, 1984, Mr. Febles pleaded guilty to “assault . . . with a deadly weapon . . . other than a firearm” under the Penal Code of California (s. 245(a)(1)), and was sentenced to two years in prison and three years of probation.\n\nThe second offence occurred on October 3, 1993, when Mr. Febles uttered threats while pointing a knife at someone. Mr. Febles pleaded guilty to “assault . . . with a deadly weapon . . . other than a firearm”. He was sentenced to two years in prison and three years of probation.\n\nMr. Febles does not deny responsibility for these offences. He admitted that he had serious alcohol problems at the time, but said that he has since stopped drinking after completing an Alcoholic Anonymous course between 1998 and 2002. From 2002 to 2008, Mr. Febles was gainfully employed in the United States.\n\nMr. Febles entered Canada on October 12, 2008. Two days later, on October 14, 2008, he reported to the authorities and applied for refugee status on the ground of fear of persecution in Cuba for his political beliefs. He freely disclosed his criminal convictions to the Canadian authorities in his interview with the Canada Border Services Agency.\n\nOn the basis of the Border Services report, Mr. Febles was referred to the Immigration Division of the Immigration and Refugee Board (Board) for an inadmissibility hearing. The Immigration Division concluded that Mr. Febles was inadmissible based on having committed a serious non-political crime.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-34", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 82–86", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "A deportation order was issued on June 3, 2010.\n\nOn October 14, 2010, the Board’s Refugee Protection Division heard Mr. Febles’ claim for refugee protection. The Minister of Public Safety and Emergency Preparedness filed a notice to intervene, arguing that Mr. Febles should be excluded from the definition of refugee under Article 1F(b) of the Refugee Convention because he had committed a serious non-political crime. Mr. Febles’ position was that he had served his sentences, was now rehabilitated, and posed no danger to Canada.\n\nThe Board dismissed his claim for refugee status on October 27, 2010, concluding that the gravity of his crime in 1984 disqualified him from refugee status under Article 1F(b) of the Refugee Convention.\n\nMr. Febles’ application for judicial review was dismissed by both the Federal Court, 2011 FC 1103, 397 F.T.R. 179, and Federal Court of Appeal, 2012 FCA 324, 442 N.R. 290. For the following reasons, I would allow the appeal and remit the matter to the Board for redetermination. Analysis\n\nArticle 1F of the Refugee Convention excludes three categories of individuals from the protective scope of its provisions by limiting the definition of a “refugee”: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-35", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 87–89", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The consequences of exclusion under Article 1F are significant. If an individual becomes ineligible for the status of a “refugee” on the basis of one of those exclusionary grounds, the humanitarian protections provided in the Refugee Convention are denied altogether, including the protection from refoulement under Article 33. An excluded individual is consequently at risk of being returned to face persecution in his or her country of origin, barring the availability of any residual protection under domestic or international human rights law.\n\nParliament incorporated Article 1F into the Immigration and Refugee Protection Act , S.C. 2001, c. 27 . Section 95 of the Act states that refugee protection is conferred on an individual where the Immigration and Refugee Board “determines the person to be a Convention refugee or a person in need of protection”. Section 98 carves out an exception for persons covered by Article 1F.\n\nArticle 31 of the Vienna Convention sets out the general rule for the interpretation of international treaties such as the Refugee Convention. Article 31(1) states: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-36", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 90", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Among other interpretive methods, Article 31(3) of the Vienna Convention provides that subsequent practice among the signatory states is relevant to context in the interpretive exercise where that practice “establishes the agreement of the parties regarding its interpretation”; see also Yugraneft Corp. v. Rexx Management Corp., [2010] 1 S.C.R. 649, at para. 21. Article 32 provides that recourse may be had to the travaux préparatoires of a treaty as a supplementary means of interpretation “in order to confirm the meaning resulting from the application of article 31”, or where the application of Article 31 results in ambiguity or a result which is “manifestly absurd or unreasonable”: Peracomo Inc. v. TELUS Communications Co., [2014] 1 S.C.R. 621, at para. 100.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-37", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 91", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, Bastarache J. described the application of this interpretive approach in the context of interpreting the Refugee Convention: [The Vienna Convention rules on treaty interpretation] have been applied by this Court in two recent cases, one involving direct incorporation of treaty provisions (Thomson v. Thomson, [1994] 3 S.C.R. 551) and another involving a section of the Immigration Act intended to implement Canada’s obligations under the Convention (Ward, supra). In the latter case, La Forest J. makes use of several interpretative devices: the drafting history of, and preparatory work on the provision in question; the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”), and previous judicial comment on the purpose and object of the treaty. Indeed, at p. 713, La Forest J. was willing to consider submissions of individual delegations in the travaux préparatoires, although he recognized that, depending on their content and on the context, such statements “may not go far” in supporting one interpretation over another. . . . . . . a priori denial of the fundamental protections of a treaty whose purpose is the protection of human rights is a drastic exception to the purposes of the Convention . . . and can only be justified where the protection of those rights is furthered by the exclusion. [paras. 53 and 74]", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-38", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 92–93", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In light of the human rights purposes of the Refugee Convention and the dramatic consequences of exclusion from the status of a refugee, Article 1F requires a particularly cautious interpretation: Ezokola v. Canada (Citizenship and Immigration), [2013] 2 S.C.R. 678, at paras. 31-36; Pushpanathan, at para. 57; see also Al-Sirri v. Secretary of State for the Home Department, [2012] UKSC 54, [2013] 1 A.C. 745, at paras. 12 and 16; United Nations High Commissioner for Refugees (UNHCR), “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, HCR/GIP/03/05, September 4, 2003 (online) (UNHCR Guidelines), at para. 2.\n\nThe link between the human rights object and a cautious interpretation is highlighted in the Preamble to the Refugee Convention itself, as LeBel and Fish JJ. confirmed in Ezokola: The preamble to the Refugee Convention highlights the international community’s “profound concern for refugees” and its commitment “to assure refugees the widest possible exercise of . . . fundamental rights and freedoms”. Our approach to art. 1F(a) must reflect this “overarching and clear human rights object and purpose”. [Para. 32, citing Pushpanathan, at para. 57.]", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-39", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 94", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, La Forest J. explained how the animating human rights purposes of the Refugee Convention inform the interpretation of the elements of the definition of “Convention refugee”: Underlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows: Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates. It sets out, in a general fashion, the intention of the drafters and thereby provides an inherent limit to the cases embraced by the Convention. Hathaway . . . thus explains the impact of this general tone of the treaty on refugee law: The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard. This theme sets the boundaries for many of the elements of the definition of “Convention refugee”. [p. 733]", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-40", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 95", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "This takes us to the purpose of the exclusion clauses in Article 1F. In Pushpanathan, Bastarache J. described their underlying purpose and relationship to the Refugee Convention as follows: The rationale is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees. As La Forest J. observes in Ward, supra, at p. 733, “actions which deny human dignity in any key way” and “the sustained or systemic denial of core human rights . . . se[t] the boundaries for many of the elements of the definition of ‘Convention refugee’”. This purpose has been explicitly recognized by the Federal Court of Appeal in the context of the grounds specifically enumerated in Article 1F(a) in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, where Linden J.A. stated (at p. 445): “When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status.” [para. 63]", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-41", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 96", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Bastarache J. rejected the suggestion that the exclusion clauses in Article 1F were intended to protect the country of refuge from dangerous refugees who are at a risk of reoffending. In his view, this interest is addressed by Article 33 of the Refugee Convention, which permits a state to expel a refugee to his or her native country if the individual is considered a danger to the receiving state (refoulement). To fold this function into Article 1F as well, in his view, would render Article 33 redundant: The purpose of Article 1 is to define who is a refugee. Article 1F then establishes categories of persons who are specifically excluded from that definition. The purpose of Article 33 of the Convention, by contrast, is not to define who is and who is not a refugee, but rather to allow for the refoulement of a bona fide refugee to his or her native country where he or she poses a danger to the security of the country of refuge, or to the safety of the community. This functional distinction is reflected in the Act, which adopts Article 1F as part of s. 2, the definitional section, and provides for the Minister’s power to deport an admitted refugee under s. 53, which generally incorporates Article 33. Thus, the general purpose of Article 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention. Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status. Although all of the acts described in Article 1F could presumably fall within the grounds for refoulement described in Article 33, the two are distinct. [Emphasis added; para. 58.]", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-42", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 97", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The UNHCR Guidelines also provide guidance on the purpose of the exclusion clauses in Article 1F generally: The rationale for the exclusion clauses, which should be borne in mind when considering their application, is that certain acts are so grave as to render their perpetrators undeserving of international protection as refugees. Their primary purpose is to deprive those guilty of heinous acts, and serious common crimes, of international refugee protection and to ensure that such persons do not abuse the institution of asylum in order to avoid being held legally accountable for their acts. The exclusion clauses must be applied “scrupulously” to protect the integrity of the institution of asylum, as is recognised by UNHCR’s Executive Committee in Conclusion No. 82 (XLVIII), 1997. At the same time, given the possible serious consequences of exclusion, it is important to apply them with great caution and only after a full assessment of the individual circumstances of the case. The exclusion clauses should, therefore, always be interpreted in a restrictive manner. [Emphasis added; para. 2.]", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-43", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 98–100", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Broadly speaking, then, Article 1F operates to maintain the integrity of the system of international refugee protection and the status of being a “refugee”. The parties to the Refugee Convention recognized this important function in their 2001 Declaration of States Parties to the 1951 Convention and or its 1967 Protocol Relating to the Status of Refugees, HCR/MMSP/2001/09 (Declaration of States), where the signatories reaffirmed their commitment to continue their efforts aimed at ensuring the integrity of the asylum institution, inter alia, by means of carefully applying Articles 1F and 33(2) of the 1951 Convention, in particular in light of new threats and challenges . . . . [Emphasis added; p. 3.]\n\nIn order to screen individuals who are not “bona fide refugees”, the application of Article 1F of the Refugee Convention operates to protect the integrity of the international refugee protection by excluding individuals who, as a result of having committed such “heinous acts, and serious common crimes”, are themselves considered undeserving of the status of refugee: UNHCR Guidelines, at para. 2; Pushpanathan, at para. 63; Ezokola, at para. 34.\n\nThe particular exclusion under scrutiny in this appeal is the one in Article 1F(b), which excludes individuals from the Refugee Convention where there “are serious reasons for considering that . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-44", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 101–103", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "There is little doubt that the primary purpose of Article 1F(b) was to exclude those individuals who would abuse the status of a refugee by avoiding accountability through prosecution or punishment for a serious crime outside the country of refuge. For the clause to apply, the crime must have been committed “outside the country of refuge prior to his [or her] admission to that country as a refugee”. This territorial limitation has been relied on as a strong textual indication that Article 1F(b) was intended to exclude those individuals who seek to abuse the status of being a refugee by evading prosecution in another jurisdiction: James C. Hathaway and Michelle Foster, The Law of Refugee Status (2nd ed. 2014), at p. 544. Further support for this interpretation emerges from the surrounding context of Article 1F(b), the UNHCR Guidelines, at para. 2, the interpretation of Article 1F(b) adopted in other jurisdictions, and the drafting history and travaux préparatoires of the Refugee Convention. See also Pushpanathan, at para. 73; Ward, at p. 743.\n\nThere is considerable debate, however, as to the extent to which Article 1F(b) was also intended to fulfill the additional purpose of excluding individuals who, as a result of having committed and been prosecuted for serious non-political crimes in the past, are considered undeserving of refugee protection under the Refugee Convention.\n\nTo be fully understood, the text of Article 1F(b) must be situated in its surrounding context and considered in light of its drafting history.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-45", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 104–106", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Preamble of the Refugee Convention directs that the contracting parties “revise and consolidate previous international agreements” relating to the rights of refugees, and “extend the scope of and the protection accorded by such instruments by means of a new agreement”.\n\nThe “previous international agreements” referred to in the Preamble each denied refugee protection for individuals who had committed crimes in other countries prior to entering the country of refuge and had yet to be prosecuted and punished for those crimes: Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (Universal Declaration) (adopted by the U.N. General Assembly on December 10, 1948); Constitution of the International Refugee Organization, August 20, 1948, 18 U.N.T.S. 3, Ann. I, Part II (excluding “[o]rdinary criminals who are extraditable by treaty”); Statute of the Office of the United Nations High Commissioner for Refugees, G.A. Res. 428(V) of December 14, 1950, p. 7 (excluding persons who had committed a “crime covered by the provisions of treaties of extradition”).\n\nMoreover, in reaffirming their commitment to international refugee protection, the signatories declared in 2001 that the Refugee Convention is “consistent with Article 14 of the Universal Declaration of Human Rights”: Declaration of States, at para. 2. Article 14 of the Universal Declaration deals with an individual’s right of asylum from persecution: 1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-46", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 107–109", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 14(2) is also significant because it was central to the discussions by states’ representatives at the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons in Geneva in July 1951 (Conference of Plenipotentiaries). I agree that the import of the travaux préparatoires with respect to Article 1F(b) is not obvious. But I do not agree, with respect, that the travaux préparatoires provide no insight of significance into the issues before us. In my view, the widely divergent interpretations of Article 1F(b) adopted by courts in other jurisdictions and the uncertainty created by the territorial limits described in Article 1F(b) mandate recourse to the interpretive assistance of the preparatory work.\n\nThroughout the early stages of the drafting history, Article 14(2) of the Universal Declaration, rather than the provision which eventually became Article 1F(b), was directly incorporated in the Refugee Convention. The travaux préparatoires provide some insight into why the signatories to the Convention modified the exclusionary language of Article 14(2) and adopted instead the text which is currently found in Article 1F(b).\n\nAt the Conference of Plenipotentiaries, the representative for the United Kingdom prompted discussion by proposing that the reference to Article 14(2) should be deleted altogether. In his view, incorporating Article 14(2) was entirely unnecessary in light of the provision in the draft Refugee Convention — what eventually became Article 33(2) — which permitted signatories to “refoule” refugees who posed a danger or threat to the country of refuge.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-47", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 110", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Nonetheless, some states — particularly France and Yugoslavia — were opposed to deleting the reference to Article 14(2) from the draft. France expressed a concern that there was a need to preserve the distinction between “ordinary common-law criminals” and “bona fide refugees” with respect to whether the individual was eligible for the status of a refugee under the Refugee Convention (Conference of Plenipotentiaries, Summary Record of the Twenty-fourth Meeting (Plenipotentiaries), U.N. Doc. A/CONF.2/SR.24 (1951)). The French representative argued that signatories to the Convention should not be required to grant refugee status to an individual who had no right of asylum within the meaning of Article 14(2) since asylum “was the conditio sine qua non of the possession of [refugee] status” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)).", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-48", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 111–112", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Notably, the representative from the United Kingdom confirmed that Article 14(2) “[was] intended to apply to persons who were fugitives from prosecution in another country for non-political crimes” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)), and the language ought more clearly to reflect this. None of the representatives disagreed with this position. This is not surprising, given that, as in the other previous international agreements noted above, the underlying assumption was that Article 14(2) restricted refugee protection for individuals who remained criminally liable abroad: Atle Grahl-Madsen, The Status of Refugees in International Law (1966), vol. I, Refugee Character, at p. 290. The UK representative also suggested that the language of Article 14(2) be modified so as to ensure that refugees who had committed trivial or minor crimes “should not thereby be placed once and for all beyond the reach of the Convention” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.24 (1951)).\n\nSome representatives expressed concern that the draft Refugee Convention should be coordinated with extradition law, so as to prevent a conflict between the Convention and an extradition treaty, while others were of the view that this was not a concern that needed to be expressly addressed under the Convention, but could be dealt with by way or reservations or declarations as needed.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-49", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 113–114", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Since it was apparent that the U.K.’s proposal to delete Article 14(2) was not broadly supported, the representatives turned their attention to revising its exclusionary language. France and Yugoslavia were of the view that the exclusion clause should only relate to crimes committed before entry into the territory of the receiving country. France also emphasized that the term “crime” must be distinguished from “misdemeanour”, and proposed that the clause refer only to “serious crimes” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)). In describing the “vital” necessity of retaining the provision, the representative from France emphasized the need for a provision which would permit France to screen individuals at the border and grant asylum for some individuals on French territory, without having to confer on those individuals the status of a refugee (ibid.).\n\nAfter some discussion, a variation proposed by Yugoslavia was ultimately adopted,[1] and agreed to by the U.K.’s representative because while he did not regard the revised Yugoslav amendment as entirely free from objection, [he] felt that it at least removed his . . . main objection to the text . . . as originally drafted, which would have made it too easy for States to withdraw the status of refugee from many persons who had been granted asylum from persecution. [Emphasis added; ibid.] After Belgium proposed some minor modifications,[2] Article 1F(b) as it is now drafted was adopted by the representatives.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-50", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 115–116", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "This linguistic conclusion to the discussions, whose origins were to discuss whether to expand the scope of those who were entitled to refugee status notwithstanding their commission of a crime for which they evaded prosecution, argues strongly against using this expanded protection to narrow the category of those entitled to protection.\n\nThe most significant aspect of the discussions for purposes of this appeal, is that the discussions were only about refugee claimants who had committed a crime outside the country of refuge but had not been convicted or served a sentence for that crime. In this context, there was broad agreement among the representatives that only fugitives from serious non-political crimes be excluded from entitlement. The issue was never about those who had committed serious crimes and had already served their sentences outside the receiving country.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-51", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 117–118", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Turning to the interpretation adopted in other jurisdictions of Article 1F(b), it is widely accepted that the original purpose of Article 1F(b) was to deny refugee status to fugitives, namely, those individuals who had avoided prosecution for serious non-political crimes committed abroad. This was based on the premise that enabling those individuals to obtain refugee status would compromise the integrity of the international system of refugee protection. The European Court of Justice, in a decision about the interpretation of Article 12(2)(b) and (c) of the Directive 2004/83/EC of the Council of the European Union which incorporates Article 1F(b) and (c) into E.U. legislation, has recognized that one of the purposes of exclusion under those provisions is to prevent the status of being a refugee “from enabling those who have committed certain serious crimes to escape criminal liability” (Bundesrepublik Deutschland v. B., [2010] EUECJ C-57/09, at para. 104). See also Australia (SRYYY v. Minister for Immigration and Multicultural and Indigenous Affairs, [2005] FCAFC 42, 220 A.L.R. 394); New Zealand (Attorney-General (Minister of Immigration) v. Tamil X, [2010] NZSC 107, [2011] 1 N.Z.L.R. 721, at para. 82 (Tamil X)); the United Kingdom (AH (Algeria) v. Secretary of State for the Home Department, [2013] UKUT 00382 (IAC) (AH)); and France (Office français de protection des réfugiés et apatrides v. Hykaj, No. 320910, May 4, 2011).\n\nAll jurisdictions also appear to agree that there are other circumstances in which Article 1F(b) excludes individuals from the Refugee Convention, but there seems to be little agreement as to when those circumstances arise.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-52", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 119–120", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Australian courts have concluded that Article 1F(b) is additionally intended to protect the country of refuge from individuals who are considered dangerous as a result of committing past crimes (Dhayakpa v. Minister of Immigration and Ethnic Affairs (1995), 62 F.C.R. 556, at para. 29; Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, 209 C.L.R. 533, at paras. 15 and 95-96), as has New Zealand (Tamil X, at para. 82). Other jurisdictions, however, like this Court in Pushpanathan, have expressly rejected the proposition that exclusion of dangerous individuals is the underlying purpose of Article 1F(b), even if its application may incidentally have that effect in some cases.\n\nThe European Court of Justice concluded that it would be inconsistent with the purposes of exclusion “to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State” (Bundesrepublik Deutschland v. B., at para. 104). The court held that the dangerousness of the individual is not considered under Article 12(2) of the European directive (incorporating Article 1F), but under the Articles of the directive which incorporate Article 33(2) of the Refugee Convention (para. 101). Notably, this case said nothing about whether — or the extent to which — Article 1F(b) deals with non-fugitives. Nor did it conclude that it automatically excludes anyone who has ever committed a serious crime.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-53", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 121", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "And still other jurisdictions have found that rehabilitation, the seriousness of the crime, and other factors relating to the individual circumstance of the claimant are relevant. In Belgium, in a case about a refugee claimant who had committed and completed sentences for past crimes abroad, the Conseil du contentieux des étrangers concluded that Article 1F(b) applied to exclude the individual from the Refugee Convention on the basis of the individual’s lack of remorse for very grave criminal conduct (X v. Commissaire général aux réfugiés et aux apatrides, No. 69656, November 8, 2011). The Conseil du contentieux des étrangers observed that the decision to exclude the individual at issue had been reached on grounds which included an express reference to the “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees” (Background Note) (online), prepared by the UNHCR in 2003, that the completion of a sentence for a crime may be considered a relevant form of expiation, and that other factors such as the gravity of the offence and the claimant’s age and remorsefulness must also be considered. But in cases involving truly heinous crimes, exclusion under Article 1F(b) will be mandated even where the claimant has completed a sentence for a crime committed and demonstrated remorse (XXX v. État belge, No. 199.079, A. 192.074/XI-16.797, Conseil d’État (Section du contentieux administratif), December 18, 2009; X v. Commissaire général aux réfugiés et aux apatrides, No. 27.479 (Conseil du contentieux des étrangers), May 18, 2009).", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-54", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 122–123", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the United Kingdom, earlier decisions of the Immigration Appeal Tribunal took a literal approach to the words of Article 1F(b) and rejected an interpretation in which expiation (understood as “punishment, pardon, or amnesty” or “remorse or change of heart”) is relevant to determining whether past criminal conduct is a basis for exclusion under Article 1F(b): KK (Turkey) v. Secretary of State for the Home Department, [2004] UKIAT 00101, at para. 92; Secretary of State for the Home Department v. AA (Palestine), [2005] UKIAT 00104, at paras. 59-62. Instead, the Tribunal considered it should apply the words of Article 1F(b) “exactly as they are written” (KK, at para. 92).\n\nBut recently, a more generous approach has been taken to the interpretation of Article 1F “because of the serious consequences of excluding a person who has a well-founded fear of persecution from the protection of the Refugee Convention” (Al-Sirri, at paras. 12 and 16; R. (JS (Sri Lanka)) v. Secretary of State for the Home Department, [2010] UKSC 15, [2010] 3 All E.R. 881).", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-55", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "para 124", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In a recent decision involving a refugee claimant who had been convicted of and completed a sentence for a prior criminal offence, the Upper Tribunal (Immigration and Asylum Chamber) adopted a high threshold of seriousness for triggering Article 1F(b) where the individual had already completed a sentence for the crime, and left open the possibility that supervening events may be relevant to the analysis (AH). The Tribunal found that Article 1F(b) has two purposes: the “prevention of abuse of the asylum system by undermining extradition law or the mutual interest amongst states in prosecuting serious offenders”, and to exclude “those who have demonstrated by their conduct they are not worthy of it” (para. 85). In determining whether an individual is “unworthy” on the basis of past conduct, the Tribunal found: . . . that limbs 1F(a) and (c) serve to illustrate the level of seriousness required to engage Article 1F(b); the genus of seriousness is at a common level throughout. Those who commit war crimes and acts against the principles and purposes of the United Nations are clear examples of people who are unworthy of protection. [Emphasis added; para. 86.]", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-56", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 125–126", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "It also noted that the French text of Article 1F(b) provides important insight into the level of seriousness required for exclusion under that clause: The French text of Article 1F(b) refers to “un crime grave” whereas that for Article 33(2) refers to “un délit particulièrement grave”. A crime in French law is a more serious class of offence than a délit. According to Cornu’s Vocabulaire Juridique (9th edition) 2011, “crime” is a “transgression particulièrement grave”. We accept, however, that the classification of the offence in national law is not the issue (as it happens the offences of which the appellant was convicted in France were both délits). The point is rather that the focus on the use of the English word “crime” in both Articles loses the quality of seriousness reflected in the French word. It may be that the language of the French text is where the UNHCR and the commentators obtain the notion that serious crimes were once capital crimes. [para. 88]\n\nOn those facts, it was held that “personal participation in a conspiracy to promote terrorist violence can be a particularly serious crime for the purpose of Article 1F(b)” (para. 89). The Tribunal emphasized that “[w]e must search for the autonomous international meaning of the term rather than what might be purely national law concerns about what conduct should be penalised and sentencing policy” (para. 83). Seriousness is to be examined at the time the criminal acts were committed, but the Tribunal noted that events such as a pardon, or a final acquittal in the “supervening passage of time may be relevant to whether exclusion is justified” (para. 97).", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-57", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 127–128", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The UNHCR’s “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, which “forms an integral part of UNHCR’s [position]” on the interpretation of Article 1F (UNHCR Guidelines), provides guidance of particular relevance: . . . it is arguable that an individual who has served a sentence should, in general, no longer be subject to the exclusion clause as he or she is not a fugitive from justice. Each case will require individual consideration, however, bearing in mind issues such as the passage of time since the commission of the offence, the seriousness of the offence, the age at which the crime was committed, the conduct of the individual since then, and whether the individual has expressed regret or renounced criminal activities. In the case of truly heinous crimes, it may be considered that such persons are still undeserving of international refugee protection and the exclusion clauses should still apply. This is more likely to be the case for crimes under Article 1F(a) or (c), than those falling under Article 1F(b). [Emphasis added; para. 73.]\n\nTwo related observations emerge from this review. The first is that, like the international agreements relating to refugees which were consolidated and revised by the Refugee Convention, Article 1F(b) was originally intended to maintain the integrity of the status of refugee by excluding fugitives. The travaux préparatoires confirm that the exclusion of those who have committed serious and unpunished crimes was not only a practical concern; it was a moral one for the integrity of the international system of refugee protection.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-58", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 129–131", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "But as the recent international jurisprudence shows, it remains far from clear that the signatories to the Refugee Convention intended to exclude all individuals who were believed to have committed serious non-political crimes, without regard for whether they had been rehabilitated. In my view, this leaves it open to this Court to reach its own conclusion as to how to interpret the scope of 1F(b).\n\nThe requisite good faith interpretive approach mandates not divorcing the text of Article 1F(b) from its human rights purpose. This is particularly so given the clear concern at the Conference of Plenipotentiaries that the basis for exclusion under Article 1F(b) should be restrictively written so that it would not be “too easy” for states to deny the humanitarian protections guaranteed by the Refugee Convention (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)).\n\nThis means, as the UNHCR Guidelines state, that there is room for discretion to apply Article 1F(b) “only after a full assessment of the individual circumstances of the case” (para. 2 (emphasis added)). There is little or no authority for the proposition that everyone who has committed a serious non-political crime outside the country of refuge remains permanently undeserving of the Refugee Convention’s protection regardless of their supervening personal circumstances. Such a relentlessly exclusionary — and literal — approach would contradict both the “good faith” approach to interpretation required by the Vienna Convention as well as the Refugee Convention’s human rights purpose.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-59", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 132–133", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, depending on the seriousness of the crime, if an individual is believed to have committed a serious non-political crime, the purpose of Article 1F(b) can be met where the individual’s circumstances reflect a sufficient degree of rehabilitation or expiation that the claimant ought not to be disqualified from the humanitarian protection of the Refugee Convention. The completion of a sentence, along with factors such as the passage of time since the commission of the offence, the age at which the crime was committed, and the individual’s rehabilitative conduct, will all be relevant. On the other hand, individuals who have committed such serious crimes that they must be considered undeserving of the status of being a refugee would be excluded.\n\nSupport for this interpretation comes from the approach taken by the UNHCR and by foreign courts in Belgium and the United Kingdom, which have emphasized that those who have committed particularly serious crimes are excluded under the Refugee Convention on the basis that they are undeserving of the status of a refugee. This approach also accords with the intention of the signatories to the Refugee Convention to protect the integrity and viability of the international system of protection for refugees by limiting the obligations of the contracting parties towards individuals who have committed very serious crimes. Application", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-14419-60", - "doc_type": "caselaw", - "act_code": "2014 SCC 68", - "act_short": "Febles", - "act_name": "Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", - "marginal_note": "paras 134–136", - "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In concluding that Mr. Febles was excluded from the Refugee Convention on the basis of Article 1F(b), the Board considered “only the crime committed in 1984, for which there is more information” and found that Mr. Febles had committed a “serious non-political crime” (para. 22). It observed that Mr. Febles had completed the sentence imposed for the offence committed in 1984, and that “it might appear unfair to the claimant that, although he served his sentence and took the second chance that life was offering him 17 years ago and chose to follow a straighter path, the crimes he committed many years ago are coming back to haunt him” (para. 24). The question it did not determine is whether this offence was so serious that Mr. Febles must be considered undeserving of the status of a refugee.\n\nMr. Febles expressed remorse immediately after the commission of the offence and turned himself in to the police. He pleaded guilty and served his sentence for his criminal conduct. He also admitted that he was suffering from problems with alcohol at the time of the offence. While it is clear that the criminal conduct was serious, what has yet to be determined is whether the crime is so serious that Mr. Febles’ personal circumstances since serving his sentence in 1984 ought to be disregarded in considering whether he is entitled to refugee status.\n\nI would therefore allow the appeal and return the matter to the Immigration and Refugee Board for redetermination in accordance with these reasons. Appeal dismissed, Abella and Cromwell JJ. dissenting.", - "current_to": "2014-10-30", - "last_amended": "", - "history": "[2014] 3 SCR 431", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" - }, - { - "id": "scc-13184-1", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 1–3", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Criminal responsibility does not fall solely upon direct perpetrators of crime. A murder conviction, for example, can attach equally to one who pulls the trigger and one who provides the gun. Complicity is a defining characteristic of crimes in the international context, where some of the world’s worst crimes are committed often at a distance, by a multitude of actors.\n\nWhile principal perpetrators may be distinguished from secondary actors for sentencing, the distinction is irrelevant for the purposes of art. 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”). Article 1F(a) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Those who commit these offences are not entitled to the humanitarian protection provided by the Refugee Convention. Where exclusion from refugee status is the only “sanction”, it is not necessary to distinguish between principals, aiders and abettors, or other criminal participants. Individuals may be excluded from refugee protection for international crimes through a variety of modes of commission.\n\nGuilt by association, however, is not one of them.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-2", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 4–6", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "This appeal homes in on the line between association and complicity. It asks whether senior public officials can be excluded from the definition of “refugee” by performing official duties for a government that commits international crimes. It is the task of this Court to determine what degree of knowledge and participation in a criminal activity justifies excluding secondary actors from refugee protection. In other words, for the purposes of art. 1F(a), when does mere association become culpable complicity?\n\nIn contrast to international crime, determining responsibility for domestic crime is often direct. While party liability plays a role, domestic criminal law, in its simplest form, asks whether one individual has committed one crime against one victim. In international criminal law, the focus often switches to the collective and to the links between individuals and collective action. International criminal law typically asks whether a group of individuals, an organization or a state has committed a series of crimes against a group of victims. In other words, party liability plays a much greater role in the commission of those crimes recognized as some of the most serious in the international legal order: R. Cryer et al., An Introduction to International Criminal Law and Procedure (2nd ed. 2010), at p. 361.\n\nAware of the collective aspects of international crime, the Federal Court of Appeal correctly concluded that senior officials may be held criminally responsible for crimes committed by their government if they are aware of the crimes being committed yet remain in their position without protest and continue to defend the interests of the government.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-3", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 7–9", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, this does not mean that high-ranking government officials are exposed to a form of complicity by association. Complicity arises by contribution. The collective nature of many international crimes does not erase the importance of holding an individual responsible only for his or her own culpable acts: G. Werle, “Individual Criminal Responsibility in Article 25 ICC Statute” (2007), 5 J.I.C.J. 953, at p. 953.\n\nWhile individuals may be complicit in international crimes without a link to a particular crime, there must be a link between the individuals and the criminal purpose of the group — a matter to which we will later return. In the application of art. 1F(a), this link is established where there are serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose. As we shall see, a broad range of international authorities converge towards the adoption of a “significant contribution test”.\n\nThis contribution-based approach to complicity replaces the personal and knowing participation test developed by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306. In our view, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association. A change to the test is therefore necessary to bring Canadian law in line with international criminal law, the humanitarian purposes of the Refugee Convention, and fundamental criminal law principles.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-4", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 10–13", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "We would therefore allow the appeal and send the matter back to a different panel of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) for redetermination in accordance with these reasons. The panel will decide whether there are serious reasons for considering that the appellant’s knowledge of, and participation in, the crimes or criminal purposes of his government meet the complicity by contribution test. As always, whether art. 1F(a) operates to exclude an individual from refugee protection will depend on the particular facts of the case. A. Background Facts\n\nThe appellant, Rachidi Ekanza Ezokola, began his career with the government of the Democratic Republic of Congo (“DRC”) in January 1999. He was hired as a financial attaché at the Ministry of Finance and was assigned to the Ministry of Labour, Employment and Social Welfare in Kinshasa. He later worked as a financial adviser to the Ministry of Human Rights and the Ministry of Foreign Affairs and International Cooperation.\n\nIn 2004, the appellant was assigned to the Permanent Mission of the DRC to the United Nations (“UN”) in New York. In his role as second counsellor of embassy, the appellant represented the DRC at international meetings and UN entities including the UN Economic and Social Council. He also acted as a liaison between the Permanent Mission of the DRC and UN development agencies. In 2007, the appellant served as acting chargé d’affaires. In this capacity, he led the Permanent Mission of the DRC and spoke before the Security Council regarding natural resources and conflicts in the DRC.\n\nThe appellant worked at the Permanent Mission until January 2008 when he resigned and fled to Canada.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-5", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 14–15", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant says he ultimately resigned because he refused to serve the government of President Kabila which he considered to be corrupt, antidemocratic and violent. He claims his resignation would be viewed as an act of treason by the DRC government. He claims that the DRC’s intelligence service harassed, intimidated, and threatened him because it suspected he had links to Jean-Pierre Bemba, President Kabila’s opponent. It was on this basis that he sought refugee protection for himself, his wife, and their eight children in Canada. B. Judicial History (1) Immigration and Refugee Board — Refugee Protection Division, 2009 CanLII 89027\n\nThe issue for the Board in determining the appellant’s application for refugee protection was whether the appellant should be excluded from Canada on the basis of s. 98 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”). This provision directly incorporates art. 1F(a) of the Refugee Convention into Canadian law. The Board excluded the appellant from the definition of “refugee” under art. 1F(a). It held that, although the government of the DRC was not an organization with a limited and brutal purpose, it had committed crimes against humanity as defined by the Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998 (“Rome Statute”), and Canadian jurisprudence: paras. 31 and 43. The Board concluded that the government’s crimes continued even as the government itself changed: para. 33.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-6", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "para 16", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Board relied on various reports — including media, governmental, and non-governmental — to find international crimes were committed on both sides of conflicts spanning several years. For instance, at para. 39, it cited a report by Human Rights Watch, dated January 18, 2006, which condemned the conduct of the DRC government (and others): In 2005, combatants from armed groups as well as government soldiers deliberately killed, raped, and abducted civilians and destroyed or looted their property in repeated attacks, particularly in eastern Congo. A feeble justice system failed to prosecute these recent crimes and did nothing to end impunity for war crimes and crimes against humanity committed during the previous two wars. The September 2005 discovery of mass graves from 1996 in the eastern region of Rutshuru served as a reminder of the unpunished mass slaughter of civilians in Congo in the last decade. . . . The government failure to integrate troops of former belligerent groups into the national army and to properly train and pay its soldiers underlay some military abuses. Military abuses such as those that occurred in December 2004 in North Kivu where government soldiers and combatants refusing integration fought and killed at least one hundred civilians, many of them targeted on an ethnic basis, were repeated elsewhere in 2005. In Walungu, South Kivu, government soldiers raped civilians and looted property during operations against the FDLR in late 2004 and early 2005. In Equateur, poorly paid and undisciplined troops went on a rampage in July 2005, killing, raping, and stealing from civilians.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-7", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 16–20", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "As government soldiers tried to take control of Ituri and parts of North and South Kivu, Maniema and Katanga in late 2004 and 2005, both they and the combatants fighting them committed grave violations of international humanitarian and human rights law. (World Report 2006: Events of 2005 (2006), at pp. 90-92)\n\nThe Board also cited reports condemning the DRC authorities’ practice of recruiting child soldiers: paras. 36 and 40.\n\nThe Board concluded that “[t]he evidence clearly shows that the Congolese government represses human rights, carries out civilian massacres and engages in governmental corruption”: para. 43.\n\nIn the Board’s view, the appellant was complicit in these crimes. Based on the appellant’s official rank, he had “personal and knowing awareness” of the crimes committed by his government: para. 71. The Board pointed out that the appellant had joined the government voluntarily and continued to act in his official capacity until he feared for his own safety. In the Board’s view, the appellant’s functions and responsibilities helped to sustain the government of the DRC. The Board therefore had serious reasons for considering that the appellant was complicit in the crimes committed by the government. (2) Federal Court — Mainville J., 2010 FC 662, [2011] 3 F.C.R. 377\n\nThe Federal Court allowed the appellant’s application for judicial review. The court determined that an individual cannot be excluded under art. 1F(a) merely because he had been an employee of a state whose government commits international crimes. Complicity requires a nexus between the claimant and the crimes committed by the government.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-8", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 21–22", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In order to determine whether this link existed, the court considered the modes of commission provided for in the Rome Statute and concluded that “criminal responsibility for crimes against humanity requires personal participation in the crime alleged or personal control over the events leading to the crime alleged”: para. 86.\n\nIn the court’s view, the required nexus between the claimant and the crimes “may be established by presumption if the claimant held a senior position in the public service, where there are serious reasons for considering that the position in question made it possible for the refugee claimant to commit, incite or conceal the crimes, or to participate or collaborate in the crimes”: para. 4. However, in this case there was “no evidence that tend[ed] to show direct or indirect personal participation by the applicant in the crimes alleged, and there [was] no evidence of incitement or active support by the applicant for those crimes”: para. 104. It was an error to assign responsibility to the appellant solely on the basis of his position within the government, absent a personal nexus between his role and the army or police of the DRC.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-9", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 23–25", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The court certified the following question: For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, is there complicity by association in crimes against humanity from the fact that the refugee claimant was a public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and did not denounce them, when there is no proof of personal participation, whether direct or indirect, of the refugee claimant in these crimes? (2011 FCA 224, [2011] 3 F.C.R. 417, at para. 28) (3) Federal Court of Appeal — Noël J.A. (Nadon and Pelletier JJ.A.)\n\nThe Federal Court of Appeal answered the certified question in the affirmative, but not before reformulating it as follows: For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, can complicity by association in crimes against humanity be established by the fact that the refugee claimant was a senior public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and remained in his position without denouncing them? [para. 44]\n\nThe Federal Court of Appeal rejected the Federal Court’s approach to complicity, describing it as inconsistent with Canadian jurisprudence and too narrow: paras. 46 and 57. The Federal Court of Appeal concluded that a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government demonstrate “personal and knowing participation” in these crimes and be complicit with the government in their commission. [para. 72]", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-10", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 26–29", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The court added that “the final outcome will always depend on the facts particular to each case”: para. 72.\n\nThe Federal Court of Appeal decided it was unnecessary to determine whether the conclusion of the Board was reasonable because it had applied the wrong test for complicity. Instead of applying the “personal and knowing participation” test, the Board considered the appellant’s “personal and knowing awareness”: para. 75. The Federal Court of Appeal therefore remitted the matter to a different panel of the Board to apply the personal and knowing participation test to determine whether the appellant was an accomplice in the crimes committed by the DRC. II. Analysis A. Issues\n\nWhether or not the appellant should ultimately be excluded from refugee protection for having committed international crimes will be determined by the Board at a de novo hearing. The task for this Court is to determine what test for complicity will be applied by the art. 1F(a) decision maker. To answer this question, the Court must also address the evidentiary standard applicable to art. 1F(a) determinations.\n\nFor the reasons that follow, we conclude that an individual will be excluded from refugee protection under art. 1F(a) for complicity in international crimes if there are serious reasons for considering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime. The evidentiary burden falls on the Minister as the party seeking the applicant’s exclusion: Ramirez, at p. 314.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-11", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 30–32", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In rejecting a guilt-by-association approach to complicity, we have considered (i) the purpose of the Refugee Convention and art. 1F(a); (ii) the role of the Board; (iii) the international law to which art. 1F(a) expressly refers; and (iv) the approach to complicity under art. 1F(a) taken by other state parties to the Refugee Convention. Each of these demonstrates the need to rein in the Canadian approach to complicity under art. 1F(a) to ensure that individuals are not excluded from refugee protection for merely being associated with others who have perpetrated international crimes. B. The Purpose of the Refugee Convention and Article 1F(a)\n\nIn our view, the purpose of the Refugee Convention, together with the purpose of art. 1F(a), sheds light on the proper approach for determining exclusions from refugee protection based on complicity in international crimes: Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, art. 31.\n\nThe preamble to the Refugee Convention highlights the international community’s “profound concern for refugees” and its commitment “to assure refugees the widest possible exercise of . . . fundamental rights and freedoms”. Our approach to art. 1F(a) must reflect this “overarching and clear human rights object and purpose”: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 57.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-12", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 33–35", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "That said, the Refugee Convention’s commitment to refugee protection is broad, but not unbounded. It does not protect international criminals. Incorporated directly into Canadian law by s. 98 of the IRPA , art. 1F(a) guards against abuses of the Refugee Convention by denying refugee protection to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;\n\nAs the Federal Court of Appeal recognized in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, at p. 445: “When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status.” In other words, those who create refugees are not refugees themselves: Pushpanathan, at para. 63; Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, at para. 118.\n\nOn the one hand then, if we approach art. 1F(a) too narrowly, we risk creating safe havens for perpetrators of international crimes — the very scenario the exclusion clause was designed to prevent. On the other hand, a strict reading of art. 1F(a) arguably best promotes the humanitarian aim of the Refugee Convention: United Nations High Commissioner for Refugees (“UNHCR”), “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, HCR/GIP/03/05, September 4, 2003 (online), at para. 2.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-13", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 36–38", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The foregoing demonstrates the need for a carefully crafted test for complicity — one that promotes the broad humanitarian goals of the Refugee Convention but also protects the integrity of international refugee protection by ensuring that the authors of crimes against peace, war crimes, and crimes against humanity do not exploit the system to their own advantage. As we will explain, these two aims are properly balanced by a contribution-based test for complicity — one that requires a voluntary, knowing, and significant contribution to the crime or criminal purpose of a group. C. The Role of the Refugee Protection Division: Exclusion Determinations, Not Findings of Guilt\n\nIn addition to the purposes of the Refugee Convention and art. 1F(a), the test for complicity must reflect the role of the Board and must work within the practical realities of refugee proceedings.\n\nA refugee hearing is not a criminal trial before an international tribunal. International criminal tribunals render verdicts for some of the most serious crimes in the international legal order. In contrast, the Board makes exclusion determinations; it does not determine guilt or innocence. The purpose of art. 1F(a) “is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status”: Pushpanathan, at para. 58.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-14", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 39–41", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "To achieve this purpose, Board hearings tend to be less formal than criminal trials. The Board is not bound by traditional rules of evidence: IRPA , at s. 170(g) and (h); Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385, at para. 41; Kumar v. Canada (Citizenship and Immigration), 2009 FC 643 (CanLII), at paras. 28-29. Section 162(2) of the IRPA instructs each division of the Board to “deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”.\n\nAs we will discuss in more detail below, the differences between a criminal trial and a Board hearing are further reflected in — and accommodated by — the unique evidentiary burden applicable to art. 1F(a) determinations: a person is excluded from the definition of “refugee” on the basis of the “serious reasons for considering” standard.\n\nIn light of these features of refugee proceedings, it is unnecessary to craft a multitude of tests for each mode of commission through which a government official may be held complicit in the crimes committed by his or her government. Unique considerations may arise in cases where the individual is said to have control or responsibility over the alleged perpetrators, or where the individual allegedly made specific contributions to a specific crime (in the form of instigating, ordering, or inciting, for example). However, here we are concerned with general participation in a group’s criminal activity. We must determine when that participation becomes a culpable contribution. D. The Board Must Rely on International Law to Interpret Article 1F(a)", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-15", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 42–43", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Following the express direction in the text of art. 1F(a), we now turn to international law for guidance. As mentioned, art. 1F(a) excludes individuals when “there are serious reasons for considering that” they have “committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments”. We must therefore consider international criminal law to determine whether an individual should be excluded from refugee protection for complicity in international crimes: Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 302 N.R. 178, at para. 8. We will also look to international jurisprudence for guidance: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at paras. 82 and 126.\n\nIn our view, international law is relevant both for the elements of the offences and their potential modes of commission. As the appellant stated, art. 1F(a) is not concerned with simply identifying the substantive elements of the offence, but with whether there are serious reasons for considering that the individual has committed a crime as defined in international law. Since there is no dispute in this appeal that the elements of the crimes have been carried out by the government of the DRC, we are concerned here with modes of commission.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-16", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 44–45", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Whether an individual is complicit in an international crime cannot be considered in light of only one of the world’s legal systems: Ramirez, at p. 315; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), at p. 323. This flows not only from the explicit instruction in art. 1F(a) to apply international law, but also from the extraordinary nature of international crimes. They simply transcend domestic norms. As Fannie Lafontaine explains in Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts (2012), at p. 95: Genocide, crimes against humanity and war crimes, because of their very raison d’être, their particular magnitude and the context of their commission, cannot be assimilated to ordinary crimes, regardless of the latter crimes’ intrinsic gravity.\n\nInternational criminal law, while built upon domestic principles, has adapted the concept of individual responsibility to this setting of collective and large-scale criminality, where crimes are often committed indirectly and at a distance. As Gerhard Werle puts it, at p. 954: When allocating individual responsibility within networks of collective action, it must be kept in mind that the degree of criminal responsibility does not diminish as distance from the actual act increases; in fact, it often grows. Adolf Hitler, for example, sent millions of people to their deaths without ever laying a hand on a victim himself. And mass killer Adolf Eichmann organized the extermination of European Jews from his office in the Berlin headquarters of the “Reichssicherheitshauptamt” of the SS.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-17", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 46–49", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "We are therefore required by both the text of art. 1F(a) and the realities of international crime to look beyond the bounds of Canadian criminal law. We must refrain from interpreting and applying international criminal law as if it were simply the mirror of our domestic criminal law: Cassese’s International Criminal Law (3rd ed. 2013), revised by A. Cassese et al., at pp. 6-7.\n\nThe question is — what are the relevant sources of international criminal law?\n\nIn our view, the best place to start is the Rome Statute. As Lord Brown of Eaton-under-Heywood J.S.C. recognized in R. (J.S. (Sri Lanka)) v. Secretary of State for the Home Department, [2010] UKSC 15, [2011] 1 A.C. 184 (“J.S.”), at para. 9: It is convenient to go at once to the [Rome] Statute, ratified as it now is by more than 100 states and standing as now surely it does as the most comprehensive and authoritative statement of international thinking on the principles that govern liability for the most serious international crimes (which alone could justify the denial of asylum to those otherwise in need of it).\n\nCanada’s acceptance of the Rome Statute as authority on international criminal principles is beyond dispute. Canada is not only party to the Rome Statute, Parliament has implemented the treaty into domestic law through the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 .", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-18", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "para 50", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 25 of the Rome Statute provides extensive descriptions of modes of commission. These enumerated modes of liability have been described as the culmination of the international community’s efforts to codify individual criminal responsibility under international law: A. Cassese, “From Nuremberg to Rome: International Military Tribunals to the International Criminal Court”, in A. Cassese, P. Gaeta and J. R. W. D. Jones, eds., The Rome Statute of the International Criminal Court: A Commentary, vol. I (2002), 3, at pp. 3-4; and E. van Sliedregt, Individual Criminal Responsibility in International Law (2012), at pp. 74-75.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-19", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "para 51", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "That said, we may not rely exclusively on the approach of the International Criminal Court (“ICC”) to complicity. Despite its importance, the Rome Statute cannot be considered as a complete codification of international criminal law. International criminal law derives from a diversity of sources which include the growing body of jurisprudence of international criminal courts: Cassese��s International Criminal Law, at pp. 9-21. Article 1F(a) of the Refugee Convention refers generally to international instruments and the ICC itself has relied on the jurisprudence of ad hoc tribunals to interpret its own statute: Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10-465-Red, Decision on the Confirmation of Charges, 16 December 2011 (ICC, Pre-Trial Chamber I), at para. 280. See also B. Goy, “Individual Criminal Responsibility before the International Criminal Court: A Comparison with the Ad Hoc Tribunals” (2012), 12 Int’l. Crim. L. Rev. 1, at p. 4. In Mugesera, at paras. 82 and 126, this Court highlighted the international law expertise of the ad hoc tribunals and explained that the decisions of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda “should not be disregarded lightly by Canadian courts applying domestic legislative provisions . . . which expressly incorporate customary international law”: para. 126. Accordingly, while our focus will remain on the most recent codification of international criminal law in the Rome Statute, we will also consider other sources, more particularly the jurisprudence of the ad hoc tribunals.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-20", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 52–53", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "As explained above, we are concerned here with the dividing line between mere association and culpable complicity. While further distinctions between modes of commission may be important for sentencing purposes, exclusion from refugee protection applies when there are serious reasons for considering that an individual has committed an international crime, whatever the mode of commission happens to be. Our task then is to identify threshold criteria for the application of the exclusionary clause, art. 1F(a) of the Refugee Convention. Accordingly, the broadest modes of commission recognized under current international criminal law are most relevant to our complicity analysis, namely, common purpose liability under art. 25(3)(d) of the Rome Statute and joint criminal enterprise developed in the ad hoc jurisprudence.\n\nThese two related modes have adapted the concept of individual criminal responsibility to the collective aspects of international crime. However, as the following analysis will show, individual criminal responsibility has not been stretched so far as to capture complicity by mere association or passive acquiescence. In other words, when we look to international criminal law for guidance, even the broadest modes of commission require a link between the individual and the crime or criminal purpose of a group. Therefore, to the extent that the Federal Court of Appeal’s reasons expand complicity under art. 1F(a) in such a way that it includes mere complicity by association or passive acquiescence, they should not be followed. We shall return below, in greater detail, to this issue. E. Common Purpose Under Article 25(3)(d) of the Rome Statute", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-21", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "para 54", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 25(3)(d) of the Rome Statute recognizes a broad residual mode of commission by capturing conduct that “[i]n any other way contributes” to a crime committed or attempted by a group acting with a common purpose: 3. . . . a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: . . . (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; See Cassese’s International Criminal Law, at pp. 175-76.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-22", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 55–56", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In other words, art. 25(3)(d) captures contributions to a crime where an individual did not have control over the crime and did not make an essential contribution as required for co-perpetration under art. 25(3)(a), did not incite, solicit or induce the crime under art. 25(3)(b), or did not intend to aid or abet a certain specific crime under art. 25(3)(c): Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment Pursuant to Article 74 of the Statute, 14 March 2012 (ICC, Trial Chamber I), at para. 999; Prosecutor v. William Samoei Ruto, ICC-01/09-01/11-373, Decision on the Confirmation of Charges, 23 January 2012 (ICC, Pre-Trial Chamber II), at para. 354; Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10-514, Judgment on the Prosecutor’s Appeal against the Decision on the Confirmation of Charges, 30 May 2012 (ICC, Appeals Chamber), at para. 8, per Judge Fernández de Gurmendi, concurring; Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, 29 January 2007 (ICC, Pre-Trial Chamber I), at para. 337; and Lafontaine, at pp. 237-38.\n\nThe actus reus under para. (d) is distinguishable from the preceding paragraphs under art. 25(3) primarily by the magnitude of contribution required. While the jurisprudence is not completely settled, a pre-trial chamber of the ICC has said that the level of contribution required by art. 25(3)(d) is lower than the forms of commission under paras. (a) to (c). Where commission under para. (a) requires an essential contribution, and para. (c) a substantial one, Pre-Trial Chamber I has concluded that art. 25(3)(d) requires only a significant contribution: Mbarushimana, at paras. 279-85.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-23", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 57–58", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the phrase “any other way” captures every imaginable contribution in a qualitative sense, it does not necessarily apply as broadly in a quantitative sense. Not every contribution, no matter how minor, will be caught by art. 25(3)(d). Setting the threshold at significant contribution is critical. As Pre-Trial Chamber I of the ICC said in Mbarushimana, at para. 277: . . . such a threshold is necessary to exclude contributions which, because of their level or nature, were clearly not intended by the drafters of the Statute to give rise to individual criminal responsibility. For instance, many members of a community may provide contributions to a criminal organisation in the knowledge of the group’s criminality, especially where such criminality is public knowledge. Without some threshold level of assistance, every landlord, every grocer, every utility provider, every secretary, every janitor or even every taxpayer who does anything which contributes to a group committing international crimes could satisfy the elements of 25(3)(d) liability for their infinitesimal contribution to the crimes committed.\n\nThe pre-trial chamber went on to explain that the significance of a contribution will depend on the facts of each case, “as it is only by examining a person’s conduct in proper context that a determination can be made as to whether a given contribution has a larger or smaller effect on the crimes committed”: Mbarushimana, at para. 284. On an appeal by the Prosecutor, the majority of the Appeals Chamber declined to determine the degree of contribution required under art. 25(3)(d): paras. 65-69.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-24", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 59–60", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "As for the mens rea requirement, the text of art. 25(3)(d) states that a contribution must be intentional, “made with the aim of furthering the criminal activity or purpose of the group” or “in the knowledge of the intention of the group to commit the crime”. The Pre-Trial Chamber I explained in Mbarushimana, at para. 289, that individuals may be complicit in crimes without possessing the mens rea required by the crime itself: Differently from aiding and abetting under article 25(3)(c) of the Statute, for which intent is always required, knowledge is sufficient to incur liability for contributing to a group of persons acting with a common purpose, under article 25(3)(d) of the Statute. Since knowledge of the group’s criminal intentions is sufficient for criminal responsibility, it is therefore not required for the contributor to have the intent to commit any specific crime and not necessary for him or her to satisfy the mental element of the crimes charged.\n\nWhile the subjective element under art. 25(3)(d) can take the form of intent (accused intends to contribute to a group’s criminal purpose) or knowledge (accused is aware of the group’s intention to commit crimes), recklessness is likely insufficient. The text of art. 25(3)(d) itself does not refer to conduct that might contribute to a crime or criminal purpose, and the mental element codified by art. 30 has been held to exclude dolus eventualis, that is, the awareness of a mere risk of prohibited consequences: Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 15 June 2009 (ICC, Pre-Trial Chamber II), at para. 360. We note that Pre-Trial Chamber I took a different view of art. 30 in Lubanga, at paras. 351-55.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-25", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 61–62", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "As the foregoing demonstrates, complicity under art. 25(3)(d) is not based on rank within or association with a group, but on intentionally or knowingly contributing to a group’s crime or criminal purpose. F. Joint Criminal Enterprise\n\nHaving considered the broadest form of accessory liability under the Rome Statute, we now turn to what is perhaps the broadest and most controversial mode of liability recognized by the ad hoc tribunals: joint criminal enterprise. See Cassese’s International Criminal Law, at pp. 163-75; Cryer, at p. 372.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-26", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 63–64", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Even though joint criminal enterprise is considered to be a form of principal liability, it is relevant to our task of setting threshold criteria for art. 1F(a) of the Refugee Convention. The line between principal and accessory is not necessarily drawn consistently across international and domestic criminal law. Joint criminal enterprise, like common purpose liability under art. 25(3)(d), captures “lesser” contributions to a crime than aiding and abetting. While aiding and abetting likely requires a substantial contribution to a certain specific crime, joint criminal enterprise and common purpose liability can arise from a significant contribution to a criminal purpose. To the extent that the ICTY Trial Chamber may be seen to have applied a more exacting standard in Prosecutor v. Jovica Stanišić, IT-03-69-T, Judgment, 30 May 2013 (ICTY, Trial Chamber I), it is not in accordance with prevailing appellate authority: Prosecutor v. Duško Tadić, IT-94-1-A, Judgment, 15 July 1999 (ICTY, Appeals Chamber), at para. 229, cited in Lafontaine, at p. 237; Prosecutor v. Radoslav Brđanin, IT-99-36-A, Judgment, 3 April 2007 (ICTY, Appeals Chamber), at paras. 427-28 and 430. Joint criminal enterprise therefore captures individuals who could easily be considered as secondary actors complicit in the crimes of others: Cryer, at p. 372; S. Manacorda and C. Meloni, “Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?” (2011), 9 J.I.C.J. 159, at pp. 166-67.\n\nIn Tadić, the ICTY articulated three forms of joint criminal enterprise: paras. 196-206. For all three, the actus reus is a “significant” contribution to the criminal enterprise: Brđanin, at para. 430.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-27", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 65–66", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, the mens rea varies for each form. The first form, JCE I, requires shared intent to perpetrate a certain crime. The second, JCE II, requires knowledge of a system of ill treatment and intent to further this system. The third, JCE III, requires intention to participate in and further the criminal activity or purpose of the group, and intent to contribute to the joint criminal enterprise or the commission of a crime by the group. Under JCE III, liability can extend to a crime other than one agreed to in the common plan if the accused intended to participate in and further the criminal activity of the group and (i) it was foreseeable that such a crime might be perpetrated by members of the group and (ii) the accused willingly took that risk. In other words, where an accused intends to contribute to the common purpose, JCE III captures not only knowing contributions but reckless contributions: see Tadić, at para. 228.\n\nDespite the overlap between joint criminal enterprise and art. 25(3)(d), ICC jurisprudence has kept the two modes distinct. Commentators suggest that JCE III will not play a role at the ICC, largely because of the recklessness component: van Sliedregt, at p. 101; Lafontaine, at p. 238; A. Cassese, “The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise” (2007), 5 J.I.C.J. 109, at p. 132; Manacorda and Meloni, at p. 176.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-28", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 67–69", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "For our purposes, we simply note that joint criminal enterprise, even in its broadest form, does not capture individuals merely based on rank or association within an organization or an institution: Cassese’s International Criminal Law, at p. 163. It requires that the accused have made, at a minimum, a significant contribution to the group’s crime or criminal purpose, made with some form of subjective awareness (whether it be intent, knowledge, or recklessness) of the crime or criminal purpose. In other words, this form of liability, while broad, requires more than a nexus between the accused and the group that committed the crimes. There must be a link between the accused’s conduct and the criminal conduct of the group: Brđanin, at paras. 427-28; Lafontaine, at p. 234; Cryer, at p. 369. G. Summary of Complicity Under International Law\n\nIn sum, while the various modes of commission recognized in international criminal law articulate a broad concept of complicity, individuals will not be held liable for crimes committed by a group simply because they are associated with that group, or because they passively acquiesced to the group’s criminal purpose. At a minimum, complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant way to the crime or criminal purpose of a group. H. Comparative Law and Decisions of Other National Courts\n\nOther state parties to the Refugee Convention have approached art. 1F(a) in a manner that adheres to the minimum requirements for complicity set by the international law principles discussed above.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-29", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 70–71", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In J.S., the U.K. Supreme Court rejected the presumption that an individual is complicit in war crimes if he joins an organization, even where that organization has a limited and brutal purpose. Lord Hope of Craighead D.P.S.C., concurring, stated that “mere membership of an organisation that is committed to the use of violence for political ends is not enough to bring an appellant within the exclusion clauses”: para. 43; see also paras. 31 and 44. Rather, as Lord Kerr of Tonaghmore J.S.C., also concurring, wrote, decision makers must “concentrate on the actual role played by the particular person, taking all material aspects of that role into account so as to decide whether the required degree of participation is established”: para. 55. In his view, this approach “accord[s] more closely . . . with the spirit of articles 25 and 30 of the ICC Rome Statute”: para. 57.\n\nAccording to J.S., an individual would only be excluded under art. 1F(a) “if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose”: para. 38.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-30", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 72–74", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "To assess the accused’s mental state and degree of participation, J.S. provides factors that are remarkably similar to those used by Canadian courts in art. 1F(a) cases: . . . (i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum seeker was himself most directly concerned, (ii) whether and, if so, by whom the organisation was proscribed, (iii) how the asylum seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it, (v) his position, rank, standing and influence in the organisation, (vi) his knowledge of the organisation’s war crimes activities, and (vii) his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes. [para. 30]\n\nThese factors are largely subsumed by the six “non-exhaustive” factors set out in Ryivuze v. Canada (Minister of Citizenship and Immigration), 2007 FC 134, 325 F.T.R. 30, at para. 38: (1) the nature of the organization; (2) the method of recruitment; (3) position/rank in the organization; (4) knowledge of the organization’s atrocities; (5) the length of time in the organization; and (6) the opportunity to leave the organization.\n\nThe factors recognized in U.K. and Canadian jurisprudence help guard against a complicity analysis that would exclude individuals from refugee protection on the basis of mere membership or failure to dissociate from a multifaceted organization which is committing war crimes.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-31", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "para 75", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Similarly, United States appellate jurisprudence on refugee exclusions does not recognize complicity based on passive acquiescence or “tangential” contributions. While the U.S. “persecutor bar” does not directly incorporate art. 1F(a), it nevertheless represents an approach to exclusion that would only capture those who have committed international crimes as recognized by international criminal law: A.F., at para. 167. A recent decision by the Second Circuit Court of Appeals said: . . . the mere fact that [a person] may be associated with an enterprise that engages in persecution is insufficient by itself to trigger the effects of the persecutor bar. As the Supreme Court’s oft-quoted dicta in Fedorenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981), illustrates, a “guilt by association” approach to the persecutor bar is improper. . . . . . . Before [a claimant] may be held personally accountable for assisting in acts of persecution, there must be some evidence that he himself engaged in conduct that assisted in the persecution of another. (Xu Sheng Gao v. United States Attorney General, 500 F.3d 93 (2007), at paras. 5-6, cited in P. Zambelli, “Problematic Trends in the Analysis of State Protection and Article 1F(a) Exclusion in Canadian Refugee Law” (2011), 23 Int’l. J. Refugee L. 252, at pp. 284-85.)", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-32", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 76–77", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In our view, the approach to complicity adopted by these state parties adheres to the UNHCR’s recommendation in its Guidelines, at para. 18, although it would ask for a “substantial” contribution: For exclusion to be justified, individual responsibility must be established in relation to a crime covered by Article 1F. . . . In general, individual responsibility flows from the person having committed, or made a substantial contribution to the commission of the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct. The individual need not physically have committed the criminal act in question. Instigating, aiding and abetting and participating in a joint criminal enterprise can suffice.\n\nIn sum, the foregoing approaches to complicity all require a nexus between the individual and the group’s crime or criminal purpose. An individual can be complicit without being present at the crime and without physically contributing to the crime. However, the UNHCR has explained, and other state parties have recognized, that to be excluded from the definition of refugee protection, there must be evidence that the individual knowingly made at least a significant contribution to the group’s crime or criminal purpose. Passive membership would not be enough, as indicated above in paras. 70-76. I. The Canadian Approach to Criminal Participation Has Been Overextended", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-33", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 78–79", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Before being overturned by the Federal Court of Appeal, the Federal Court’s decision in this case was viewed as a potential signal of “a clearer jurisprudence, more closely tied to international standards and to the original wording of the Convention”: A. Kaushal and C. Dauvergne, “The Growing Culture of Exclusion: Trends in Canadian Refugee Exclusions” (2011), 23 Int’l. J. Refugee L. 54, at p. 85. The Federal Court rightly concluded that neither mere membership in a government that had committed international crimes nor knowledge of those crimes is enough to establish complicity: para. 4.\n\nIn our view, the Federal Court’s approach in this case brings appropriate restraint to the test for complicity that had, in some cases, inappropriately shifted its focus towards the criminal activities of the group and away from the individual’s contribution to that criminal activity: see, for example, Osagie v. Canada (Minister of Citizenship and Immigration) (2000), 186 F.T.R. 143; Mpia-Mena-Zambili v. Canada (Minister of Citizenship and Immigration), 2005 FC 1349, 281 F.T.R. 54, at paras. 45-47; Fabela v. Canada (Minister of Citizenship and Immigration), 2005 FC 1028, 277 F.T.R. 20, at paras. 14-19. By answering “yes” to the certified question, the Federal Court of Appeal’s reasons could be seen as having endorsed an overextended approach to complicity, one that captures complicity by association or passive acquiescence.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-34", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 80–82", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "As Noël J.A. noted in this case, a senior official may be complicit in the government’s crimes “by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes”. Nonetheless, the Federal Court of Appeal reasons should not be improperly relied on to find complicity even where the individual has committed no guilty act and has no criminal knowledge or intent, beyond a mere awareness that other members of the government have committed illegal acts.\n\nIn our view, it is necessary to rearticulate the Canadian approach to art. 1F(a) to firmly foreclose exclusions based on such broad forms of complicity. Otherwise, high-ranking officials might be forced to abandon their legitimate duties during times of conflict and national instability in order to maintain their ability to claim asylum. Furthermore, a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles.\n\nIt is well established in international criminal law that criminal liability does not attach to omissions unless an individual is under a duty to act: Cassese’s International Criminal Law, at pp. 180-82. Accordingly, unless an individual has control or responsibility over the individuals committing international crimes, he or she cannot be complicit by simply remaining in his or her position without protest: Ramirez, at pp. 319-20. Likewise, guilt by association violates the principle of individual criminal responsibility. Individuals can only be liable for their own culpable conduct: van Sliedregt, at p. 17.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-35", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 83–86", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Accordingly, the decision of the Federal Court of Appeal should not be taken to leave room for rank-based complicity by association or passive acquiescence. Such a reading would perpetuate a departure from international criminal law and fundamental criminal law principles. J. The Canadian Test for Complicity Refined\n\nIn light of the foregoing reasons, it has become necessary to clarify the test for complicity under art. 1F(a). To exclude a claimant from the definition of “refugee” by virtue of art. 1F(a), there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose.\n\nWe will address these key components of the contribution-based test for complicity in turn. In our view, they ensure that decision makers do not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence. (1) Voluntary Contribution to the Crime or Criminal Purpose\n\nIt goes without saying that the contribution to the crime or criminal purpose must be voluntarily made. While this element is not in issue in this case, it is easy to foresee cases where an individual would otherwise be complicit in war crimes but had no realistic choice but to participate in the crime. To assess the voluntariness of a contribution, decision makers should, for example, consider the method of recruitment by the organization and any opportunity to leave the organization. The voluntariness requirement captures the defence of duress which is well recognized in customary international criminal law, as well as in art. 31(1)(d) of the Rome Statute: Cassese’s International Criminal Law, at pp. 215-16. (2) Significant Contribution to the Group’s Crime or Criminal Purpose", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-36", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 87–89", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In our view, mere association becomes culpable complicity for the purposes of art. 1F(a) when an individual makes a significant contribution to the crime or criminal purpose of a group. As Lord Brown J.S.C. said in J.S., to establish the requisite link between the individual and the group’s criminal conduct, the accused’s contribution does not have to be “directed to specific identifiable crimes” but can be directed to “wider concepts of common design, such as the accomplishment of an organisation’s purpose by whatever means are necessary including the commission of war crimes”: para. 38. This approach to art. 1F(a) is consistent with international criminal law’s recognition of collective and indirect participation in crimes discussed above, as well as s. 21(2) of the Canadian Criminal Code, R.S.C. 1985, c. C-46, which attaches criminal liability based on assistance in carrying out a common unlawful purpose.\n\nGiven that contributions of almost every nature to a group could be characterized as furthering its criminal purpose, the degree of the contribution must be carefully assessed. The requirement of a significant contribution is critical to prevent an unreasonable extension of the notion of criminal participation in international criminal law. (3) Knowing Contribution to the Crime or Criminal Purpose\n\nTo be complicit in crimes committed by the government, the official must be aware of the government’s crime or criminal purpose and aware that his or her conduct will assist in the furtherance of the crime or criminal purpose.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-37", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "para 90", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In our view, this approach is consistent with the mens rea requirement under art. 30 of the Rome Statute. Article 30(1) explains that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”. Article 30(2)(a) explains that a person has intent where he “means to engage in the conduct”. With respect to consequences, art. 30(2)(b) requires that the individual “means to cause that consequence or is aware that it will occur in the ordinary course of events”. Knowledge is defined in art. 30(3) as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events”. (4) Applying the Test", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-38", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "para 91", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Whether there are serious reasons for considering that an individual has committed international crimes will depend on the facts of each case. Accordingly, to determine whether an individual’s conduct meets the actus reus and mens rea for complicity, several factors may be of assistance. The following list combines the factors considered by courts in Canada and the U.K., as well as by the ICC. It should serve as a guide in assessing whether an individual has voluntarily made a significant and knowing contribution to a crime or criminal purpose: (i) the size and nature of the organization; (ii) the part of the organization with which the refugee claimant was most directly concerned; (iii) the refugee claimant’s duties and activities within the organization; (iv) the refugee claimant’s position or rank in the organization; (v) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization. See Ryivuze, at para. 38; J.S., at para. 30; and Mbarushimana, Decision on the Confirmation of Charges, at para. 284.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-39", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 92–93", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "When relying on these factors for guidance, the focus must always remain on the individual’s contribution to the crime or criminal purpose. Not only are the factors listed above diverse, they will also have to be applied to diverse circumstances encompassing different social and historical contexts. Refugee claimants come from many countries and appear before the Board with their own life experiences and backgrounds in their respective countries of origin. Thus, the assessment of the factors developed in our jurisprudence, the decisions of the courts of other countries, and the international community will necessarily be highly contextual. Depending on the facts of a particular case, certain factors will go “a long way” in establishing the requisite elements of complicity. Ultimately, however, the factors will be weighed with one key purpose in mind: to determine whether there was a voluntary, significant, and knowing contribution to a crime or criminal purpose.\n\nIn the present case, it will be for the Board to determine which factors are significant, based on the application before it. To provide guidance to the Board in making this determination, it may be of assistance to briefly elaborate on each of the factors listed above.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-40", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 94–95", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The size and nature of the organization. The size of an organization could help determine the likelihood that the claimant would have known of and participated in the crime or criminal purpose. A smaller organization could increase that likelihood. That likelihood could also be impacted by the nature of the organization. If the organization is multifaceted or heterogeneous, i.e. one that performs both legitimate and criminal acts, the link between the contribution and the criminal purpose will be more tenuous. In contrast, where the group is identified as one with a limited and brutal purpose, the link between the contribution and the criminal purpose will be easier to establish. In such circumstances, a decision maker may more readily infer that the accused had knowledge of the group’s criminal purpose and that his conduct contributed to that purpose. That said, even for groups with a limited and brutal purpose, the individual’s conduct and role within the organization must still be carefully assessed, on an individualized basis, to determine whether the contribution was voluntarily made and had a significant impact on the crime or criminal purpose of the group.\n\nThe part of the organization with which the refugee claimant was most directly concerned. This factor may be relevant if particular parts of the organization were known to be involved with the crime or criminal purpose. For example, where only one part of the organization in question was involved in the crime or criminal purpose, a claimant’s exclusive affiliation with another part(s) of the organization may serve to exonerate him or her for the purpose of art. 1F(a).", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-41", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 96–98", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The refugee claimant’s duties and activities within the organization. This factor is likely to be significant in any analysis of complicity, because it goes to the heart of a claimant’s day-to-day participation in the activities of the organization. The Board should consider the link between the duties and activities of a claimant, and the crimes and criminal purposes of the organization.\n\nThe refugee claimant’s position or rank in the organization. A high ranking individual in an organization may be more likely to have knowledge of that organization’s crime or criminal purpose. In some cases, a high rank or rapid ascent through the ranks of an organization could evidence strong support of the organization’s criminal purpose. Moreover, by virtue of their position or rank, individuals may have effective control over those directly responsible for criminal acts, possibly engaging art. 28 of the Rome Statute.\n\nThe length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose. It may be easier to establish complicity where an individual has been involved with the organization for a longer period of time. This would increase the chance that the individual had knowledge of the organization’s crime or criminal purpose. A lengthy period of involvement may also increase the significance of an individual’s contribution to the organization’s crime or criminal purpose.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-42", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 99–100", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization. As mentioned, these two factors directly impact the voluntariness requirement. This requirement may not be satisfied if an individual was coerced into joining, supporting, or remaining in the organization. Similarly, an individual’s involvement with an organization may not be voluntary if he or she did not have the opportunity to leave, especially after acquiring knowledge of its crime or criminal purpose. The Board may wish to consider whether the individual’s specific circumstances (i.e. location, financial resources, and social networks) would have eased or impeded exit.\n\nWe reiterate that the factors discussed above should be relied on only for guidance. We agree with Lord Kerr J.S.C.’s statement in J.S., at para. 55: . . . they are not necessarily exhaustive of the matters to be taken into account, nor will each of the factors be inevitably significant in every case. One needs, I believe, to concentrate on the actual role played by the particular person, taking all material aspects of that role into account so as to decide whether the required degree of participation is established. A full contextual analysis would necessarily include any viable defences, including, but certainly not limited to, the defence of duress, discussed above. K. Evidentiary Standard: Serious Reasons for Considering", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-43", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "para 101", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Ultimately, the above contribution-based test for complicity is subject to the unique evidentiary standard contained in art. 1F(a) of the Refugee Convention. To recall, the Board does not make determinations of guilt. Its exclusion decisions are therefore not based on proof beyond a reasonable doubt nor on the general civil standard of the balance of probabilities. Rather, art. 1F(a) directs it to decide whether there are “serious reasons for considering” that an individual has committed war crimes, crimes against humanity or crimes against peace. For guidance on applying the evidentiary standard, we agree with Lord Brown J.S.C.’s reasons in J.S., at para. 39: It would not, I think, be helpful to expatiate upon article 1F’s reference to there being “serious reasons for considering” the asylum seeker to have committed a war crime. Clearly the tribunal in Gurung’s case [2003] Imm AR 115 (at the end of para 109) was right to highlight “the lower standard of proof applicable in exclusion clause cases” — lower than that applicable in actual war crimes trials. That said, “serious reasons for considering” obviously imports a higher test for exclusion than would, say, an expression like “reasonable grounds for suspecting”. “Considering” approximates rather to “believing” than to “suspecting”. I am inclined to agree with what Sedley LJ said in Al-Sirri v Secretary of State for the Home Department [2009] Imm AR 624, para 33: “[The phrase used] sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says.”", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-13184-44", - "doc_type": "caselaw", - "act_code": "2013 SCC 40", - "act_short": "Ezokola", - "act_name": "Ezokola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", - "marginal_note": "paras 102–103", - "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In our view, this unique evidentiary standard is appropriate to the role of the Board and the realities of an exclusion decision addressed above. The unique evidentiary standard does not, however, justify a relaxed application of fundamental criminal law principles in order to make room for complicity by association. III. Conclusion\n\nFor the foregoing reasons, we would allow the appeal, with costs throughout, and remit the matter to the Refugee Protection Division of the Immigration and Refugee Board for redetermination in accordance with these reasons. A new panel shall apply the contribution-based test for complicity outlined above. A detailed assessment is required to determine whether the particular facts of this case establish serious reasons for considering that the actus reus and mens rea for complicity are present and therefore justify excluding the appellant from the definition of refugee by operation of art. 1F(a) of the Refugee Convention. Appeal allowed with costs throughout.", - "current_to": "2013-07-19", - "last_amended": "", - "history": "[2013] 2 SCR 678", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" - }, - { - "id": "scc-15665-1", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 1–3", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Abella J. — The Immigration and Refugee Protection Act [1] consists of a number of moving parts intended to work together to ensure a fair and humane immigration system for Canada. One of those parts is refugee policy. Under s. 25(1) of the Act, the Minister has a discretion to exempt foreign nationals from the Act’s requirements if the exemption is justified by humanitarian and compassionate considerations, including the best interests of any child directly affected. The issue in this appeal is whether a decision to deny relief under s. 25(1) to a 17-year-old applicant was a reasonable exercise of the humanitarian and compassionate discretion. In my respectful view, it was not. Background\n\nJeyakannan Kanthasamy is a Tamil from northern Sri Lanka. In April 2010, fearing for his safety after he was subjected to detention and questioning by the army and the police, his family arranged for him to travel to Canada to live with his uncle. He was 16 years old.\n\nWhen he arrived in Canada, he made a claim for refugee protection under ss. 96 and 97, which permit applicants to seek refugee status based on a “well-founded” fear of persecution. His claim was based on a fear that because he is a Tamil, the army, the Eelam People’s Democratic Party, the police, or others would arrest or harm him upon his return to Sri Lanka on suspicion that he supports the Liberation Tigers of Tamil Eelam. The Immigration and Refugee Board refused his claim in February 2011, concluding that the authorities in Sri Lanka had taken steps to improve the situation of Tamils, and that he did not have a profile that would put him at risk if he were returned to that country.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-2", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 4–6", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "In August 2011, he applied for a pre-removal risk assessment, which determines whether an applicant can safely be removed from Canada. The process assesses new risk developments arising after the refugee hearing, but is not a second refugee determination hearing: Martin Jones and Sasha Baglay, Refugee Law (2007), at p. 332. The Officer who decided his pre-removal risk assessment found that Jeyakannan Kanthasamy was credible and accepted the evidence that young Tamils faced discrimination and harassment in Sri Lanka. But she concluded that since this treatment did not rise to the level of persecution, his application should be rejected.\n\nAround the same time, he also filed an application for humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act , seeking to apply for permanent resident status from within Canada. He was then 17 years old. The denial of relief would result in his removal from Canada.\n\nThe Officer who reviewed the application concluded that the relief was not justified by humanitarian and compassionate considerations. Drawing on language set out in Guidelines prepared by the Minister, the Officer said she was “not satisfied that return to Sri Lanka would result in hardship that is unusual and undeserved or disproportionate”.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-3", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 7–9", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "On judicial review, the Federal Court held that the test was whether the hardship was “unusual and undeserved or disproportionate” in accordance with the Guidelines, and found that the Officer’s decision to deny relief was reasonable. The Federal Court of Appeal largely agreed with both the test and the result. While it concluded that s. 25(1) was not intended to duplicate refugee proceedings, the evidence from those proceedings can nonetheless be considered for the purpose of determining whether the applicant will face “unusual and undeserved, or disproportionate hardship” if returned to the foreign state.\n\nFor the following reasons, I do not, with respect, agree with the conclusion that the Officer’s decision was reasonable. Analysis\n\nThe Immigration and Refugee Protection Act governs the admissibility, eligibility and removal of non-citizens. Under the Act and its accompanying regulations, foreign nationals — individuals who are neither citizens nor permanent residents — seeking permanent resident status must apply for and obtain a visa before entering Canada: Immigration and Refugee Protection Act , s. 11(1) ; Immigration and Refugee Protection Regulations, SOR/2002-227, s. 6. A permanent resident visa may be issued where the foreign national is not inadmissible and meets the requirements of the Act: Immigration and Refugee Protection Act , s. 11(1) .", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-4", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 10–11", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 25(1) of the Immigration and Refugee Protection Act gives the Minister discretion to exempt foreign nationals from the ordinary requirements of the Act if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations. Those considerations are to include the best interests of a child directly affected. At the relevant time, s. 25(1) stated: 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. A brief history helps explain the purpose of humanitarian and compassionate relief under this provision.\n\nUnder the 1952 Immigration Act, R.S.C. 1952, c. 325, the Minister had an almost unlimited discretion to allow individuals into Canada: Freda Hawkins, Canada and Immigration: Public Policy and Public Concern (1972), at pp. 101-3. Although humanitarian and compassionate considerations were not explicitly part of the legislative scheme at the time, the Minister retained the authority to issue permits to allow certain applicants to remain in Canada: Immigration Act (1952), s. 8. These permits “introduced an element of flexibility and humanitarianism into the administration of immigration law”: Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470, at p. 476.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-5", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 12", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "A discretion to grant relief on the basis of humanitarian and compassionate considerations became an express part of the legislative scheme in the Immigration Appeal Board Act, S.C. 1966-67, c. 90, which created a quasi-judicial, independent Immigration Appeal Board. Section 15(1) of the Immigration Appeal Board Act gave the new Board the power to stay or quash a deportation order based on “compassionate or humanitarian considerations that in the opinion of the Board warrant the granting of special relief”: s. 15(1)(b)(ii). The reason for this power was explained by John Munro, then Parliamentary Secretary for the Minister of Manpower and Immigration: The law establishes general rules as to who may come to Canada and who may stay in Canada. The rules necessarily are general. They cannot precisely accommodate all the variety of individual circumstances. They must be capable of being tempered in their application, according to the merits of individual cases. There will sometimes be humanitarian or compassionate reasons for admitting people who, under the general rules, are inadmissible. [Emphasis added.] (House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, at p. 13267)", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-6", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 13–14", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The meaning of the phrase “humanitarian and compassionate considerations” was first discussed by the Immigration Appeal Board in the case of Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338. The first Chair of the Board, Janet Scott, held that humanitarian and compassionate considerations refer to “those facts, established by the evidence, which would excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another — so long as these misfortunes ‘warrant the granting of special relief’ from the effect of the provisions of the Immigration Act”: p. 350. This definition was inspired by the dictionary definition of the term “compassion”, which covers “sorrow or pity excited by the distress or misfortunes of another, sympathy”: Chirwa, at p. 350. The Board acknowledged that “this definition implies an element of subjectivity”, but said there also had to be objective evidence upon which special relief ought to be granted: Chirwa, at p. 350.\n\nThe Chirwa test was crafted not only to ensure the availability of compassionate relief, but also to prevent its undue overbreadth. As the Board said: It is clear that in enacting s. 15 (1) (b) (ii) Parliament intended to give this Court the power to mitigate the rigidity of the law in an appropriate case, but it is equally clear that Parliament did not intend s. 15 (1) (b) (ii) of the Immigration Appeal Board Act to be applied so widely as to destroy the essentially exclusionary nature of the Immigration Act and Regulations. [p. 350]", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-7", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 15–16", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "In proceedings before the Special Joint Committee of the Senate and the House of Commons on Immigration Policy in 1975, Janet Scott elaborated on the importance of being able to guard against the unfairness of deportation in certain cases: . . . it was recognized that deportation might fall with much more force on some persons . . . than on others, because of their particular circumstances, and the Board was therefore empowered to mitigate the rigidity of the law in an appropriate case. Section 15 is a humanitarian and equitable section, which gives the Board power to do what the legislator cannot do, that is, take account of particular cases. [Emphasis added.] (Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on Immigration Policy, Issue No. 49, 1st Sess., 30th Parl., September 23, 1975, at p. 12)\n\nIn 1977, Parliament passed comprehensive immigration reforms that introduced humanitarian and compassionate discretion into other areas of the immigration scheme: Immigration Act, 1976, S.C. 1976-77, c. 52. Notably, under s. 115(2), the Governor in Council was given broad authority to facilitate the admission of “any person” on the basis of humanitarian or compassionate considerations: 115. (2) The Governor in Council may by regulation exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Governor in Council is satisfied that the person should be exempted from such regulation or his admission should be facilitated for reasons of public policy or due to the existence of compassionate or humanitarian considerations.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-8", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 17–18", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The role of this discretion was explained by this Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: [The] words [humanitarian and compassionate considerations] and their meaning must be central in determining whether an individual [humanitarian and compassionate] decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person’s admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner. This Court has found that it is necessary for the Minister to consider [a humanitarian and compassionate] request when an application is made . . . . Similarly, when considering it, the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations. [Emphasis deleted; citation omitted; para. 66.]\n\nMore recently, in 2001, Parliament passed another set of comprehensive reforms by enacting the Immigration and Refugee Protection Act . The humanitarian and compassionate discretion previously found in s. 115(2) of the Immigration Act, 1976 was incorporated into the new s. 25(1): United States of America v. Johnson (2002), 62 O.R. (3d) 327 (C.A.), at para. 47; Diarra v. Canada (Minister of Citizenship and Immigration), 2006 FC 1515, at para. 8 (CanLII); Love v. Canada (Minister of Citizenship and Immigration) (2004), 43 Imm. L.R. (3d) 111 (F.C.), at para. 15.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-9", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 19–20", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Legislative Summary of Bill C-11, the Bill that led to the enactment of the Immigration and Refugee Protection Act , explained that s. 25 “continue[d] the important power of the Minister to override the provisions of the Act and grant permanent residence, or an exemption from any applicable criteria or obligation under the Act, on humanitarian and compassionate grounds or for reasons of public policy”: Library of Parliament, “Bill C-11: The Immigration and Refugee Protection Act ”, Legislative Summary LS-397E, by Jay Sinha and Margaret Young, March 26, 2001, at p. 12 (footnote omitted); Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, at para. 41. The humanitarian and compassionate discretion in s. 25(1) was, therefore, like its predecessors, seen as being a flexible and responsive exception to the ordinary operation of the Act, or, in the words of Janet Scott, a discretion “to mitigate the rigidity of the law in an appropriate case”.\n\nAs noted, Chirwa was decided in the context of an appeal to the Immigration Appeal Board under s. 15 of the Immigration Appeal Board Act. Under the current legislative scheme, the Immigration Appeal Division can similarly exercise that discretion for a number of statutorily defined purposes: see ss. 62 to 71 of the Immigration and Refugee Protection Act . The exercise of humanitarian and compassionate discretion under s. 25(1) of the Immigration and Refugee Protection Act , on the other hand, is limited to situations where a foreign national applies for permanent residency but is inadmissible or does not meet the requirements of the Immigration and Refugee Protection Act .", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-10", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 21–24", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "But as the legislative history suggests, the successive series of broadly worded “humanitarian and compassionate” provisions in various immigration statutes had a common purpose, namely, to offer equitable relief in circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”: Chirwa, at p. 350.\n\nThat purpose was furthered in Ministerial Guidelines designed to assist officers in determining whether humanitarian and compassionate considerations warrant relief under s. 25(1). They state that the determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate application under s. 25(1), is done by an “assessment of hardship”.\n\nThere will inevitably be some hardship associated with being required to leave Canada. This alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds under s. 25(1): see Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463, at para. 13 (CanLII); Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. 206 (F.C.T.D), at para. 12. Nor was s. 25(1) intended to be an alternative immigration scheme: House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at 15:40 (Peter MacDougall); see also Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001, at 9:55 to 10:00 (Joan Atkinson).\n\nAnd, as is stated in s. 25(1.3), added to the Act in 2010 (S.C. 2010, c. 8), s. 25(1) is not meant to duplicate refugee proceedings under s. 96 or s. 97(1), which assess whether the applicant has established a well-founded fear of persecution, risk of torture, risk to life, or risk of cruel and unusual treatment or punishment.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-11", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 25–26", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "What does warrant relief will clearly vary depending on the facts and context of the case, but officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them: Baker, at paras. 74-75.\n\nAccording to the Guidelines, applicants must demonstrate either “unusual and undeserved” or “disproportionate” hardship for relief under s. 25(1) to be granted. “Unusual and undeserved hardship” is defined as hardship that is “not anticipated or addressed” by the Immigration and Refugee Protection Act or its regulations, and is “beyond the person’s control”. “Disproportionate hardship” is defined as “an unreasonable impact on the applicant due to their personal circumstances”: Citizenship and Immigration Canada, Inland Processing, “IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds” (online), s. 5.10.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-12", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 27", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Guidelines further explain the application of the “unusual and undeserved or disproportionate hardship” standard by setting out a non-exhaustive list of factors that may be relevant: 5.11. Factors to consider in assessment of hardship [Section 25(1)] provides the flexibility to grant exemptions to overcome the requirement of obtaining a permanent residence visa from abroad, to overcome class eligibility requirements and/or inadmissibilities, on humanitarian and compassionate grounds. Officers must assess the hardship that would befall the applicant should the requested exemption not be granted. Applicants may base their requests for [humanitarian and compassionate] consideration on any number of factors including, but not limited to: • establishment in Canada; • ties to Canada; • the best interests of any children affected by their application; • factors in their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not described in [ss. 96 and 97]); • health considerations; • family violence considerations; • consequences of the separation of relatives; • inability to leave Canada has led to establishment; and/or • any other relevant factor they wish to have considered not related to [ss. 96 and 97]. [Emphasis added.] (Inland Processing, s. 5.11)", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-13", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 28", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Guidelines confirm that the humanitarian and compassionate determination under s. 25(1) is a global one, and that relevant considerations are to be weighed cumulatively as part of the determination of whether relief is justified in the circumstances: . . . the officer should assess all facts in the application and decide whether a refusal to grant the request for an exemption would, more likely than not, result in unusual and undeserved or disproportionate hardship. . . . Individual [humanitarian and compassionate] factors put forward by the applicant should not be considered in isolation in a determination of the hardship that an applicant would face; rather, hardship is determined as a result of a global assessment of [humanitarian and compassionate] considerations put forth by the applicant. In other words, hardship is assessed by weighing together all of the [humanitarian and compassionate] considerations submitted by the applicant. [Emphasis added.] (Inland Processing, ss. 5.8 and 5.10)", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-14", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 29", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "To date, there appear to be two schools of thought on how to approach the factors to be considered in assessing whether humanitarian and compassionate considerations apply under s. 25(1). A number of Federal Court decisions have implicitly rejected the language in Chirwa and have, instead, treated the Guidelines, and the words “unusual and undeserved or disproportionate hardship”, as setting out the test the applicant must meet in order to receive an exemption on the basis of humanitarian and compassionate grounds. In Flores v. Canada (Minister of Citizenship and Immigration), 2013 FC 1002, for example, the Federal Court talks about unusual and undeserved or disproportionate as being the “correct test” in humanitarian and compassionate applications: paras. 36-39 (CanLII). Similarly, in Sivagurunathan v. Canada (Minister of Citizenship and Immigration), 2013 FC 233, the Federal Court noted that it was the applicant’s burden to satisfy the immigration officer that there was unusual and undeserved or disproportionate hardship: para. 13 (CanLII). The Federal Court observed that “[t]his is the test” and that the disadvantages demonstrated by the applicant had to meet this threshold: para. 13. Also see Park v. Canada (Minister of Citizenship and Immigration), 2012 FC 528, at paras. 46-47 (CanLII).", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-15", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 30", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "A second approach is found in decisions which treat Chirwa less categorically, using the language in Chirwa as co-extensive with the Guidelines: see Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956, at paras. 16-17 (CanLII); Chen v. Canada (Minister of Citizenship and Immigration), 232 F.T.R. 118, at para. 15. In these decisions, the Federal Court and Federal Court of Appeal have made it clear that the Guidelines and the “unusual and undeserved or disproportionate hardship” threshold merely provide assistance to the immigration officer but that they should not be interpreted as fettering the immigration officer’s discretion to consider factors other than those listed in the Guidelines. In Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555, the Federal Court of Appeal noted that the Guidelines are “not meant as ‘hard and fast’ rules” and are, rather, “an attempt to provide guidance to decision makers when they exercise their discretion”: para. 9. And in Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 621, the Federal Court noted that humanitarian and compassionate considerations “are not limited . . . to hardship” and that the “Guidelines can only be of limited use because they cannot fetter the discretion given by Parliament”: paras. 10 and 12 (CanLII).", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-16", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 31–32", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "This second approach, which seems to me to be more consistent with the goals of s. 25(1), focuses more on the equitable underlying purpose of the humanitarian and compassionate relief application process. It sees the words in the Guidelines as being helpful in assessing when relief should be granted in a given case, but does not treat them as the only possible formulation of when there are humanitarian and compassionate grounds justifying the exercise of discretion.\n\nThere is no doubt, as this Court has recognized, that the Guidelines are useful in indicating what constitutes a reasonable interpretation of a given provision of the Immigration and Refugee Protection Act : Agraira, at para. 85. But as the Guidelines themselves acknowledge, they are “not legally binding” and are “not intended to be either exhaustive or restrictive”: Inland Processing, s. 5. Officers can, in other words, consider the Guidelines in the exercise of their s. 25(1) discretion, but should turn “[their] mind[s] to the specific circumstances of the case”: Donald J. M. Brown and The Honourable John M. Evans with the assistance of Christine E. Deacon, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 12-45. They should not fetter their discretion by treating these informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion granted by s. 25(1): see Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, at p. 5; Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 (C.A.), at para. 71.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-17", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 33–34", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The words “unusual and undeserved or disproportionate hardship” should therefore be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1). As a result, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of “unusual and undeserved or disproportionate hardship” in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.\n\nThis brings us to the fact that s. 25(1) refers to the need to take “into account the best interests of a child directly affected”. In Agraira, LeBel J. noted that these interests include “such matters as children’s rights, needs, and best interests; maintaining connections between family members; and averting the hardship a person would suffer on being sent to a place where he or she has no connections”: para. 41. As the Guidelines note, the “best interests” principle applies to all children under 18 years of age:[2] In an examination of the circumstances of a foreign national under [s. 25(1)], [the Immigration and Refugee Protection Act ] introduces a statutory obligation to take into account the best interests of a child who is directly affected by a decision under this section. This codifies departmental practice into legislation, eliminating any doubt that the interests of a child will be taken into account. This applies to children under the age of 18 years as per the Convention on the Rights of the Child. (Inland Processing, s. 5.12)", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-18", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 35–37", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The “best interests” principle is “highly contextual” because of the “multitude of factors that may impinge on the child’s best interest”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, at para. 11; Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 20. It must therefore be applied in a manner responsive to each child’s particular age, capacity, needs and maturity: see A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, at para. 89. The child’s level of development will guide its precise application in the context of a particular case.\n\nProtecting children through the “best interests of the child” principle is widely understood and accepted in Canada’s legal system: A.B. v. Bragg Communications Inc., [2012] 2 S.C.R. 567, at para. 17. It means “[d]eciding what . . . appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention”: MacGyver v. Richards (1995), 22 O.R. (3d) 481 (C.A.), at p. 489.\n\nInternational human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, also stress the centrality of the best interests of a child: Can. T.S. 1992 No. 3; Baker, at para. 71. Article 3(1) of the Convention in particular confirms the primacy of the best interests principle: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-19", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 38", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Even before it was expressly included in s. 25(1), this Court in Baker identified the “best interests” principle as an “important” part of the evaluation of humanitarian and compassionate grounds. As this Court said in Baker: . . . attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for [a humanitarian and compassionate] decision to be made in a reasonable manner. . . . . . . for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying [a humanitarian and compassionate] claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. [paras. 74-75]", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-20", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 39–40", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "A decision under s. 25(1) will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered: Baker, at para. 75. This means that decision-makers must do more than simply state that the interests of a child have been taken into account: Hawthorne, at para. 32. Those interests must be “well identified and defined” and examined “with a great deal of attention” in light of all the evidence: Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.), at paras. 12 and 31; Kolosovs v. Canada (Minister of Citizenship and Immigration), 323 F.T.R. 181, at paras. 9-12.\n\nWhere, as here, the legislation specifically directs that the best interests of a child who is “directly affected” be considered, those interests are a singularly significant focus and perspective: A.C., at paras. 80-81. The Minister’s Guidelines set out relevant considerations for this inquiry: Generally, factors relating to a child’s emotional, social, cultural and physical welfare should be taken into account when raised. Some examples of factors that applicants may raise include but are not limited to: • the age of the child; • the level of dependency between the child and the [humanitarian and compassionate] applicant or the child and their sponsor; • the degree of the child’s establishment in Canada; • the child’s links to the country in relation to which the [humanitarian and compassionate] assessment is being considered; • the conditions of that country and the potential impact on the child; • medical issues or special needs the child may have; • the impact to the child’s education; and • matters related to the child’s gender. (Inland Processing, s. 5.12)", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-21", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 41–42", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is difficult to see how a child can be more “directly affected” than where he or she is the applicant. In my view, the status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in the analysis, it should also influence the manner in which the child’s other circumstances are evaluated. And since “[c]hildren will rarely, if ever, be deserving of any hardship”, the concept of “unusual and undeserved hardship” is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief: Hawthorne, at para. 9. Because children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief: see Kim v. Canada (Citizenship and Immigration), [2011] 2 F.C.R. 448 (F.C.), at para. 58; UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, December 22, 2009. Application\n\nIn considering the standard of review, this Court “step[s] into the shoes” of the reviewing court: Agraira, at para. 46. This means that the question for this Court is whether the reviewing court identified the appropriate standard of review and applied it properly: Agraira, at para. 45.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-22", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 43–44", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case, the Federal Court applied a reasonableness standard. The Federal Court of Appeal, however, concluded that the appropriate standard of review was correctness because there was a certified question. It suggested that this Court’s approach in Agraira, where the standard of review was reasonableness despite the presence of a certified question, was at odds with the prior case law. I respectfully disagree.\n\nThe Federal Court of Appeal refers to one case from this Court to support this point: Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706. This case is not particularly helpful. It was decided before Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, there was no discussion of the impact of a certified question on the issue of standard of review, and the parties asked that correctness be applied: para. 71. In any event, the case law from this Court confirms that certified questions are not decisive of the standard of review: Baker, at para. 58; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at para. 23. As the Court said in Baker, at para. 12, the certification of a question of general importance may be the “trigger” by which an appeal is permitted. The subject of the appeal is still the judgment itself, not merely the certified question. The fact that the reviewing judge in this case considered the question to be of general importance is relevant, but not determinative. Despite the presence of a certified question, the appropriate standard of review is reasonableness: Baker, at para. 62.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-23", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 45", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Applying that standard, in my respectful view, the Officer failed to consider Jeyakannan Kanthasamy’s circumstances as a whole, and took an unduly narrow approach to the assessment of the circumstances raised in the application. She failed to give sufficiently serious consideration to his youth, his mental health and the evidence that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach, assessed each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”, then appeared to discount each from her final conclusion because it failed to satisfy that threshold. Her literal obedience to those adjectives, which do not appear anywhere in s. 25(1), rather than looking at his circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of improperly restricting her discretion and rendering her decision unreasonable.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-24", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 46–47", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "In discussing the effect removal would have on Jeyakannan Kanthasamy’s mental health, for example, the Officer said she “[did] not dispute the psychological report” and “accept[ed] the diagnosis”. The report concluded that he suffered from post-traumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood resulting from his experiences in Sri Lanka, and that his condition would deteriorate if he was removed from Canada. The Officer nonetheless inexplicably discounted the report: . . . the applicant has provided insufficient evidence that he has been or is currently in treatment regarding the aforementioned issues or that he could not obtain treatment if required in his native Sri Lanka or that in doing so it would amount to hardship that is unusual and undeserved or disproportionate.\n\nHaving accepted the psychological diagnosis, it is unclear why the Officer would nonetheless have required Jeyakannan Kanthasamy to adduce additional evidence about whether he did or did not seek treatment, whether any was even available, or what treatment was or was not available in Sri Lanka. Once she accepted that he had post-traumatic stress disorder, adjustment disorder, and depression based on his experiences in Sri Lanka, requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-25", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 48", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Moreover, in her exclusive focus on whether treatment was available in Sri Lanka, the Officer ignored what the effect of removal from Canada would be on his mental health. As the Guidelines indicate, health considerations in addition to medical inadequacies in the country of origin, may be relevant: Inland Processing, s. 5.11. As a result, the very fact that Jeyakannan Kanthasamy’s mental health would likely worsen if he were to be removed to Sri Lanka is a relevant consideration that must be identified and weighed regardless of whether there is treatment available in Sri Lanka to help treat his condition: Davis v. Canada (Minister of Citizenship and Immigration) (2011), 96 Imm. L.R. (3d) 267 (F.C.); Martinez v. Canada (Minister of Citizenship and Immigration) (2012), 14 Imm. L.R. (4th) 66 (F.C.). As previously noted, Jeyakannan Kanthasamy was arrested, detained and beaten by the Sri Lankan police which left psychological scars. Yet despite the clear and uncontradicted evidence of such harm in the psychological report, in applying the “unusual and undeserved or disproportionate hardship” standard to the individual factor of the availability of medical care in Sri Lanka — and finding that seeking such care would not meet that threshold — the Officer discounted Jeyakannan Kanthasamy’s health problems in her analysis.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-26", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 49–50", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "And while the Officer did not “dispute the psychological report presented”, she found that the medical opinion “rest[ed] mainly on hearsay” because the psychologist was “not a witness of the events that led to the anxiety experienced by the applicant”. This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to some degree on “hearsay”. Only rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports from professionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significant evidence. In any event, a psychologist need not be an expert on country conditions in a particular country to provide expert information about the probable psychological effect of removal from Canada.\n\nThe Officer applied a similarly constricted approach to her analysis of whether Jeyakannan Kanthasamy would face discrimination. The Officer took particular note of s. 25(1.3), which led her to decline to consider elements of his application that related to “fear of persecution, torture, risk to life or cruel and unusual treatment . . . on the basis of his race and nationality” as a young Tamil, which she suggested are part of the determination of refugee status or the pre-removal risk assessment.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-27", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 51–52", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "As the Federal Court of Appeal concluded in this case, s. 25(1.3) does not prevent the admission into evidence of facts adduced in proceedings under ss. 96 and 97. The role of the officer making a determination under s. 25(1) is to ask whether this evidence, along with any other evidence an applicant wishes to raise, though insufficient to support a s. 96 or s. 97 claim, nonetheless suggests that “humanitarian and compassionate considerations” warrant an exemption from the normal application of the Immigration and Refugee Protection Act . In other words, the officer does not determine whether a well-founded fear of persecution, risk to life, and risk of cruel and unusual treatment or punishment has been established — those determinations are made under ss. 96 and 97 — but he or she can take the underlying facts into account in determining whether the applicant’s circumstances warrant humanitarian and compassionate relief.\n\nThe Officer agreed to consider the hardship Jeyakannan Kanthasamy would likely endure as discrimination in Sri Lanka against young Tamil men. She also accepted evidence that there was discrimination against Tamils in Sri Lanka, particularly against young Tamil men from the north, who are routinely targeted by police. In her view, however, young Tamils are targeted only where there is suspicion of ties to the Liberation Tigers of Tamil Eelam, and the government had been making efforts to improve the situation for Tamils. She concluded that “the onus remains on the applicant to demonstrate that these country conditions would affect him personally”.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-28", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 53–54", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "This effectively resulted in the Officer concluding that, in the absence of evidence that Jeyakannan Kanthasamy would be personally targeted by discriminatory action, there was no evidence of discrimination. With respect, the Officer’s approach failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Discrimination for the purpose of humanitarian and compassionate applications “could manifest in isolated incidents or permeate systemically”, and even “[a] series of discriminatory events that do not give rise to persecution must be considered cumulatively”: Jamie Chai Yun Liew and Donald Galloway, Immigration Law (2nd ed. 2015), at p. 413, citing Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633.\n\nHere, however, the Officer required Jeyakannan Kanthasamy to present direct evidence that he would face such a risk of discrimination if deported. This not only undermines the humanitarian purpose of s. 25(1), it reflects an anemic view of discrimination that this Court largely eschewed decades ago: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 173-74; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, at paras. 318-19 and 321-38.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-29", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 55", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Even the Guidelines, expressly relying on this Court’s decision in Andrews, encourage an approach to discrimination that does not require evidence that the applicant will be personally targeted: 5.16. [Humanitarian and compassionate] and hardship: Factors in the country of origin to be considered While [ss. 96 and 97] factors may not be considered, the decision-maker must take into account elements related to the hardships that affect the foreign national. Some examples of what those “hardships” may include are: . . . • discrimination which does not amount to persecution; • adverse country conditions that have a direct negative impact on the applicant. . . . Discrimination Discrimination is: A distinction based on the personal characteristics of an individual that results in some disadvantage to that individual. In Andrews, [the] Court wrote: “Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.” (Inland Processing, s. 5.16)", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-30", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 56–57", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "As these passages suggest, applicants need only show that they would likely be affected by adverse conditions such as discrimination. Evidence of discrimination experienced by others who share the applicant’s identity is therefore clearly relevant under s. 25(1), whether or not the applicant has evidence of being personally targeted, and reasonable inferences can be drawn from those experiences. Rennie J. persuasively explained the reasons for permitting reasonable inferences in such circumstances in Aboubacar v. Canada (Minister of Citizenship and Immigration), 2014 FC 714: While claims for humanitarian and compassionate relief under section 25 must be supported by evidence, there are circumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicant would face on return . . . . This is not speculation, rather it is a reasoned inference, of a non-speculative nature, as to the hardship an individual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis . . . . [para. 12 (CanLII)]\n\nFinally, even though Jeyakannan Kanthasamy’s current age makes this issue one that no longer requires intervention, the Officer’s analysis of the “best interests” factor cannot be characterized as anything other than perfunctory. She simply stated, in a single paragraph, that Jeyakannan Kanthasamy’s best interests lay in returning to Sri Lanka where he had grown up and where his immediate family continued to reside. In my view, this fails to accord with the “serious weight and consideration” this Court in Baker identified as essential to a proper appreciation of a child’s best interests: para. 65.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-31", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 58", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "At no point did the Officer appear to turn her mind to how his status as a child affected the evaluation of the other evidence raised in his application. Instead, she atomized her evaluation of each of the other elements of his application, referring to his status as a child only in isolation. In her assessment of his level of establishment in Canada, for example, she wrote: . . . a person in Canada making a claim to refugee status is afforded the tools such as a study permit that would allow one to be self-sufficient and to integrate into the Canadian community. Therefore, in the case at hand, it is expected that a certain level of establishment would have taken place during the applicant’s stay in Canada. It is understandable that [Jeyakannan Kanthasamy] would like to remain in Canada and I accept that [Jeyakannan Kanthasamy’s] removal to Sri Lanka would be an inconvenience; however, I am not satisfied that he has established himself to such a degree that return to Sri Lanka would amount to unusual and undeserved or disproportionate hardship. [Emphasis added.] Nowhere did the Officer ask whether the effect of separating Jeyakannan Kanthasamy from the people he was close to in Canada would be magnified by the fact that his relationships with them developed when he was a teenager. This approach is inconsistent with how hardship should be uniquely addressed for children.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-32", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 59–61", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Moreover, by evaluating Jeyakannan Kanthasamy’s best interests through the same literal approach she applied to each of his other circumstances — whether the hardship was “unusual and undeserved or disproportionate” — she misconstrued the best interests of the child analysis, most crucially disregarding the guiding admonition that “[c]hildren will rarely, if ever, be deserving of any hardship”: Hawthorne, at para. 9. See also Williams v. Canada (Minister of Citizenship and Immigration), 2012 FC 166, at paras. 64-67 (CanLII).\n\nFinding that no single factor amounted to hardship that was “unusual and undeserved or disproportionate”, the Officer ultimately concluded that humanitarian and compassionate relief was not warranted. But these three adjectives are merely descriptive, not separate legal thresholds to be strictly construed. Finally, the Officer not only unreasonably discounted both the psychological report and the clear and uncontradicted evidence of a risk of discrimination, she avoided the requisite analysis of whether, in light of the humanitarian purpose of s. 25(1) of the Immigration and Refugee Protection Act , the evidence as a whole justified relief. This approach unduly fettered her discretion and, in my respectful view, led to its unreasonable exercise.\n\nI would therefore allow the appeal with costs, set aside the Officer’s decision, and remit the matter for reconsideration in light of these reasons. The reasons of Moldaver and Wagner JJ. were delivered by Moldaver J. (dissenting) — I. Overview", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-33", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 62–64", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Jeyakannan Kanthasamy applied for a humanitarian and compassionate (“H&C”) exemption under s. 25(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”). The exemption would have allowed him to apply for permanent resident status from within Canada. His application was rejected. He seeks to overturn that decision on the grounds that the Senior Immigration Officer (the “Officer”) applied the wrong legal test and unreasonably denied his application.\n\nSection 25(1) is a safety valve that supplements the two normal streams by which foreign nationals can come to Canada permanently: the immigration classes and the refugee process. It empowers the Minister of Citizenship and Immigration (the “Minister”) to grant applicants relief from the requirements of the IRPA when such relief is justified by H&C considerations. Properly construed, it provides a flexible means of relief for applicants whose cases are exceptional and compelling. For reasons that will become apparent, I am of the view that in deciding whether to grant relief under s. 25(1), decision makers must determine whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought.\n\nMeasured against this standard, and bearing in mind the deference that is owed to decisions made under s. 25(1), the Officer’s decision was reasonable. Accordingly, I would uphold that decision and dismiss Mr. Kanthasamy’s appeal. II. Factual Background", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-34", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 65–67", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Kanthasamy is a Tamil who grew up in northern Sri Lanka during that country’s civil war. Although the war ended in 2009, the situation in Sri Lanka remained unstable, and young Tamil men in particular faced a heightened risk of being subjected to discriminatory security measures. Mr. Kanthasamy’s family feared for his safety and arranged to send him to Canada. He arrived here using a false passport in April 2010. He was 16 years old. A. Procedural History\n\nOne month following Mr. Kanthasamy’s arrival in Canada, he made a claim for refugee protection. That claim was denied in February 2011. In denying his claim, the Refugee Protection Division tribunal determined that he did not have a well-founded fear of persecution in Sri Lanka, and that removal to Sri Lanka would not subject him personally to a risk of death, torture, or cruel and unusual treatment or punishment. His application seeking leave to have this decision judicially reviewed was dismissed in May 2011.\n\nIn July 2011, Mr. Kanthasamy applied under s. 25(1) to be exempted from the requirement that he apply for permanent resident status from outside Canada (the “H&C application”). His H&C application was received one day before his 18th birthday. He also applied for a Pre-Removal Risk Assessment (“PRRA”) in August 2011.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-35", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 68–70", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Both his PRRA and H&C application were denied in January 2012. In the PRRA decision, the immigration officer concluded that Mr. Kanthasamy would not face “more than a mere possibility of persecution in Sri Lanka”, and that, on balance, he was not likely “to face a danger of torture, or a risk to life, or a risk of cruel and unusual treatment or punishment”. Mr. Kanthasamy initially sought leave for judicial review of his PRRA denial, but in March 2012, after securing an agreement from the Minister to reconsider his H&C application, he withdrew his application for leave.\n\nOn reconsideration, Mr. Kanthasamy’s H&C application was again denied. Initial reasons for decision were provided in April 2012 and an addendum was released in July 2012. These two sets of reasons comprise the Officer’s decision. Mr. Kanthasamy challenged that decision by way of judicial review in the Federal Court. His application for judicial review was dismissed, as was his subsequent appeal to the Federal Court of Appeal. He now appeals with leave to this Court. B. Facts Underlying Mr. Kanthasamy’s H&C Application\n\nThe factual record underlying Mr. Kanthasamy’s H&C application can be distilled into four categories: (1) his past mistreatment by Sri Lankan authorities; (2) the conditions he would face if he were removed to Sri Lanka; (3) the psychological consequences of his return to Sri Lanka; and (4) his establishment in Canada. (1) Mistreatment by Sri Lankan Authorities", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-36", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 71–73", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The evidence of past mistreatment focuses on two incidents which occurred shortly before Mr. Kanthasamy left Sri Lanka. In March 2010, he was arrested at his home and taken to an army camp in his village, where he was detained for one day. During his detention, he was held in a dark room for three to four hours. Soldiers visited him sporadically and touched him with their guns, kicked him, and threatened to kill him if he did not cooperate. The soldiers wanted Mr. Kanthasamy to identify supporters of the Liberation Tigers of Tamil Eelam (“LTTE”), an anti-government militant group. He was ultimately released with the warning that he would be re-arrested if he helped to conceal LTTE supporters in his village.\n\nAfter his release, members of a pro-government paramilitary group came to his home, questioned him, and pressured him to join their group. They warned Mr. Kanthasamy’s father to watch him, as the LTTE was trying to recruit young Tamil men. His father was concerned for Mr. Kanthasamy’s safety, and arranged to send him from his home village in northern Sri Lanka to the capital, Colombo, where he could obtain passage to Canada.\n\nThe second incident of mistreatment occurred in Colombo in April 2010. Mr. Kanthasamy was arrested by police and detained for one day. During his detention, he was threatened, physically assaulted, and interrogated once again about any involvement with the LTTE. He was released after paying money to the police, but was warned that he could not stay in Colombo. Shortly after this incident, Mr. Kanthasamy made his way to Canada using a false passport. (2) Present-Day Conditions in Sri Lanka", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-37", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 74–75", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The record contains conflicting evidence about conditions in Sri Lanka and the extent to which the treatment of Tamils had improved since the end of the civil war and the defeat of the LTTE in 2009. Mr. Kanthasamy put forward evidence suggesting that young Tamil men in northern Sri Lanka still faced “frequent harassment” and “abusive behaviour” by government and paramilitary forces, and that security measures targeted Tamils in a disproportionate and discriminatory manner. He also submitted evidence that the Sri Lankan government continued to engage in torture and that some failed Tamil asylum seekers had faced arbitrary arrest and torture upon their return to Sri Lanka. On the other hand, two research packages prepared by the Immigration and Refugee Board, which summarized reports from news, academic and other sources on the treatment of Tamils in Sri Lanka, contained evidence that the harassment and government surveillance of Tamils had decreased since 2009. (3) Psychological Consequences of Return to Sri Lanka\n\nMr. Kanthasamy was examined by a clinical psychologist in March 2012, and he submitted a psychological assessment in support of his H&C application. The psychologist, Dr. Kanagaratnam, outlined Mr. Kanthasamy’s history in Sri Lanka, including the two instances of arrest and interrogation. Mr. Kanthasamy described to her how the ongoing immigration proceedings had caused him to experience difficulty sleeping, difficulties with concentration and recall, and a reduced appetite. She noted that he also reported symptoms of hyper-arousal and hyper-vigilance when he saw military vehicles or heard the sounds of aircraft. According to Mr. Kanthasamy, he began experiencing these additional symptoms one to three months prior to his psychological evaluation.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-38", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 76–78", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Dr. Kanagaratnam diagnosed Mr. Kanthasamy with anxiety, depression and post-traumatic stress disorder. Noting that “events that evoke elements of past trauma” can trigger the re-emergence of these conditions, she concluded that due to “a realistic and imminent threat to his safety, it is most likely that [Mr. Kanthasamy’s] condition [would] further deteriorate psychologically if he [were] to be deported” (emphasis added). (4) Establishment in Canada\n\nMr. Kanthasamy’s parents and three of his four siblings live in Sri Lanka. He had been living in Canada with his uncle, aunt and three cousins. To establish the strength of his attachment to Canada, Mr. Kanthasamy submitted evidence that he was “very close” to his Canadian relatives and they would be “very upset” if he had to return to Sri Lanka. At the time of his H&C application, he was enrolled in high school, worked part-time in his uncle’s hair salon and volunteered at a local temple. He had spent approximately 16 months in Canada. III. Decisions Below A. Decision on Mr. Kanthasamy’s H&C Application\n\nMr. Kanthasamy raised four factors in support of his application for relief under s. 25(1): (1) personalized risk of discrimination; (2) establishment in Canada; (3) the psychological impact of removal from Canada; and (4) his best interests as a child.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-39", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 79", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "In her reasons for dismissing his H&C application, the Officer stated that Mr. Kanthasamy bore the burden of establishing that the “hardship . . . would be . . . unusual and undeserved or . . . disproportionate”. This test initially appeared in the Minister’s immigration processing manual some three decades ago (Employment and Immigration Canada, Immigration Manual (1986), s. 1.39). It has been repeatedly applied by the Federal Court since then (see, for example, Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956; Pan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1303; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463). The current manual employs the same hardship test and provides a non-exhaustive list of factors for immigration officers to consider when assessing applications under s. 25(1) (Citizenship and Immigration Canada, Inland Processing, “IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds”, ss. 5.10 and 5.11 (the “Guidelines”)). It is against this backdrop that the Officer evaluated the factors raised by Mr. Kanthasamy.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-40", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 80–82", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Officer accepted that young Tamil males continued to face discriminatory treatment by authorities. However, she noted that the focus of the government’s attention was on suspected LTTE supporters and that Mr. Kanthasamy had failed to present sufficient evidence that he would be personally targeted by security forces. While recognizing Mr. Kanthasamy’s establishment in Canada, the Officer observed that it had occurred while he was under a removal order, and concluded that returning to Sri Lanka would not rise to the level of hardship. In evaluating the psychological evidence, the Officer accepted Dr. Kanagaratnam’s medical diagnoses, but was not satisfied that Mr. Kanthasamy would be unable to obtain treatment for his conditions in Sri Lanka. Regarding “the best interests of the child”, the Officer concluded that it was in Mr. Kanthasamy’s best interests to return to Sri Lanka where he would have the care and support of his parents and siblings.\n\nReviewing the record in its entirety, the Officer was unpersuaded that return to Sri Lanka would subject Mr. Kanthasamy to unusual and undeserved or disproportionate hardship. She concluded that H&C considerations did not justify granting an exemption. B. Judicial Review and Appeal\n\nOn judicial review, Mr. Kanthasamy challenged the Officer’s decision on several grounds (2013 FC 802, [2014] 3 F.C.R. 438). Among them, he claimed the Officer unreasonably concluded that he would not face a personalized risk of discrimination in Sri Lanka. Further, she unreasonably discounted evidence relating to his establishment in Canada and the psychological impact of deportation to Sri Lanka. Finally, she did not adequately consider his best interests as a child.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-41", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 83–84", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Kane J. dismissed the application for judicial review. In her view, the Officer’s conclusions on these points were reasonable. The Federal Court of Appeal unanimously dismissed Mr. Kanthasamy’s appeal (2014 FCA 113, [2015] 1 F.C.R. 335, Blais C.J., Sharlow and Stratas JJ.A.). Writing for the court, Stratas J.A. concluded that subject to this Court holding otherwise, the hardship test reflected the appropriate standard to be applied under s. 25(1) (paras. 47-49). He cautioned against applying the list of factors in the Guidelines as a closed list, but concluded the Officer had not done so in this case (paras. 51-53). The Officer had instead weighed the evidence and come to a reasonable decision. IV. Analysis\n\nThis case raises two issues. The first issue is one of statutory interpretation: the meaning of the phrase “justified by humanitarian and compassionate considerations” in s. 25(1) of the IRPA . At the time of Mr. Kanthasamy’s application, s. 25(1) read as follows: 25. (1) The Minister . . . may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-42", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 85–87", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "My colleague Justice Abella has considered the meaning of the phrase in question and I agree with much of what she says. With respect, however, I cannot agree with the test she proposes for granting relief under s. 25(1). The scheme of the IRPA and the intention of Parliament in enacting s. 25(1) and its predecessors all suggest that s. 25(1) is meant to provide a flexible — but exceptional — mechanism for relief. Giving it an overly broad interpretation risks creating a separate, freestanding immigration process, something Parliament clearly did not intend.\n\nThe second issue is whether, in light of the meaning of s. 25(1), the Officer’s decision to deny Mr. Kanthasamy an exemption was reasonable. Unlike my colleague, I am respectfully of the view that it was. A. Standard of Review\n\nI find it unnecessary to decide whether the standard of review applicable to the Officer’s interpretation of s. 25(1) is correctness or reasonableness. For reasons that will become apparent, had she applied the test set out in these reasons, she would inevitably have come to the same result. B. The Role of Section 25(1) Within the IRPA", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-43", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 88–89", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA and its regulations create a carefully tailored scheme, with two normal streams by which foreign nationals can come to Canada permanently: the immigration classes and the refugee process. Within each stream, Parliament has established a set of criteria that reflect Canada’s immigration and refugee policy goals and international obligations. These criteria anticipate most circumstances in which foreign nationals should be admitted to Canada. Parliament has also established procedures for determining whether an applicant meets these criteria, and procedural safeguards designed to ensure that these criteria have been properly applied, such as internal appeals, judicial review and the PRRA process.\n\nHowever, as with any administrative scheme, Parliament recognized that cases could arise in which the strict application of the rules would not reflect Canada’s policy goals, or would lead to an arbitrary or inhumane result. With this in mind, it empowered the Minister to grant some applicants special relief if they could convince the Minister that the relief sought was “justified by humanitarian and compassionate considerations” (IRPA , s. 25(1) ).", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-44", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "para 90", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The legislative history of the H&C provision makes clear that the provision was not intended as a separate category for admission to Canada, but rather as a safety valve for exceptional cases (see House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, at pp. 13267-68). Though the terms “humanitarian” and “compassionate” have remained unchanged since the provision was first enacted, the provision has been debated, revised and re-enacted multiple times (see Immigration Appeal Board Act, S.C. 1966-67, c. 90, s. 15(1)(b)(ii); Immigration Act, R.S.C. 1985, c. I-2, s. 114(2); Immigration and Refugee Protection Act , S.C. 2001, c. 27, s. 25(1) ; Balanced Refugee Reform Act, S.C. 2010, c. 8, s. 4). Notably, when Parliament amended the provision in 2010, it did so with a view to emphasizing the provision’s original purpose. As Peter MacDougall, the Director General of Refugees at the Department of Citizenship and Immigration, put it at the time: . . . the original intent of the H and C provision was to provide the government with the flexibility to approve exceptional and compelling cases not anticipated in the Immigration and Refugee Protection Act . It was never intended to be an alternate immigration stream or an appeal mechanism for failed asylum claimants. It should be reserved for exceptional cases. But what has happened is that some failed asylum claimants use the humanitarian and compassionate provision in another process to try to remain in Canada. In fact, more than half of the humanitarian and compassionate backlog is now made up of failed asylum claimants. [Emphasis added.] (House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at 15:40)", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-45", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 91–92", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. MacDougall’s comments pertained, inter alia, to what is now s. 25(1.3) of the IRPA , which reads as follows: 25. . . . (1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national. The interpretation of this provision arises in this case. In the Federal Court of Appeal, Stratas J.A. concluded that it was “not meant to change the overall standard” for granting s. 25(1) relief (para. 66). As he explained, “the evidence adduced in previous proceedings under sections 96 and 97 . . . is admissible in subsection 25(1) proceedings” (para. 73). Section 25(1.3) requires officers to “assess that evidence through the lens of the subsection 25(1) test” and “not to undertake another section 96 or 97 risk assessment or substitute [their] decision for the Refugee Protection Division’s” (paras. 73-74).\n\nI agree with Stratas J.A.’s interpretation of s. 25(1.3). This subsection reminds decision makers that the H&C provision is not meant to be a second refugee proceeding with a lower threshold for admission. However, it does not prevent decision makers from looking at the facts and circumstances raised in the ss. 96 and 97 proceedings.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-46", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 93–94", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "In keeping with this legislative history, courts have recognized the exceptional nature of the H&C provision. This Court has described it as a “plea to the executive branch for special consideration” (Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 64) and as “involv[ing] the exercise of considerable discretion” (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 31). The Federal Court at both the trial and appellate level has emphasized that the provision is both exceptional and discretionary (see, for example, Paz v. Canada (Minister of Citizenship and Immigration), 2009 FC 412, at para. 15; Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 (leave to appeal refused, [2002] 4 S.C.R. vi), at para. 15; Pannu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1356, at para. 29 (CanLII)).\n\nIn short, s. 25(1) is intended to provide flexibility and a means of relief for applicants who do not fall strictly within the rules governing the admission of foreign nationals to Canada. That said, Parliament did not intend to provide relief on a routine basis. Section 25(1) was meant to operate as an exception, not the rule. C. The Approach to Evaluating H&C Applications Requires Flexibility and Stringency", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-47", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 95–96", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "As noted, s. 25(1) empowers the Minister to grant applicants relief from the requirements of the IRPA when such relief is “justified by humanitarian and compassionate considerations” (IRPA , s. 25(1) ). The Minister has described the approach immigration officers should take under s. 25(1) in the Guidelines. The Guidelines require applicants to demonstrate that denial of relief would cause them “unusual and undeserved” or “disproportionate” hardship. Though the Federal Courts have adopted this test, as I have observed, it did not originate there or in Parliament. Instead, it appeared in the Minister’s immigration manual as early as 1986.\n\nTo recapitulate, the test for H&C relief must balance the dual characteristics of stringency and flexibility. The hardship test is a good test in that it achieves the degree of stringency required to grant H&C relief. If an applicant can demonstrate “unusual and undeserved or disproportionate hardship”, he or she should be granted relief. With respect, however, the test falls down on the flexibility side. Put simply, it risks excluding or diminishing the weight that some factors may deserve in deciding whether H&C relief should be granted.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-48", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 97–98", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the Federal Court of Appeal, Stratas J.A. described the hardship test as “requiring proof that the applicant will personally suffer unusual and undeserved, or disproportionate hardship arising from the application of . . . the normal rule” (para. 41 (emphasis added)). Read literally, this test is future-oriented and focuses solely on the applicant. It asks how the applicant is likely to be affected in the future if relief is denied. As such, it runs the risk of excluding from consideration otherwise relevant H&C factors such as past hardship the applicant may have suffered or the impact that denying relief is likely to have on persons other than the applicant.\n\nThough the Guidelines direct decision makers to consider a broad range of factors such as family violence and establishment in Canada, the hardship lens might lead a decision maker to disregard these factors or give them less weight than they deserve. For example, a future-oriented analysis may not adequately account for the past hardship of sponsored spouses who leave abusive spouses or whose spouses become ineligible to sponsor them by virtue of a conviction involving domestic violence (H. Neufeld, “Inadequacies of the Humanitarian and Compassionate Procedure for Abused Immigrant Spouses” (2009), 22 J.L. & Soc. Pol’y 177, at p. 205). Likewise, a decision maker applying the hardship test literally might disregard the impact denying relief would have on other adults who are dependent on the applicant for their care and well-being (see, for example, Jacob v. Canada (Minister of Citizenship and Immigration), 2012 FC 1382, 423 F.T.R. 1, at para. 33).", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-49", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 99–101", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Neither the future-oriented analysis nor the exclusive focus on the applicant flows from the statute. Section 25(1) does not limit when the relevant H&C considerations must occur; nor does it require that they be viewed only from the applicant’s perspective. It asks only that decision makers look at H&C considerations relating to the applicant. Section 25(1) is framed in broad terms because it is impossible to foresee all situations in which it might be appropriate to grant relief to someone seeking to enter or remain in Canada. A more comprehensive approach is therefore required.\n\nGiven that s. 25(1) is intended to act as a safety valve by providing flexibility to the normal operation of the IRPA , the test should reflect the broad range of factors that may be relevant. As the Minister is empowered to grant an exceptional remedy, the test should also convey the level of intensity that those factors must reach — that is, the stringent threshold for relief.\n\nBearing in mind the purpose and context of s. 25(1), and the fact that the hardship test used to date may, in some circumstances, be overly restrictive, I would reframe the test for granting relief as follows: whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought. To be simply unacceptable, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-50", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 102–104", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "This test maintains the stringency of the hardship test — but does not exceed it. The hardship test requires applicants to demonstrate “unusual and undeserved or disproportionate” hardship. If an applicant meets the hardship test, he or she should be granted relief. To do otherwise would be simply unacceptable.\n\nAt the same time, it is more flexible than the hardship test. It asks decision makers to turn their minds to all of the relevant circumstances when deciding whether refusing relief would be “simply unacceptable”. This prevents decision makers from excluding relevant H&C considerations because they do not fit within the future-oriented hardship framework or because they do not involve hardship experienced solely by the applicant.\n\nThe “simply unacceptable” test I am proposing should not be seen as wordsmithing; nor, in my view, will it lead to more confusion than clarity. It uses concepts that are well-understood and regularly applied in Canadian law. For example, the test for whether extradition would violate s. 7 of the Canadian Charter of Rights and Freedoms “on account of the penalty which may be imposed in the requesting state” is whether the penalty would be “simply unacceptable” (Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 849). Similarly, in criminal law, abuse of process may be established where conduct would violate the community’s sense of fair play and decency (R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 41).", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-51", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 105–107", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant submits that the hardship test is too stringent and proposes that the test found in Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338, be adopted as a less stringent alternative. He argues that relief should be granted in circumstances which “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another” (Chirwa, at p. 350).\n\nMy colleague discusses the Chirwa test at length. She acknowledges that it was developed for a different decision-making context than the hardship test (para. 20), but appears to conclude nonetheless that the correct approach is to import it into s. 25(1) and apply it in conjunction with the hardship test (paras. 30-33). In her view, the requirements of the hardship test — that the hardship must be unusual and undeserved or disproportionate — should be treated as “instructive but not determinative”, so that s. 25(1) may “respond more flexibly to the equitable goals of the provision” (para. 33).\n\nWith respect, the test that my colleague proposes is amorphous. It does not provide any guidance to decision makers as to the kinds of factors outside the hardship test that would be sufficient to justify relief. Even more problematic, by introducing equitable principles, it runs the risk of watering down the stringency of the hardship test. Relief could be granted in cases which arouse strong feelings of sympathy in an individual decision maker, but which do not reach the stringent standard that the hardship test demands. Setting the bar this low is inconsistent with Parliament’s goal and risks turning s. 25(1) into an alternate immigration scheme, or an appeal mechanism for good faith but unsuccessful refugee claimants.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-52", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 108–110", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The threshold that denial of relief must, in the circumstances, be simply unacceptable to decent, fair-minded Canadians aware of the exceptional nature of H&C relief provides the appropriate mix of flexibility and stringency. Canada is a desirable place to live. It is a thriving democracy with a high standard of living, a relatively low rate of violent crime and a generous social safety net. Understandably, many people want to come to Canada, and it is natural to feel sympathy for those whose home countries do not have the same advantages. However, most decent, fair-minded Canadians aware of the exceptional nature of H&C relief would not find it simply unacceptable that we exclude individuals who do not meet our legal requirements, even if such persons evoke our sympathy and would be better off here than in their home countries.\n\nWith these thoughts in mind, I turn to the review of the Officer’s decision in this case. D. The Reasonableness of the Officer’s Decision\n\nMr. Kanthasamy submits, and my colleague agrees, that the Officer did not exercise her discretion reasonably in denying his H&C application. According to my colleague, the Officer erred in her overall approach by considering the relevant factors on a piecemeal basis and by treating the hardship test, identified in the Guidelines, as an all-inclusive “distinct legal test”, thereby fettering her discretion (para. 45). Additionally, she takes issue with certain aspects of the Officer’s reasons, maintaining that the Officer failed to properly assess several points raised by Mr. Kanthasamy.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-53", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 111–112", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "With respect, I cannot agree. In my view, the Officer’s decision falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law, and was therefore reasonable. Decision making under s. 25(1) is highly discretionary and is entitled to deference. Care must be taken not to overly dissect or parse an officer’s reasons. Rather, reasonableness review entails respectful attention to the reasons offered or which could be offered in support of a decision (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 48; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 11-12).\n\nIn particular, I am concerned that my colleague has not given the Officer’s reasons the deference which, time and again, this Court has said they deserve. In her reasons, she parses the Officer’s decision for legal errors, resolves ambiguities against the Officer, and reweighs the evidence. Lest we be accused of adopting a “do as we say, not what we do” approach to reasonableness review, this approach fails to heed the admonition in Newfoundland and Labrador Nurses — that reviewing courts must be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fatal (para. 17). As is the case with every other court, this Court has no licence to find an officer’s decision unreasonable simply because it considers the result unpalatable and would itself have come to a different result. (1) The Officer Considered the Evidence as a Whole and Did Not Fetter Her Discretion", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-54", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 113–114", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "As I have stated, to obtain H&C relief, an applicant bears the onus of demonstrating, having regard to all of the circumstances, that decent, fair-minded Canadians aware of the exceptional nature of H&C relief would find it simply unacceptable to deny the relief sought. In evaluating the application, the decision maker must not segment the evidence and require that each piece either rise above this threshold or be discounted entirely. Rather, the decision maker must fairly consider the totality of the circumstances and base the disposition on the evidence as a whole. Likewise, the decision maker must not fetter his or her discretion by applying the Guidelines — the “unusual and undeserved or disproportionate hardship” framework — as a strict legal test to the exclusion of all other factors. In my view, the Officer’s decision does not fall down on either basis.\n\nIt is true that the Officer’s reasons address each of Mr. Kanthasamy’s submissions separately, and discuss the level of hardship associated with each factor. This is not an example of improper segmentation, however, but rather an uncontroversial method of legal analysis. In fact, had the Officer failed to discuss each factor individually, and instead simply listed the facts and stated her conclusion on the evidence as a whole, this appeal might well have been before us on the basis of insufficient reasons.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-55", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 115–116", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The issue, therefore, is not whether the Officer analyzed the factors individually, but whether in doing so she failed to step back and consider the evidence as a whole. I find no such error in the Officer’s reasons. She stated that she “reviewed and considered the grounds” raised by Mr. Kanthasamy, and “considered all information and evidence regarding this application in its entirety”. In the July addendum, she listed seven additional pieces of evidence received from Mr. Kanthasamy, and stated that she “reviewed all of the evidence mentioned [therein] in conjunction with the evidence [she] previously reviewed”. It is apparent that the Officer gave careful consideration to the full record in reaching her determination.\n\nMoreover, the Officer’s use of the “unusual and undeserved or disproportionate hardship” standard to guide her analysis was entirely appropriate. As I have stated above, while the Guidelines do not establish the applicable test, the hardship analysis is neither irrelevant nor inappropriate. The degree of hardship demonstrated by the applicant is highly probative. In many cases, a hardship analysis may be dispositive. The decision maker must simply avoid applying the standard from the Guidelines in a way that fetters his or her discretion or causes relevant evidence to be improperly discounted.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-56", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 117–119", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, the Officer gave full and fair consideration to each of the factors supporting Mr. Kanthasamy’s application. On the issue of personalized risk, she recognized the conflicting evidence of present-day conditions in Sri Lanka, and accepted that challenges remained. She found that while some Tamils were singled out by the government, this attention was primarily focused on suspected LTTE supporters. She concluded that there was insufficient evidence that Mr. Kanthasamy would personally be discriminated against.\n\nOn the issue of establishment, the Officer accepted the evidence of Mr. Kanthasamy’s relationships with friends and relatives in Canada, his integration into his school and religious communities, and his employment. She found that his degree of establishment was “commendable”, and recognized that removal to Sri Lanka would involve some hardship. However, she concluded that his establishment in Canada — for approximately two years, and all while under a removal order — was no more than would be expected under the circumstances and was not so compelling that it justified an H&C exemption.\n\nOn the psychological evidence, the Officer expressed concern that the psychologist’s conclusions relied heavily on Mr. Kanthasamy’s own observations and explanations, which were not otherwise in the record. While the Officer ultimately accepted the medical diagnoses, she found that there was no evidence that mental health treatment would be unavailable in Sri Lanka, and therefore the psychological evidence did not establish hardship warranting H&C relief.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-57", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 120–123", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "On “the best interests of the child”, the Officer concluded that it was in Mr. Kanthasamy’s best interests to return to his immediate family in Sri Lanka. His relationships with friends and family in Canada might be weakened, but they could nonetheless be maintained even after his removal.\n\nTaken as a whole, the Officer’s decision denying Mr. Kanthasamy’s H&C application is transparent. She provided intelligible reasons for concluding that he did not meet his onus of establishing, on balance, that he should be permitted to apply for permanent residency from within Canada for H&C reasons. She did not use the hardship framework in a way that fettered her discretion or caused her to discount relevant evidence. Her conclusions are reasonable, and well-supported by the record before her.\n\nAt bottom, it was open to the Officer to find that the record did not justify relief under s. 25(1). While aspects of Mr. Kanthasamy’s situation warrant sympathy, sympathetic circumstances alone do not meet the threshold required to obtain relief. I find no error in the Officer’s approach requiring this Court’s intervention. (2) The Officer’s Analysis of the Psychological Evidence, the Risk of Discrimination, and the Best Interests of the Child\n\nMr. Kanthasamy alleges that the Officer failed to properly assess the psychological evidence, the issue of discrimination, and his best interests as a child. With respect, I disagree. As I have already indicated, decision making under s. 25(1) is entitled to deference, and in line with that approach, Mr. Kanthasamy’s arguments do not justify setting aside the Officer’s decision. (a) The Psychological Evidence", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-58", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 124–126", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Kanthasamy submits that the Officer failed to adequately consider the impact of removal on his mental health. By focusing exclusively on the availability of treatment in Sri Lanka, she discounted the evidence that his return to Sri Lanka would harm his mental health. Mr. Kanthasamy asserts that her failure to consider this aspect of the evidence rendered her decision unreasonable.\n\nI would not give effect to this submission. While I agree that the Officer’s reasons could have more fully engaged with the psychological evidence, and that it would have been helpful had she specifically addressed the issue of the impact of removal on Mr. Kanthasamy’s mental health, her failure to do so does not render her decision unreasonable.\n\nThe Officer rejected the premise underlying the psychologist’s opinion on the harm of deportation, and was therefore entitled to reject the opinion itself. The psychologist concluded that “[w]ith what seems to be a realistic and imminent threat to his safety, it is most likely that [Mr. Kanthasamy’s] condition will further deteriorate psychologically if he was to be deported from Canada” (emphasis added). The phrasing of this opinion reveals that the ultimate conclusion — that Mr. Kanthasamy’s mental health would deteriorate upon his return to Sri Lanka — is premised on the assumption that removal poses a “realistic and imminent threat to his safety”.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-59", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 127–128", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Officer rejected this underlying assumption. She found that removal would not pose a serious risk to Mr. Kanthasamy’s safety. There was sufficient evidence in the record on conditions in Sri Lanka to support this conclusion. Though she did not say so expressly, by logical implication, it was on this basis that she rejected the psychologist’s opinion as to the impact of removal on Mr. Kanthasamy’s mental health. Immigration officers must be allowed to evaluate an expert’s assumptions in the context of the other evidence. If a report rests on an assumption that is contradicted by other evidence, decision makers must be entitled to reject or give little weight to that report’s conclusions.\n\nIt bears repeating that reasonableness review requires this Court to give respectful attention to the reasons which, though not stated, could have been offered in support of a decision. This point is emphatically made in Newfoundland and Labrador Nurses, where the Court stressed that “even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them” (para. 12, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304). The fact that the Officer did not explicitly set out this aspect of her reasoning does not render her decision unreasonable.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-60", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 129–131", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "My colleague takes issue with the Officer’s comment that Mr. Kanthasamy provided insufficient evidence that he had received or was receiving treatment in Canada for his psychological condition. She says that once the Officer accepted the diagnosis, “requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor” (para. 47).\n\nWith respect, I disagree. There was no evidence before the Officer that Mr. Kanthasamy ever sought treatment in Canada. The Officer’s comments on this point do not amount to questioning the diagnosis. Instead, they support her conclusion that removal from Canada would not meet the hardship test since no existing course of treatment would be interrupted. I fail to see how losing access to a service which Mr. Kanthasamy never attempted to access can be viewed as a hardship. This is especially so given the Officer’s further finding that he could receive treatment in Sri Lanka.\n\nIn my view, there are two ways in which Mr. Kanthasamy’s mental health could give rise to hardship: either because returning him to Sri Lanka would aggravate his condition, or because it would affect his treatment, by interrupting an existing course of treatment or by precluding access to treatment altogether. The Officer, on the basis of the record before her, found that neither situation existed. In this context, asking for evidence regarding treatment did not improperly change the diagnosis from a “significant” to a “conditional” factor. The significance of the diagnosis always depended on the hardship that removal would cause. (b) Personalized Risk of Discrimination", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-61", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 132–133", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Kanthasamy submits that the Officer’s approach to the issue of discrimination was flawed. After noting the effect of s. 25(1.3), the Officer stated that “the onus remains on the applicant to demonstrate that these country conditions would affect him personally”. Mr. Kanthasamy asserts that it was a legal error for the Officer to require evidence that he would be personally targeted by discriminatory action. Rather, he submits that she should have considered more generally whether his profile as a young Tamil male from northern Sri Lanka would subject him to a risk of discriminatory mistreatment.\n\nWhile the Officer’s reasons could perhaps have been more clearly articulated, I do not share the view that her approach to the issue of discrimination was unreasonable, nor that it rendered her decision unreasonable. With respect to the effect of s. 25(1.3), the Officer’s approach is consistent with that set out by Stratas J.A., which I have endorsed. The Officer’s statement that she had “not considered the applicant’s risk” in the context of the refugee and PRRA factors must not be overly parsed or dissected. She engaged with the evidence relating to the treatment of Tamil males in northern Sri Lanka and analyzed it through the lens of the criteria for granting H&C relief. This approach was reasonable and did not lead her to disregard any relevant evidence.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-62", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 134–135", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "On the issue of personalized risk of discrimination, I agree with my colleague that an applicant need not produce direct evidence showing that discrimination against the applicant himself or herself had occurred or would necessarily occur. Whether in the context of an H&C application, the PRRA process or a refugee claim, certainties are rare. The applicant need only show that the denial of relief would pose a certain risk of harm.\n\nHowever, that risk must necessarily be a “personalized risk”, in the sense that the applicant must fall within the category of people who, on the evidence submitted, would face that risk. For example, in order to establish the harm of removal to a country where discrimination against a certain ethnic minority was alleged, the applicant would need to establish not only that this discrimination was ongoing and sufficiently severe, but also that he or she was a member (or would be perceived to be a member) of the group facing discrimination.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-63", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 136–137", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Officer accepted that the conditions in Sri Lanka posed some risk of discrimination to certain subsets of the Tamil population, but concluded that government harassment and surveillance was focused on those suspected of being LTTE supporters. The Officer impliedly concluded that Mr. Kanthasamy was not suspected of being an LTTE supporter. She also noted that the government had attempted to improve the situation for Tamils. As a result, she found there was insufficient evidence that he would be personally targeted or personally discriminated against. This conclusion was open to her on the record. Though, as my colleague notes, the Officer was permitted to draw inferences from the experiences of other Tamils in order to find a personalized risk of discrimination, the record did not require that she draw that inference here.\n\nI note that on this point, the Officer’s conclusion largely mirrors the finding made on Mr. Kanthasamy’s refugee claim, which he enclosed with his H&C submissions. In that decision, while the Immigration and Refugee Board accepted Mr. Kanthasamy’s description of the two incidents of arrest and detention, it noted that “[t]here were no conditions placed on the claimant before he was released by the army or the police after they had questioned him”, and concluded that “[neither] the police [nor] the army would have released the claimant in the manner described” had they suspected Mr. Kanthasamy of LTTE support or sympathy. The refugee claim was rejected because “on a balance of probabilities . . . [Mr. Kanthasamy’s] profile is not one that would particularly attract any undue attention or reprisal . . . if he returns to his family in Sri Lanka”.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-64", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 138–140", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "In reaching a similar conclusion in evaluating his H&C application, the Officer arrived at a reasonable result that was supported by the record. Reviewing judges ought not to parse a decision maker’s word choices in “a line-by-line treasure hunt for error” (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 54). The Officer’s reasons must be viewed in the context of the record as a whole, including Mr. Kanthasamy’s submissions. Before the Officer, Mr. Kanthasamy submitted that he “has been personally affected by discrimination . . . and will continue to be so affected” (emphasis added). When viewed in context, the Officer’s conclusion that Mr. Kanthasamy had “failed to provide sufficient evidence to support his statements that he will be personally discriminated against” simply reiterated the wording of his submissions. The Officer’s word choice is not determinative. It is her reasoning that counts. I find nothing in her analysis on the issue of discrimination that warrants this Court’s intervention. (c) Mr. Kanthasamy’s Best Interests as a Child\n\nMr. Kanthasamy submits that the Officer’s analysis of his best interests as a child was superficial and that she failed to give adequate weight to his status as a child.\n\nAgain, I accept that the Officer’s reasons could have been more expansive on this point. However, in my view, both her analysis and conclusion on Mr. Kanthasamy’s best interests as a child were reasonable.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-65", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 141–143", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the context of Mr. Kanthasamy’s application, it was highly relevant that he was one day away from turning 18 when he initially applied for H&C relief. Mr. Kanthasamy was not a young child, born in Canada, facing the prospect of his parents’ deportation and being left here without support. He was a teenager on the verge of adulthood. Removal would reunite him with his parents and siblings in Sri Lanka.\n\nThe Officer considered factors unique to Mr. Kanthasamy’s status as a child, including friendships forged during his teenage years in Canada and his efforts at completing high school. She found that removal to Sri Lanka would not necessarily bring an end to these friendships. She was also unpersuaded that he “would be unable to attend school . . . upon his return to Sri Lanka”. In the totality of his circumstances, she concluded that it was in Mr. Kanthasamy’s best interests as a child to return to the support and care of his immediate family in Sri Lanka.\n\nOn the record before her, it was open to the Officer to conclude that removal to Sri Lanka would not impair Mr. Kanthasamy’s best interests, because he would be returning to his immediate family rather than being separated from them. The Officer was obliged to be “alert, alive and sensitive” to the best interests of the child factor (Baker, at para. 75). In my view, her reasons demonstrate that she was, and I see no basis to disturb her findings on this issue. V. Conclusion", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-15665-66", - "doc_type": "caselaw", - "act_code": "2015 SCC 61", - "act_short": "Kanthasamy", - "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", - "marginal_note": "paras 144–146", - "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", - "part": "Supreme Court of Canada", - "division": "", - "text": "As I have explained, the test for granting relief under s. 25(1) is not the “unusual and undeserved or disproportionate hardship” test set out in the Guidelines. Nonetheless, the Guidelines remain relevant. They can continue to serve their original purpose — describing the majority of situations appropriate for relief — and can be applied in a way that does not fetter the discretion of immigration officers.\n\nThe Officer here used the hardship framework to guide her analysis. Had she applied the test that I have outlined — whether, having regard to all of the circumstances, decent, fair-minded Canadians aware of the exceptional nature of H&C relief would find it simply unacceptable to deny the relief sought — she would inevitably have reached the same conclusion.\n\nThe Officer’s decision to deny an exemption to Mr. Kanthasamy was reasonable. Although she separately analyzed each factor raised in support of his application, she did not improperly discount the cumulative weight of each factor. Rather, after analyzing each piece of evidence in detail, she reached a conclusion which was grounded in Mr. Kanthasamy’s circumstances as a whole. Although she applied the hardship standard from the Guidelines, she did not do so in a way that fettered her discretion. Accordingly, I would dismiss Mr. Kanthasamy’s appeal, and affirm the Officer’s decision to deny his H&C application. Appeal allowed with costs, Moldaver and Wagner JJ. dissenting.", - "current_to": "2015-12-10", - "last_amended": "", - "history": "[2015] 3 SCR 909", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" - }, - { - "id": "scc-13137-1", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 1–2", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant, Muhsen Ahmed Ramadan Agraira, a citizen of Libya, has been residing in Canada continuously since 1997, despite having been found to be inadmissible on security grounds in 2002. The finding of inadmissibility was based on the appellant’s membership in the Libyan National Salvation Front (“LNSF”) — a terrorist organization according to Citizenship and Immigration Canada (“CIC”). The appellant applied in 2002 under s. 34(2) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), for ministerial relief from the determination of inadmissibility, but his application was denied in 2009. The Minister of Public Safety and Emergency Preparedness (“Minister”) concluded that it was not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations. The appellant’s application for permanent residence was accordingly denied, and he is now at risk of deportation.\n\nMr. Agraira appeals to this Court from a decision in which the Federal Court of Appeal dismissed an application for judicial review of the Minister’s decision denying relief from the determination of inadmissibility. He contends that the Minister took an overly narrow view of the term “national interest” in s. 34(2) of the IRPA by equating it with national security and public safety. He adds that the Minister’s decision failed to meet his legitimate expectations that certain procedures would be followed and certain factors would be taken into account in determining his application for relief.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-2", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 3–5", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The question raised by this appeal is whether the Minister’s decision to deny relief can be successfully challenged. Two central issues are raised. First, what is the appropriate standard of review to apply to the Minister’s decision? Second, in light of this standard, should the Minister’s decision be set aside? This appeal also raises two other issues incidental to these central issues, namely the interpretation of the term “national interest” in s. 34(2) of the IRPA and the impact of any legitimate expectations created by Chapter 10 of CIC’s Inland Processing Operational Manual: “Refusal of National Security Cases/Processing of National Interest Requests” (the “Guidelines”).\n\nI agree with the Federal Court of Appeal, but for reasons differing in part, that the Minister’s decision was reasonable and that the application for judicial review should be dismissed. II. Background\n\nThe appellant left Libya in 1996. He first sought refugee status in Germany on the basis of his connection with the LNSF, but his application was denied. He entered Canada in 1997, at Toronto, using a fake Italian passport. He applied for Convention Refugee status in this country on the basis of his affiliation with the LNSF. On his personal information form, he described his activities with that organization as follows: as a member of an 11-person cell, he had delivered envelopes to members of other cells, raised funds, and watched the movements of supporters of the regime then in power. As part of his training, he was taught how to engage people in political discourse and how to raise funds.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-3", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 6–8", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant was heard by the Convention Refugee Determination Division of the Immigration and Refugee Board. At the hearing, he provided a letter from the LNSF confirming his membership in that organization. On October 24, 1998, he was denied Convention Refugee status on the basis that he lacked credibility.\n\nWhile his application for refugee status was pending, the appellant married a Canadian woman in a religious ceremony in December 1997. He later married her in a civil ceremony in March 1999. His wife sponsored his application for permanent residence in August 1999.\n\nIn May 2002, the appellant was advised by CIC that his application for permanent residence might be refused, because there were grounds to believe that he was or had been a member of an organization that was or had been engaged in terrorism, contrary to s. 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2 (“IA”), which was then in force.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-4", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 9", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Later in May 2002, the appellant was interviewed by an immigration officer. In the course of that interview, he confirmed that he had been a member of the LNSF, but claimed that he had previously exaggerated the extent of his involvement in order to bolster his refugee claim. Although he now claimed that he did not know very much about the LNSF, he was able to name its founder and its current leader. Also, after stating that he had attended LNSF meetings in Libya, he said that he had only discussed the group with friends. Finally, he stated that he had had no contact with the LNSF after leaving Libya, but then acknowledged having received newsletters from chapters in the United States since that time. These contradictions led the immigration officer to conclude that the appellant was or had been a member of an organization that engaged in terrorism. He was found to be inadmissible on that basis.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-5", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 10–11", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "On May 22, 2002, CIC sent the appellant a letter advising him of the possibility of requesting ministerial relief. In July of that year, the appellant applied for that relief. The immigration officer noted, while preparing her report on the interview, that, once again, there were statements in the appellant’s application for relief that contradicted earlier statements he had made. For example, the appellant indicated in this application that he had attended meetings of the LNSF at which he had been trained to approach potential members and raise funds. However, in his interview with the immigration officer, the appellant said that he was unaware how the LNSF funded itself or how it recruited members. The officer concluded that the appellant had been and continued to be a member of the LNSF, but that his involvement had been limited to distributing leaflets and enlisting support for the organization. She therefore recommended that he be granted relief.\n\nAt the same time (July 2002), the officer prepared a Report on Inadmissibility regarding the appellant under s. 44(1) of the IRPA . Her report indicated that he was inadmissible to Canada pursuant to s. 34(1) (f) of the IRPA because he was a member of a terrorist organization.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-6", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 12", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Next, in August 2005, a briefing note for the Minister was prepared by the Canada Border Services Agency (“CBSA”). After having been reviewed by counsel for the appellant, who made no further comment, the note was submitted to the Minister on March 9, 2006. It contained a recommendation that the appellant be granted relief, as there was “not enough evidence to conclude that Mr. Ramadan Agraira’s continued presence in Canada would be detrimental to the national interest” (A.R., vol. I, at p. 9). This recommendation was based on the following considerations: Mr. Ramadan Agraira admitted to joining the LNSF but was only a member for approximately two years. There is some information to suggest that he became a member at a time when the organization was not in its most active phase and well after it was involved in an operation to overthrow the Libyan regime. He initially stated that he had participated in a number of activities on behalf of the organization but later indicated that he had exaggerated the extent of his involvement so that he could make a stronger claim to refugee status in Canada. This is supported to some extent by the fact that his attempts to obtain refugee status in Germany and Canada were rejected on the basis of credibility. Mr. Ramadan Agraira denied having been involved in any acts of violence or terrorism and there is no evidence to the contrary. He appears to have been a regular member who did not occupy a position of trust or authority within the LNSF. He does not appear to have been totally committed to the LNSF specifically as he indicated to the immigration officer at CIC Oshawa that he would support anyone who tried to remove the current regime in Libya through non-violent means. [A.R., vol. I, at p. 9]", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-7", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 13–14", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "On January 27, 2009, the Minister rejected the recommendation in the briefing note. The response he gave was as follows: After having reviewed and considered the material and evidence submitted in its entirety as well as specifically considering these issues: • The applicant offered contradictory and inconsistent accounts of his involvement with the Libyan National Salvation Front (LNSF). • There is clear evidence that the LNSF is a group that has engaged in terrorism and has used terrorist violence in attempts to overthrow a government. • There is evidence that LNSF has been aligned at various times with Libyan Islamic opposition groups that have links to Al-Qaeda. • It is difficult to believe that the applicant, who in interviews with officials indicated at one point that he belonged to a “cell” of the LNSF which operated to recruit and raise funds for LNSF, was unaware of the LNSF’s previous activity. It is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations. Ministerial relief is denied. [A.R., vol. I, at p. 11]\n\nOn March 24, 2009, the appellant received notice that his application for permanent residence was denied. He then applied to the Federal Court for judicial review of the Minister’s decision regarding relief. III. Judicial History A. Federal Court, 2009 FC 1302, 357 F.T.R. 246", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-8", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 15–16", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mosley J. began his analysis by ruling on the standard of review. He held that the appropriate standard was reasonableness, citing the discretionary nature of the decision, the fact that it was not delegable, and the Minister’s expertise in matters of national security and the national interest. He added that the political nature of the decision and the Minister’s special knowledge involving sensitivity to the imperatives of public policy and the nuances of the legislative scheme also weighed in favour of deference.\n\nIn applying the reasonableness standard, Mosley J. considered the fact that the Minister had focused on evidence that the LNSF had engaged in terrorism and been aligned with Libyan Islamic groups that had links to Al-Qaeda. He found, on the contrary, that the evidence of the LNSF’s engagement in terrorism was minimal at best. In particular, the LNSF did not appear on the lists of terrorist organizations of the United Nations, Canada and the United States. Although several Libyan opposition groups had direct links with Al-Qaeda, there was no evidence in the record that LNSF was one of them. Because it had been previously determined that the LNSF was a terrorist group for the purposes of s. 34(1) (f) of the IRPA , the court could not review that finding. However, Mosley J. found it difficult to understand why the Minister had given so much weight to the LNSF’s engagement in terrorism and its alignment with Libyan Islamic groups that had links to Al-Qaeda.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-9", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 17", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mosley J. then referred to the Federal Court’s decision in Abdella v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 1199, 355 F.T.R. 86, in which Gibson J. had relied on the Guidelines to set aside the Minister’s decision to deny relief under s. 34(2). Appendix D to the Guidelines contains five questions to be addressed in the context of an application for such relief: 1. Will the applicant’s presence in Canada be offensive to the Canadian public? 2. Have all ties with the regime/organization been completely severed? 3. Is there any indication that the applicant might be benefiting from assets obtained while a member of the organization? 4. Is there any indication that the applicant might be benefiting from previous membership in the regime/organization? 5. Has the person adopted the democratic values of Canadian society?", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-10", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 18", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mosley J. noted that in the instant case, the Minister had not addressed these questions in the reasons he gave for his decision, nor had he balanced the factors the Federal Court had in past cases identified as being relevant to the determination of what is in the national interest, namely: whether the appellant posed a threat to Canada’s security; whether the appellant posed a danger to the public; the period of time the appellant had been in Canada; whether the determination is consistent with Canada’s humanitarian reputation of allowing permanent residents to settle in Canada; the impact on both the appellant and all other members of society of the denial of permanent residence; and adherence to all Canada’s international obligations. He criticized the Minister for not considering in his decision the facts that the appellant had been residing in Canada since 1997 and had been a productive member of society, that he had no criminal record, and that he owned a business earning over $100,000 a year. In Mosley J.’s view, the exercise of the Minister’s discretion seemed to have been rendered meaningless by the Minister’s “simplistic view that the presence in Canada of someone who at some time in the past may have belonged to a terrorist organization abroad can never be in the national interest” (para. 27).", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-11", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 19–21", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mosley J. granted the application for judicial review and certified the following questions for consideration by the Federal Court of Appeal: When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest? Specifically, must the Minister consider the five factors listed in the Appendix D of IP 10? [para. 32] B. Federal Court of Appeal, 2011 FCA 103, 415 N.R. 121\n\nIn the Federal Court of Appeal, Pelletier J.A. (Blais C.J. and Noël J.A. concurring) considered the issues separately in ruling on the standard of review. He held that establishing the meaning of the term “national interest” for the purposes of s. 34(2) is a question of law in respect of which the Minister has no particular expertise and for which the appropriate standard is therefore correctness. The appropriate standard for reviewing the exercise of the Minister’s discretion, on the other hand, is reasonableness.\n\nPelletier J.A. confirmed that, in an application for ministerial relief, the onus is on the applicant to satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest. Because this onus was reversed in the briefing note, he held that it was open to the Minister to disregard the recommendation made in the note.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-12", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 22–23", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Pelletier J.A. next turned to the interpretation of s. 34(2) of the IRPA . He tracked the legislative evolution of s. 34(2) to find what, in his view, was the correct interpretation of this subsection. He noted that Parliament had transferred the responsibility for exercising the discretion from the Minister of Citizenship and Immigration (“MCI”) to the Minister. As a result of this change, s. 34(2) has to be read in light of the objects of the Department of Public Safety and Emergency Preparedness Act , S.C. 2005, c. 10 (“DPSEPA ”) (the Minister’s enabling statute), the Canada Border Services Agency Act , S.C. 2005, c. 38 (“CBSAA ”) (the statute governing the CBSA, the organization that assists the Minister in his or her duties), and the IRPA . These statutes work together as part of a statutory scheme to which the presumption of coherence must be applied.\n\nIn May 2002, when the appellant’s admissibility interview took place, the IA was in force. Under the IA, the MCI was responsible both for the determination of inadmissibility and for the decision on granting relief. He or she was also responsible for deciding whether to grant exemptions from the IA on humanitarian and compassionate (“H&C”) grounds.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-13", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 24–25", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "On June 28, 2002, the IRPA replaced the IA. Under the transitional provisions of the IRPA , the appellant’s application for relief would now be governed by the IRPA , and more specifically by s. 34 of that Act. At that time, the MCI was still responsible for deciding whether to grant relief under s. 34(2). After the CBSAA was passed in 2005, the responsible minister became “[t]he Minister as defined in section 2 ” of the CBSAA (IRPA , s. 4(2) , repl. by S.C. 2005, c. 38, s. 118 ). In 2008, the Minister was specifically identified as the responsible minister. The MCI retained the ability to grant exemptions from the IRPA on H&C grounds.\n\nThis review led Pelletier J.A. to conclude that under the statutory scheme, the Minister was responsible for deciding whether to grant relief, whereas the MCI continued to be responsible for deciding whether to grant exemptions on the basis of H&C considerations. Hence, Parliament intended that ministerial relief would be granted or denied on the basis of considerations other than those that could support an application for H&C relief. The proper procedure for making an application based on H&C considerations is that under s. 25 of the IRPA , not that of an application for ministerial relief under s. 34(2).", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-14", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 26–27", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Pelletier J.A. then equated the “national interest”, for the purposes of s. 34(2), with national security and public safety. He found support for this proposition in the DPSEPA and the CBSAA. The DPSEPA emphasizes the Minister’s responsibility for public safety and emergency preparedness. Under the CBSAA, the Minister is also responsible for the CBSA, whose purpose is, inter alia, to provide “integrated border services that support national security and public safety priorities” (CBSAA , s. 5 ). Pelletier J.A. found that this statutory scheme supports the view that the exercise of the Minister’s discretion under s. 34(2) must be primarily, if not exclusively, guided by his or her national security and public safety role.\n\nPelletier J.A. next considered the effect of the Guidelines, in which the following definition of the term “national interest” appears: “The consideration of national interest involves the assessment and balancing of all factors pertaining to the applicant’s admission against the stated objectives of the Act as well as Canada’s domestic and international interests and obligations” (s. 6).", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-15", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 28–29", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Pelletier J.A. noted that the Guidelines cannot alter the law as enacted by Parliament and found that they are of limited application now that the Minister, as opposed to the MCI, has become responsible for decisions on granting ministerial relief under s. 34(2). This conclusion was based on s. 4(2) (c) of the IRPA , which provides that the Minister is responsible for the establishment of policies regarding “inadmissibility on grounds of security”. As a consequence, the five factors set out in the Guidelines need not be considered in disposing of relief applications. For Pelletier J.A., this Court’s dictum in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 72, to the effect that guidelines are “a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section” does not apply in the case of the Guidelines. This is because the Guidelines serve to identify foreign nationals whose presence in Canada would be detrimental to the national interest, and thus to eliminate unsuitable candidates for relief. They do not serve, as was the case in Baker, to identify suitable candidates for relief.\n\nPelletier J.A. then went on to hold that the fact that a finding of inadmissibility under s. 34(1) might negate the possibility of relief under s. 34(2) does not render that relief illusory. Rather, on the basis of Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, the relief under s. 34(2) was meant to apply only in exceptional cases in which the applicant’s association with a terrorist group was innocent or coerced.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-16", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 30–32", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, Pelletier J.A. concluded that the Minister’s decision was reasonable. The Minister had addressed the appellant’s submission that his involvement with the LNSF was either non-existent, innocent or trivial and had found the appellant’s account of his involvement to be “contradictory and inconsistent” (para. 69). Ultimately, because the appellant lacked credibility as a result of these contradictions and inconsistencies, the Minister had had no faith in any of his representations. Accordingly, the Minister had not acted unreasonably in reaching the conclusion he had. The application for judicial review was dismissed, and the certified questions were answered as follows: 1- When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest? Answer: National security and public safety, as set out in para. 50 of these reasons. 2- Specifically, must the Minister consider the five factors listed in the Appendix D of IP10? Answer: No. [para. 74] IV. Analysis A. Issues\n\nThe issues to be resolved in this appeal are as follows: (1) Is the standard of review for the Minister’s decision reasonableness or correctness? (2) Is the Minister’s decision valid? (3) Was the decision unfair, and did it fail to meet the appellant’s legitimate expectations?\n\nAs I mentioned above, a corollary issue related to the first and second issues is the meaning of the term “national interest” in s. 34(2) of the IRPA . B. Positions of the Parties (1) Position of the Appellant", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-17", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 33–34", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant submits that the standard of review applicable to all the issues before this Court is correctness, because they all constitute questions of pure law and natural justice. The Minister’s decision was incorrect in that it was based on an erroneous view of the meaning of the term “national interest” in s. 34(2) of the IRPA and it failed to meet the appellant’s legitimate expectations as to what factors would be considered in assessing his application for relief.\n\nThe appellant contends that the Federal Court of Appeal relied too heavily on the legislative transfer of ministerial responsibility in interpreting the term “national interest” for the purposes of s. 34(2). This shift in responsibility between governmental departments does not indicate a concomitant legislative intent to change the interpretation of the IRPA . He also argues that the term “national interest” should be given a broader meaning than the one ascribed to it by the Federal Court of Appeal. Although public security and national defence should both be taken into account as relevant factors in the Minister’s exercise of discretion, they should not be the only factors considered in applying the “national interest” test. In taking an unduly narrow view of the term “national interest” by equating it with one aspect of that interest (national security and public safety), the Federal Court of Appeal set a precedent which unlawfully fetters the Minister’s discretion by requiring that he or she consider only that one aspect when dealing with future applications for relief.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-18", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 35", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, the appellant submits that the Minister’s decision was unfair in that it failed to meet legitimate expectations created by the Guidelines. The Guidelines were clear and unambiguous representations made by the government to the public inasmuch as they were publicly available, had been routinely used by the Minister, and had been issued to ensure consistency. They created an expectation that certain factors extrinsic to national security would be considered in assessing s. 34(2) applications by instructing applicants to address, inter alia, the following factors in their submissions: the reason why the applicant is seeking admission to Canada, any special circumstances related to the application, and any current activities in which the applicant is involved. The appellant further contends that a letter he received from CIC in May 2002 created a legitimate expectation that H&C factors would be considered in assessing his application for relief. It stated that a decision under s. 34(2) would require the Minister to assess both the detriment the appellant posed to the national interest of Canada and any H&C circumstances pertinent to his situation. According to the appellant, this legitimate expectation was not met, because the Minister did not, in assessing his application, consider the factors he had been told were relevant. (2) Position of the Respondent", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-19", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 36–37", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent submits that the standard of review is reasonableness and that the Minister’s decision was reasonable. The Minister’s interpretation of the term “national interest” is entitled to deference, as the IRPA does not specify any factors that must be considered in this regard, and the term is found in the Minister’s enabling statute, with which the Minister has particular familiarity. A decision on an application for relief under s. 34(2) falls at the political end of the spectrum, is discretionary, and concerns matters in which the Minister has expertise.\n\nAccording to the respondent, the legislative history of the IRPA and the related legislation supports the view that the national security and public safety aspects of the national interest are to be the predominant considerations in determining whether to grant s. 34(2) relief, but these remain subject to any other considerations the Minister deems appropriate, except for H&C factors. The purpose of s. 34 is to ensure the safety and security of Canadians, while s. 34(2) provides for relief for innocent or coerced members of terrorist organizations who would otherwise be inadmissible. Section 34(2) must be seen as complementary to s. 34(1). Since s. 34(1) deals with inadmissibility on security grounds, the dominant considerations under s. 34(2) must be national security and public safety. H&C factors are not relevant to a determination of the “national interest” under s. 34(2), as they are properly dealt with in H&C applications under s. 25 of the IRPA . This interpretation of s. 34(2) is bolstered by the legislative transfer of responsibility for decisions on applications for relief to the Minister, whose mandate is the protection of public safety.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-20", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 38", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Ultimately, the respondent argues, the Minister’s decision in this case was reasonable. It was transparent, intelligible and justifiable. It also fell within the range of possible acceptable outcomes that meet the standard of reasonableness in accordance with Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The appellant had offered self-serving and contradictory explanations of his role in, and activities for, the LNSF, and therefore lacked credibility. It was also clear that he had had sustained contact with a group that had committed terrorist acts.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-21", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 39", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent also contends that there was no failure to meet legitimate expectations in this case. The Guidelines emphasize the exceptional and discretionary nature of ministerial relief, and their stated objectives emphasize national security and public safety. They created expectations with respect to procedures, but not to substantive rights. They could not alter the law as laid down by Parliament and so could not mandate the consideration of factors not relevant to the national interest analysis. In any event, immigration officials did follow the procedures they were expected to follow in this case. A letter sent from CIC to the appellant in May 2002 stated that the ministerial relief process would require an assessment of the detriment he posed to the national interest, and of any relevant H&C circumstances. The appellant had a sufficient opportunity to present evidence and submissions in support of his case. He was then provided with a further opportunity to respond to information officials had obtained and provided to the Minister. The Minister reviewed the application and the briefing note, and exercised his statutory discretion as he saw fit. He provided sufficient reasons for his decision, in which he indicated that he had “reviewed and considered the material and evidence submitted in its entirety”. C. Forms of Ministerial Relief (1) Sections 25 and 25.1 of the IRPA", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-22", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 40", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Before I turn to the Minister’s decision, it will be helpful to explain the two forms of ministerial relief currently available to foreign nationals in Canada who are deemed to be inadmissible. The first form, H&C relief, is provided for in ss. 25 and 25.1 of the IRPA : 25. (1) Subject to subsection (1.2), the [MCI] must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the [MCI] is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. . . . 25.1 (1) The [MCI] may, on the [MCI’s] own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the [MCI] is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-23", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 41", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "These provisions contemplate the granting of ministerial relief to foreign nationals seeking permanent resident status who are inadmissible or otherwise do not meet the requirements of the IRPA . Under them, the MCI may, either upon request or of his own accord, “grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of” the IRPA . However, relief of this nature will only be granted if the MCI “is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national”. H&C considerations include such matters as children’s rights, needs, and best interests; maintaining connections between family members; and averting the hardship a person would suffer on being sent to a place where he or she has no connections (see Baker, at paras. 67 and 72). (2) Section 34(2) of the IRPA", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-24", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 42", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 34(2) of the IRPA contemplates a different form of ministerial relief based upon the “national interest”. Section 34 reads as follows: 34. (1) [Security] A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). (2) [Exception] The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-25", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 43–44", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "As I mentioned above, the appellant was found to be inadmissible on security grounds for having been, in the words of s. 34(1)(f), “a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph . . . (c)”, namely acts of terrorism. He sought relief under s. 34(2), which provides that the Minister may make an exception where a person has been found to be inadmissible, on being satisfied that the person’s continued “presence in Canada would not be detrimental to the national interest”. As the wording of the section (“who satisfies the Minister”) implies, the onus is on the person who applies for relief to prove that his or her continued presence in Canada would not be detrimental to the national interest.\n\nIn short, s. 34(2) of the IRPA establishes a pathway for relief which is conceptually and procedurally distinct from the relief available under s. 25 or s. 25.1. It should be borne in mind that an applicant who fails to satisfy the Minister that his or her continued presence in Canada would not be detrimental to the national interest under s. 34(2) may still bring an application for H&C relief. Whether such an application would be successful is another matter. D. Standard of Review (1) Relationship Between the Administrative Law Standards of Review and the Appellate Standards of Review", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-26", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 45–47", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first issue in this appeal concerns the standard of review applicable to the Minister’s decision. But, before I discuss the appropriate standard of review, it will be helpful to consider once more the interplay between (1) the appellate standards of correctness and palpable and overriding error and (2) the administrative law standards of correctness and reasonableness. These standards should not be confused with one another in an appeal to a court of appeal from a judgment of a superior court on an application for judicial review of an administrative decision. The proper approach to this issue was set out by the Federal Court of Appeal in Telfer v. Canada Revenue Agency, 2009 FCA 23, 386 N.R. 212, at para. 18: Despite some earlier confusion, there is now ample authority for the proposition that, on an appeal from a decision disposing of an application for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriate standard of review and applied it correctly. The appellate court is not restricted to asking whether the first-level court committed a palpable and overriding error in its application of the appropriate standard.\n\nIn Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247, Deschamps J. aptly described this process as “‘step[ping] into the shoes’ of the lower court” such that the “appellate court’s focus is, in effect, on the administrative decision” (emphasis deleted).\n\nThe issue for our consideration can thus be summarized as follows: Did the application judge choose the correct standard of review and apply it properly? (2) What Is the Standard of Review?", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-27", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 48", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "As this Court held in Dunsmuir, a court deciding an application for judicial review must engage in a two-step process to identify the proper standard of review. First, it must consider whether the level of deference to be accorded with regard to the type of question raised on the application has been established satisfactorily in the jurisprudence. The second inquiry becomes relevant if the first is unfruitful or if the relevant precedents appear to be inconsistent with recent developments in the common law principles of judicial review. At this second stage, the court performs a full analysis in order to determine what the applicable standard is. Determination of the Standard in Light of the Jurisprudence", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-28", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 49", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, the standard of review applicable in the case at bar has been satisfactorily determined in past decisions to be reasonableness. A host of cases from the Federal Court indicate that reasonableness is the standard for reviewing decisions on applications for ministerial relief under s. 34(2) of the IRPA : Esmaeili-Tarki v. Canada (Minister of Citizenship and Immigration), 2005 FC 509 (CanLII); Miller v. Canada (Solicitor General), 2006 FC 912, [2007] 3 F.C.R. 438; Naeem v. Canada (Minister of Citizenship and Immigration), 2007 FC 123, [2007] 4 F.C.R. 658; Al Yamani v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 381, 311 F.T.R. 193; Soe v. Canada (Public Safety and Emergency Preparedness), 2007 FC 461 (CanLII); Kanaan v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 241, 71 Imm. L.R. (3d) 63; Chogolzadeh v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 405, 327 F.T.R. 39; Tameh v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 884, 332 F.T.R. 158; Kablawi v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 1011, 333 F.T.R. 300; Ramadan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1155, 335 F.T.R. 227; Afridi v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 1192, 75 Imm. L.R. (3d) 291; Ismeal v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 1366, 77 Imm. L.R. (3d) 310; Abdella. This jurisprudence is well established, and the appellant has not shown why it should not be relied on in this appeal.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-29", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 50–51", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The applicability of the reasonableness standard can be confirmed by following the approach discussed in Dunsmuir. As this Court noted in that case, at para. 53, “[w]here the question is one of fact, discretion or policy, deference will usually apply automatically”. Since a decision by the Minister under s. 34(2) is discretionary, the deferential standard of reasonableness applies. Also, because such a decision involves the interpretation of the term “national interest” in s. 34(2), it may be said that it involves a decision maker “interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir, at para. 54). This factor, too, confirms that the applicable standard is reasonableness. (3) Meaning of Reasonableness\n\nIn Dunsmuir, the Court defined reasonableness as follows: . . . a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47]", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-30", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 52", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, Abella J., for a unanimous Court, returned to the meaning of reasonableness and deference. She stated: This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for “justification, transparency and intelligibility”. To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist. . . . Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47). In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48).", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-31", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 52–54", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. . . . if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [paras. 13-16]\n\nIn one of its most recent comments on this point, in Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, the Court emphasized that the reviewing court must consider the tribunal’s decision as a whole, in the context of the underlying record, to determine whether it was reasonable: . . . administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708). [para. 3]\n\nI will now consider whether the Minister’s decision was reasonable. The remainder of my reasons will focus on this issue. E. Meaning of “National Interest” Under Section 34(2) of the IRPA", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-32", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 55–57", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The meaning of the term “national interest” in s. 34(2) of the IRPA was central to the Minister’s exercise of discretion in this case. As is plain from the statute, the Minister exercises this discretion by determining whether he or she is satisfied by the applicant that the applicant’s presence in Canada would not be detrimental to the national interest. The meaning of “national interest” in the context of this section is accordingly key, as it defines the standard the Minister must apply to assess the effect of the applicant’s presence in Canada in order to exercise his or her discretion.\n\nThe Minister, in making his decision with respect to the appellant, did not expressly define the term “national interest”. The first attempt at expressly defining it was by Mosley J. in the Federal Court, and he also certified a question concerning this definition for the Federal Court of Appeal’s consideration. We are therefore left in the position, on this issue, of having no express decision of an administrative decision maker to review.\n\nThis Court has already encountered and addressed this situation, albeit in a different context, in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. In that case, Rothstein J. held that a decision maker’s decision on the merits may imply a particular interpretation of the statutory provision at issue even if the decision maker has not expressed an opinion on that provision’s meaning.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-33", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 58", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The reasoning from Alberta Teachers’ Association can be applied to the case at bar. It is evident from the Minister’s holding that “[i]t is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations” that the Minister made a determination of the meaning of “national interest”. An interpretative decision as to that term is necessarily implied within his ultimate decision on ministerial relief, although this Court is not in a position to determine with finality the actual reasoning of the Minister. In these circumstances, we may “consider the reasons that could be offered for the [Minister’s] decision when conducting a reasonableness review” of that decision (Alberta Teachers’ Association, at para. 54). Accordingly, I now turn to consider what appears to have been the ministerial interpretation of “national interest”, based on the Minister’s “express reasons” and the Guidelines, which inform the scope and context of those reasons. I will then assess whether this implied interpretation, and the Minister’s decision as a whole, were reasonable.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-34", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 59", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Minister stated in his reasons that he had “reviewed and considered the material and evidence submitted in its entirety”. This material included the following information set out in the CBSA’s briefing note, which addressed many of the questions presented in the Guidelines: 1. The extent of the appellant’s membership in, and activities on behalf of, the LNSF are in question. 2. At most, the appellant was a “passive member” of the LNSF who carried out “basic functions”. He was never involved in violent acts. 3. The appellant joined the LNSF in 1994 to support democracy, freedom of speech, and human rights in Libya. At that time, the organization was, by and large, no longer engaged in violence. In any event, the appellant claimed to have no knowledge of the LNSF’s involvement in violence and would not have supported the LNSF had it espoused the use of violence to achieve political change. 4. There is evidence to suggest that the appellant severed all ties with the LNSF when he came to Canada in 1997. 5. Throughout, the appellant’s goal has been to support the establishment of a democratic system of government in Libya. 6. The appellant has two children, attended English as a second language classes, and owns his own transport business. (A.R., vol. I, at pp. 5-9)", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-35", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 60–62", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Guidelines did not constitute a fixed and rigid code. Rather, they contained a set of factors, which appeared to be relevant and reasonable, for the evaluation of applications for ministerial relief. The Minister did not have to apply them formulaically, but they guided the exercise of his discretion and assisted in framing a fair administrative process for such applications. As a result, the Guidelines can be of assistance to the Court in understanding the Minister’s implied interpretation of the “national interest”.\n\nMoreover, the Minister placed particular emphasis on matters related to national security and public safety in the reasons he gave for his decision. These included: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF, a group that has engaged in terrorism; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF.\n\nTaking all the above into account, had the Minister expressly provided a definition of the term “national interest” in support of his decision on the merits, it would have been one which related predominantly to national security and public safety, but did not exclude the other important considerations outlined in the Guidelines or any analogous considerations (see Appendix 1 (the relevant portions of the Guidelines)).", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-36", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 63–64", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "As a result of my comments above on the standard of review, I am of the view that the Minister is entitled to deference as regards this implied interpretation of the term “national interest”. As Rothstein J. stated, “[w]here the reviewing court finds that the tribunal has made an implicit decision on a critical issue, the deference due to the tribunal does not disappear” (Alberta Teachers’ Association, at para. 50).\n\nIn my view, the Minister’s interpretation of the term “national interest”, namely that it is focused on matters related to national security and public safety, but also encompasses the other important considerations outlined in the Guidelines and any analogous considerations, is reasonable. It is reasonable because, to quote the words of Fish J. from Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, it “accords . . . with the plain words of the provision, its legislative history, its evident purpose, and its statutory context” (para. 46). That is to say, the interpretation is consistent with Driedger’s modern approach to statutory interpretation: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. (Construction of Statutes (2nd ed. 1983), at p. 87) (1) Plain Words of the Provision", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-37", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 65–66", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "There is no dispute between the parties that the term “national interest” refers to matters which are of concern to Canada and to Canadians. There is no doubt that public safety and national security are matters which are of concern to Canada and to Canadians. It is equally clear, however, that more than just public safety and national security are of concern to Canada and to Canadians. For example, the plain meaning of the term “national interest” would also include the preservation of the values that underlie the Canadian Charter of Rights and Freedoms and the democratic character of the Canadian federation, and in particular the protection of the equal rights of every person to whom its laws and its Constitution apply. The plain words of the provision therefore favour a broader reading of the term “national interest” than the one suggested by the respondent and by the Federal Court of Appeal, which would limit its meaning to the protection of public safety and national security. The words of the statute are consistent with the Minister’s implied interpretation of this term, which relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations. The legislative history of the provision is also relevant to an understanding of the range of values and interests underlying the concept of the national interest. (2) Legislative History of the Provision\n\nThe legislative history of s. 34(2) is a long one. In these reasons, I will only discuss the salient points of this history, those which serve to demonstrate that the Minister’s implied interpretation of the term “national interest” is consistent with it.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-38", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 67–69", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Ministerial relief from a finding of inadmissibility first became available in 1952. Relief was available to persons who were members of or associated with any organization, group or body that was or had been involved in the subversion by force or other means of democratic government, institutions or processes. Those who sought such relief had to satisfy the minister that they had ceased to be members of or associated with the organization, group or body in question and that their admission “would not be detrimental to the security of Canada” (Immigration Act, R.S.C. 1952, c. 325, s. 5(l)). Parliament made it clear at the time that it intended the focus of an application for ministerial relief to be national security.\n\nIn 1977, the provisions of the Immigration Act on inadmissibility were revised to read, in part, as follows: 19. (1) No person shall be granted admission if he is a member of any of the following classes: . . . (e) persons who have engaged in or who there are reasonable grounds to believe will engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, except persons who, having engaged in such acts, have satisfied the Minister that their admission would not be detrimental to the national interest; (Immigration Act, 1976, S.C. 1976-77, c. 52, s. 19(1)(e))\n\nThus, in 1977, Parliament made a clear decision to change the approach to ministerial relief. The test would no longer focus solely on national security, as access to relief would instead be premised on a broader array of domestic and international considerations constituting the “national interest”. Since then, the provisions on ministerial relief in both the IA and the IRPA have at all times referred to the “national interest”.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-39", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 70", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Parliament was (or at least must be taken to have been) aware of the previous “detrimental to the security of Canada” test when it decided to enact, and later to keep, the “national interest” test for ministerial relief. The fact that, at all material times, the wording of s. 34(2) referred to the applicant’s not being detrimental to the “national interest”, as opposed to not being detrimental to the “security of Canada”, strongly suggests that Parliament did not intend the term “national interest” to relate exclusively to national security and public safety. Had that been the case, Parliament could have returned to the expression “security of Canada” in enacting s. 34(2).", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-40", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 71–72", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA replaced the IA in 2002. As it was enacted in a post-9/11 world, the IRPA was clearly in part a response to the threats of the complex and dangerous environment which had been developing internationally. In support of his contention that the interpretation of the term “national interest” should focus on national security and public safety, the respondent quotes the following passage from a Senate Committee report in his factum: The Committee recognizes that Bill C-11 represents a major overhaul of Canada’s immigration and refugee protection legislation, and it will thus likely set the standard for many years to come. The Committee also fully appreciates that the current context in which the Bill is being considered is one of heightened security concerns following the profoundly tragic events of 11 September 2001 in the United States. In this context the Committee realizes that the Bill must embody a balance that will respect the needs and rights of individuals while simultaneously serving the public interest particularly with respect to security concerns and meeting Canada’s international obligations. [Emphasis added.] (Standing Senate Committee on Social Affairs, Science and Technology, “Ninth Report”, 1st Sess., 37th Parl., October 23, 2001 (online))\n\nThis passage certainly highlights the IRPA ’s role in “serving the public interest . . . with respect to security concerns”. However, it does not limit the national interest to security concerns. It also highlights the fact that meeting Canada’s international obligations (including, presumably, obligations stemming from rules of customary and conventional international human rights law) is an important part of the national interest.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-41", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 73", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "In 2005, the DPSEPA formally established both the Department of Public Safety and Emergency Preparedness and the Minister’s post. The respondent submits that the creation of this new department and of the CBSA, as well as the transfer of ministerial responsibility for decisions under s. 34(2), formed part of a new national security policy instituted by Parliament in response to the events of September 11, 2001. In particular, he argues that the legislative transfer of the responsibility for making such decisions from the MCI to the Minister, occurring as it did in the broader context of national security and public safety, supports the Federal Court of Appeal’s interpretation of the term “national interest”.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-42", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 74", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "I am not persuaded that the transfer of ministerial responsibility for s. 34(2) applications serves as a sufficient basis for upholding the Federal Court of Appeal’s interpretation of the term “national interest”. On its own, this transfer should not be read as changing, nor does it change, the substantive law governing relief applications under s. 34(2). Ministerial responsibilities may be reassigned for a wide variety of reasons. If this argument was valid, it would imply that the meaning of a law might change whenever ministerial responsibilities are reassigned. This would be a new and perplexing principle of interpretation. There is a presumption against the implicit alteration of the law according to which, absent an explicit change in the wording of a provision, it is presumed that Parliament did not intend to amend its meaning. Although the ministerial responsibility for deciding relief applications under s. 34(2) was transferred in 2005, Parliament did not amend the wording of this provision. Therefore, the presumption against implicit alteration applies, and there was no intent to amend the meaning of the term “national interest”. As the appellant points out in his factum, this presumption is not rebutted by a mere transfer of ministerial responsibility: It does not make sense that every time Parliament decides to change the responsibilities of particular Ministers for administrative purposes, or without indicating that there is a substantive reason for a change, the words of a statute should be given different meanings. A mere transfer in Ministerial responsibility is not sufficient to establish that the change is meant to have a substantive effect on the rights of persons who are affected by legislation administered by the various ministers.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-43", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 74–77", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court of Appeal’s interpretation of national interest effectively amends section 34(2). Amending legislation is a legislative function, and falls outside of the judicial function. [para. 76]\n\nIn summary, this review demonstrates that the Minister’s implied interpretation of the term “national interest” — that it relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations — is consistent with the legislative history of the provision. (3) Purpose of the Provision\n\nThe respondent argues that the IRPA is concerned with public safety and national security. More specifically, he argues that the purpose of s. 34(1)(c) and (f) is to ensure the safety and security of Canadians, while s. 34(2) provides for relief only for innocent or coerced members of terrorist organizations who would otherwise be inadmissible.\n\nThe respondent is correct in saying that the IRPA is concerned with national security and public safety. In fact, the Court recognized this in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539: The objectives as expressed in the IRPA indicate an intent to prioritize security. . . . Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act. [para. 10]", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-44", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 78–79", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "That said, the respondent’s argument that s. 34(2) is focused exclusively on national security and public safety, and that it provides for relief only for innocent or coerced members of terrorist organizations, fails to give adequate consideration to the other objectives of the IRPA . Section 3(1) of the IRPA sets out 11 objectives of the Act with respect to immigration. Only two of these are related to public safety and national security: to protect public health and safety and to maintain the security of Canadian society (s. 3(1)(h)), and to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks (s. 3(1)(i)). The other nine objectives relate to other factors that properly inform the interpretation of the term “national interest” (e.g., “to permit Canada to pursue the maximum social, cultural and economic benefits of immigration” (s. 3(1)(a))). The explicit presence of these other objectives in the IRPA strongly suggests that this term is not limited to public safety and national security, but that the Parliament of Canada also intended that it be interpreted in the context of the values of a democratic state. Section 34 is intended to protect Canada, but from the perspective that Canada is a democratic nation committed to protecting the fundamental values of its Charter and of its history as a parliamentary democracy.\n\nAccordingly, the Minister’s broad implied interpretation of the term “national interest” is also consistent with the purpose of the provision. (4) Context of the Provision", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-45", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 80–81", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "As the Court noted in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, “[t]he preferred approach [to statutory interpretation] recognizes the important role that context must inevitably play when a court construes the written words of a statute” (para. 27). The context of s. 34(2) provides much guidance for the interpretation of the term “national interest”.\n\nFirst, according to the presumption of consistent expression, when different terms are used in a single piece of legislation, they must be understood to have different meanings. If Parliament has chosen to use different terms, it must have done so intentionally in order to indicate different meanings. The term “national interest” is used in s. 34(2), which suggests that what is to be considered by the Minister under that provision is broader than the considerations of whether the individual is “a danger to the security of Canada” (s. 34(1)(d)) or whether he or she “might endanger the lives or safety of persons in Canada” (s. 34(1)(e)), both of which appear in s. 34(1). If Parliament had intended national security and public safety to be the only considerations under s. 34(2), it could have said so using the type of language found in s. 34(1). It did not do so, however.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-46", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 82–83", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "In a similar vein, the terms “national security”, “danger to the public” and “endanger the safety of any person” each appear several times elsewhere in the IRPA . In light of the presumption of consistent expression, “national interest” cannot be synonymous with any of these terms. Rather, the use of the term “national interest” implies that the Minister is to carry out a broader analysis under s. 34(2). Contrary to what the Federal Court of Appeal held in the case at bar, in determining whether a person’s continued presence in Canada would not be detrimental to the national interest, the Minister must consider more than just national security and whether the applicant is a danger to the public or to the safety of any person.\n\nSecond, if s. 34(2) were concerned solely with the danger an applicant poses to the security of Canada, it would be impossible for a person found to be inadmissible under s. 34(1)(d) (“being a danger to the security of Canada”) to obtain relief under s. 34(2). This is an absurd interpretation which must be avoided.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-47", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 84", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Third, the respondent argues that, because of the possibility of H&C relief under s. 25 of the IRPA , the principle of consistent expression dictates that H&C factors should not be relevant to a determination of what is in the national interest under s. 34(2). I agree, but with some qualifications. H&C considerations are more properly considered in the context of a s. 25 application, and s. 34 should not be transformed into an alternative form of humanitarian review. But s. 34 does not necessarily exclude the consideration of personal factors that might be relevant to this particular form of review. For example, such considerations may have an impact on the assessment of the applicant’s personal characteristics for the purpose of determining whether he or she can be viewed as a threat to the security of Canada. Of the considerations in the Guidelines unrelated to national security and public safety which formed part of the Minister’s implied interpretation, only very few are H&C factors. The fact that the Minister considered such factors did not render his interpretation of the term “national interest” unreasonable.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-48", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 85–86", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, the broader context of s. 34(2) of the IRPA also includes the Guidelines. Although not law in the strict sense, and although they are liable to evolve over time as the context changes, thus giving rise to new requirements adapted to different contexts, guidelines are “a useful indicator of what constitutes a reasonable interpretation of the . . . section” (Baker, at para. 72). The Guidelines were published in 2005, and they applied to applications for ministerial relief under s. 34(2) at the time the Minister reached his decision on the appellant’s application. As is evident from the numerous considerations contained in Appendix 1, the Guidelines represent a broad approach to the concept of the “national interest”. They do not simply equate the “national interest” with national security and public safety, as the Federal Court of Appeal did. Rather, they suggest that the national interest analysis is broader than that, although its focus may properly be on national security and public safety.\n\nThus, the Minister’s implied interpretation of the term “national interest” — that it relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations — is consistent with all these contextual indications of the meaning of this term.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-49", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 87–88", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "In summary, an analysis based on the principles of statutory interpretation reveals that a broad range of factors may be relevant to the determination of what is in the “national interest”, for the purposes of s. 34(2). Even excluding H&C considerations, which are more appropriately considered in the context of a s. 25 application, although the factors the Minister may validly consider are certainly not limitless, there are many of them. Perhaps the best illustration of the wide variety of factors which may validly be considered under s. 34(2) can be seen in the ones set out in the Guidelines (with the exception of the H&C considerations included in the Guidelines). Ultimately, which factors are relevant to the analysis in any given case will depend on the particulars of the application before the Minister (Soe, at para. 27; Tameh, at para. 43).\n\nThis interpretation is compatible with the interpretation of the term “national interest” the Minister might have given in support of his decision on the appellant’s application for relief. It is consistent with that decision. The Minister’s implied interpretation of the term related predominantly to national security and public safety, but did not exclude the other important considerations outlined in the Guidelines or any analogous considerations. In light of my discussion of the principles of statutory interpretation, this interpretation was eminently reasonable. F. Is the Minister’s Decision Valid?", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-50", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 89–90", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Having concluded that the Minister’s implied interpretation of the term “national interest” is reasonable, I should also confirm that the decision as a whole is valid. The Minister’s reasons were justifiable, transparent and intelligible. Although brief, they made clear the process he had followed in ruling on the appellant’s application. He reviewed and considered all the material and evidence before him. Having done so, he placed particular emphasis on: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF, a group that has engaged in terrorism; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF. The Minister’s reasons revealed that, on the basis of his review of the evidence and other submissions as a whole, and of these factors in particular, he was not satisfied that the appellant’s continued presence in Canada would not be detrimental to the national interest. In short, his reasons allow this Court to clearly understand why he made the decision he did.\n\nFurthermore, the Minister’s decision falls within a range of possible acceptable outcomes which are defensible in light of the facts and the law. The burden was on the appellant to show that his continued presence in Canada would not be detrimental to the national interest. The Minister declined to provide discretionary relief to the appellant, as he was not satisfied that this burden had been discharged. His conclusion was acceptable in light of the facts which had been submitted to him.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-51", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 91–92", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "As this Court held in Suresh, a court reviewing the reasonableness of a minister’s exercise of discretion is not entitled to engage in a new weighing process (para. 37; see also Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 39). As the Minister stated in his reasons, he had “reviewed and considered” (i.e. weighed) all the factors set out in the appellant’s application which were relevant to determining what was in the “national interest” in light of his reasonable interpretation of that term. He gave particular weight to certain factors pertaining to national security and public safety and emphasized them in his reasons, namely: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF. Given that the Minister considered and weighed all the relevant factors as he saw fit, it is not open to the Court to set the decision aside on the basis that it is unreasonable.\n\nIn all the circumstances, it cannot be said that either the result or the Minister’s decision as a whole was unreasonable. But a final issue remains: it relates to an allegation of a failure to meet the requirements of procedural fairness. G. Was the Decision Unfair, and Did It Fail to Meet the Appellant’s Legitimate Expectations?", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-52", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 93–94", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "As this Court noted in Dunsmuir, at para. 79, “[p]rocedural fairness is a cornerstone of modern Canadian administrative law. Public decision makers are required to act fairly in coming to decisions that affect the rights, privileges or interests of an individual.” The Court’s comment that “[p]rocedural fairness has many faces” (Dunsmuir, at para. 77) is also relevant to this case.\n\nThe particular face of procedural fairness at issue in this appeal is the doctrine of legitimate expectations. This doctrine was given a strong foundation in Canadian administrative law in Baker, in which it was held to be a factor to be applied in determining what is required by the common law duty of fairness. If a public authority has made representations about the procedure it will follow in making a particular decision, or if it has consistently adhered to certain procedural practices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been. Likewise, if representations with respect to a substantive result have been made to an individual, the duty owed to him by the public authority in terms of the procedures it must follow before making a contrary decision will be more onerous.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-53", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 95–96", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The specific conditions which must be satisfied in order for the doctrine of legitimate expectations to apply are summarized succinctly in a leading authority entitled Judicial Review of Administrative Action in Canada: The distinguishing characteristic of a legitimate expectation is that it arises from some conduct of the decision-maker, or some other relevant actor. Thus, a legitimate expectation may result from an official practice or assurance that certain procedures will be followed as part of the decision-making process, or that a positive decision can be anticipated. As well, the existence of administrative rules of procedure, or a procedure on which the agency had voluntarily embarked in a particular instance, may give rise to a legitimate expectation that such procedures will be followed. Of course, the practice or conduct said to give rise to the reasonable expectation must be clear, unambiguous and unqualified. [Emphasis added.] (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §7:1710; see also Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, at para. 29; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 68.)\n\nIn Mavi, Binnie J. recently explained what is meant by “clear, unambiguous and unqualified” representations by drawing an analogy with the law of contract (at para. 69): Generally speaking, government representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-54", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 97", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "An important limit on the doctrine of legitimate expectations is that it cannot give rise to substantive rights (Baker, at para. 26; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557). In other words, “[w]here the conditions for its application are satisfied, the Court may [only] grant appropriate procedural remedies to respond to the ‘legitimate’ expectation” (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 131 (emphasis added)).", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-55", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 98", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the case at bar, the Guidelines created a clear, unambiguous and unqualified procedural framework for the handling of relief applications, and thus a legitimate expectation that that framework would be followed. The Guidelines were published by CIC, and, although CIC is not the Minister’s department, it is clear that they are “used by employees of [both] CIC and the CBSA for guidance in the exercise of their functions and in applying the legislation” (R.F., at para. 108). The Guidelines are and were publicly available, and, as Appendix 2 to these reasons illustrates, they constitute a relatively comprehensive procedural code for dealing with applications for ministerial relief. Thus, the appellant could reasonably expect that his application would be dealt with in accordance with the process set out in them. In brief, this process is as follows: 1. Following the receipt of an application for relief, the CIC officer provides the applicant with a copy of the “National Interest Information Sheet”. The applicant is given 15 days to send his or her submission to the local CIC office. 2. Upon receipt of the applicant’s submission, the CIC officer prepares a report which discusses the current situation regarding the applicant’s ground for inadmissibility, the details of the applicant’s application for relief, and any personal or exceptional circumstances of the applicant that should be considered. 3. The CIC report is forwarded to the National Security Division, Intelligence Directorate, CBSA, along with the applicant’s submission and all supporting documents. The CBSA may conduct further investigations at this stage. 4. The CBSA analyst prepares a recommendation to the Minister, which includes all supporting documentation. 5.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-56", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 98–99", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "A copy of the recommendation to the Minister is disclosed to the applicant, who may then make additional submissions or provide additional documents in response. 6. The applicant’s original submission and its supporting documentation, the CIC officer’s report, the CBSA’s recommendation, and any additional submissions or documents received from the applicant in response to that recommendation are all forwarded to the Minister. 7. The Minister renders a decision on the application. The decision is entirely within the Minister’s discretion. 8. If the decision is negative, CIC issues a refusal letter to the applicant.\n\nThe appellant has not shown that his application was not dealt with in accordance with this process outlined in the Guidelines. In May 2002, he was advised of the ministerial relief process by way of a letter akin to the National Interest Information Sheet. He responded to this letter by making submissions through his counsel, and CIC then prepared its report. The CBSA prepared a briefing note for the Minister, which contained its recommendation, and this note was disclosed to the appellant. The appellant declined to make additional submissions or provide additional documents in response to the recommendation. The appellant’s submission and its supporting documentation, the CIC officer’s report, and the CBSA’s recommendation were all forwarded to the Minister, and the Minister rendered a decision on the application. As counsel for the appellant rightly acknowledges, “[i]n the Appellant’s case, the Ministerial relief process followed the process set out in the IP 10 guidelines” (A.F., at para. 53). His legitimate expectation in this regard was therefore fulfilled.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-57", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "para 100", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant raises a further argument to the effect that he had a legitimate expectation that the Minister would consider certain factors in determining his relief application. The source of this alleged expectation is twofold. First, the appellant argues that the Guidelines created an expectation that the pertinent factors set out in Appendix 1 to these reasons would be considered. Second, he alleges that he had a legitimate expectation that H&C factors would be considered in determining his application as a result of a letter CIC had sent him on May 22, 2002. That letter read, in part, as follows: The Minister will consider whether granting you permanent residence to Canada would be contrary to the National Interest to Canada. This will require an assessment of the detriment that you pose to the National Interest of Canada, as well as any humanitarian and compassionate circumstances pertinent to your situation. [Emphasis added; A.R., vol. III, at p. 287.]", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-13137-58", - "doc_type": "caselaw", - "act_code": "2013 SCC 36", - "act_short": "Agraira", - "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", - "marginal_note": "paras 101–103", - "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", - "part": "Supreme Court of Canada", - "division": "", - "text": "Even were I to assume that the Guidelines and the letter unambiguously promised the appellant that certain factors would be considered in assessing his application for relief and that, at law, someone in his position might in fact have a legitimate expectation that certain factors would be considered in making a discretionary decision, his argument would nevertheless fail. As I mentioned above, the Minister’s implied interpretation of the term “national interest” encompasses all the factors referred to in the Guidelines. Also as I mentioned above, and as the appellant acknowledges, these factors include H&C factors (A.F., at para. 122). In a manner consistent with this interpretation of the term “national interest”, the Minister “reviewed and considered the material and evidence submitted in its entirety”. Therefore, if the appellant had a legitimate expectation that the Minister would consider certain factors, including H&C factors, in determining his application for relief, this expectation was fulfilled.\n\nIn my opinion, there was no failure to meet the appellant’s legitimate expectations or to discharge the duty of procedural fairness owed to him. The Minister’s decision cannot therefore be set aside on this basis. V. Conclusion\n\nAs a result, I would dismiss the appeal and allow the Minister’s decision under s. 34(2) of the IRPA to stand. In the circumstances, and taking particular account of the Minister’s inordinate delay in rendering a decision that was of the utmost importance to Mr. Agraira, I would make no order as to costs.", - "current_to": "2013-06-20", - "last_amended": "", - "history": "[2013] 2 SCR 559", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" - }, - { - "id": "scc-6901-1", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 1–2", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Binnie J. — At issue in this appeal is the extent to which, if at all, the exercise by judges of statutory powers of judicial review (such as those established by ss. 18 and 18.1 of the Federal Courts Act , R.S.C. 1985, c. F-7 ) is governed by the common law principles lately analysed by our Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.\n\nThe respondent, Khosa, applied unsuccessfully to the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board to remain in Canada, notwithstanding his conviction for criminal negligence causing death in an automobile street race. A valid removal order had been issued to return him to India. The majority of the IAD did not accept that there were “sufficient humanitarian and compassionate considerations [to] warrant special relief [against the removal order] in light of all the circumstances of the case” within the meaning of s. 67(1) (c) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”). Applying the “patent unreasonableness” standard of review, the judicial review judge at first instance dismissed Khosa’s challenge to the IAD decision. However, applying a “reasonableness” simpliciter standard of review, a majority of the Federal Court of Appeal set aside the IAD decision. Dunsmuir (decided subsequently to both lower court decisions) did away with the distinction between “patent unreasonableness” and “reasonableness simpliciter” and substituted a more context-driven view of “reasonableness” that nevertheless “does not pave the way for a more intrusive review by courts” (para. 48).", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-2", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 3", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant Minister sought leave to appeal to this Court to argue that in any event s. 18.1 of the Federal Courts Act establishes a legislated standard of review that displaces the common law altogether. On this view, Dunsmuir is largely irrelevant to the current appeal. However, it is apparent that while the courts below differed on the choice of the appropriate common law standard of review, neither the judge at first instance nor any of the judges of the appellate court considered the common law of judicial review to be displaced by s. 18.1 of the Federal Courts Act . The trial court took the view that s. 18.1 of the Federal Courts Act deals essentially with grounds of review of administrative action, not standards of review, and the Federal Court of Appeal proceeded in the same way. I think this approach is correct although, as will be discussed, s. 18.1(4)(d) does provide legislative guidance as to “the degree of deference” owed to the IAD’s findings of fact.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-3", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 4", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Dunsmuir teaches that judicial review should be less concerned with the formulation of different standards of review and more focussed on substance, particularly on the nature of the issue that was before the administrative tribunal under review. Here, the decision of the IAD required the application of broad policy considerations to the facts as found to be relevant, and weighed for importance, by the IAD itself. The question whether Khosa had shown “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order, which all parties acknowledged to be valid, was a decision which Parliament confided to the IAD, not to the courts. I conclude that on general principles of administrative law, including our Court’s recent decision in Dunsmuir, the applications judge was right to give a higher degree of deference to the IAD decision than seemed appropriate to the Federal Court of Appeal majority. In my view, the majority decision of the IAD was within a range of reasonable outcomes and the majority of the Federal Court of Appeal erred in intervening in this case to quash it. The appeal is therefore allowed and the decision of the Immigration Appeal Division is restored. I. Facts", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-4", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 5", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent, Sukhvir Singh Khosa, is a citizen of India. He immigrated to Canada with his family in 1996, at the age of 14. He has landed immigrant status. During the evening of November 13, 2000, he and an individual named Bahadur Singh Bhalru, drove their respective cars at over 100 kilometres per hour along Marine Drive through a residential and commercial area of Vancouver. At their criminal trial, the court concluded that they were “street racing”. Khosa was prepared to plead guilty to a charge of dangerous driving, but not to the more serious charge of criminal negligence causing death, of which he was eventually convicted. The respondent continued to deny street racing, although he admitted that he was speeding and that his driving behaviour was exceptionally dangerous. On appeal from sentencing, the British Columbia Court of Appeal commented: . . . it is significant that the respondents were racing. They were driving at excessive speeds in competition with each other on a major street lined with both commercial and residential properties. They did this at a time when other vehicles and pedestrians reasonably could be expected to be on the roads. . . . The “spontaneous” nature of the race . . . mitigates the severity with which it should be assessed. The race was not planned, did not involve vehicles specifically modified for the purpose of racing, and was of relatively short duration. As unacceptable as the conduct of the respondents was, it represented a reckless error in judgment more than a deliberate endangerment of the public. (2003 BCCA 645, 190 B.C.A.C. 42, at paras.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-5", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 5–7", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "33 and 36) As to the “moral culpability” of the respondent and his co-accused, the Court of Appeal continued: The Crown concedes that there are several factors which mitigate the moral culpability of the respondents in this case. Mr. Khosa and Mr. Bhalru are both young, have no prior criminal record or driving offences, have expressed remorse for the consequences of their conduct, and have favourable prospects for rehabilitation. . . . [para. 38]\n\nThe respondent received a conditional sentence of two years less a day. The conditions included house arrest, a driving ban, and community service, all of which were complied with prior to the IAD hearing. II. Judicial History A. Immigration Appeal Division, [2004] I.A.D.D. No. 1268 (QL) (1) The Majority\n\nThe majority of the IAD recognized (at para. 12) that its discretionary jurisdiction to grant “special relief” on humanitarian and compassionate grounds under s. 67(1) (c) of the IRPA should be exercised in light of the factors adopted in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at paras. 40, 41 and 90, namely: (1) the seriousness of the offence leading to the removal order; (2) the possibility of rehabilitation; (3) the length of time spent, and the degree to which the individual facing removal is established, in Canada; (4) the family and community support available to the individual facing removal; (5) the family in Canada and the dislocation to the family that removal would cause; and (6) the degree of hardship that would be caused to the individual facing removal to his country of nationality.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-6", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 8–9", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority considered that the last four Ribic factors were not particularly compelling for or against relief. As to the first two factors, the offence in question was “extremely serious” (para. 14) and the majority expressed particular concern over Khosa’s refusal to accept without reservation the finding that he had been street racing. The IAD majority considered that this refusal “reflects a lack of insight into his conduct” (para. 15). As to Khosa’s prospects for rehabilitation, the majority decided that there was insufficient evidence upon which to make a finding one way or the other (paras. 15 and 23). However, even if Khosa had good prospects for rehabilitation, “balancing all the relevant factors, . . . the scale does not tip in [Khosa’s] favour” (para. 23). Accordingly, “special relief” was denied. (2) The Dissent\n\nThe dissenting member of the IAD would also have denied the appeal, but she would have stayed the execution of the deportation order pending a further review in three years. She acknowledged the seriousness of the offence for which Khosa was convicted but found that it was mitigated by matters not considered important by the majority. Evidence of remorse and rehabilitation favoured relief. Having regard to the criminal proceedings, she noted that no penitentiary term was considered appropriate. The crime of which Khosa was convicted is not one of intent. There was no evidence of criminal propensity. The race was spontaneous and short. All sentencing conditions had been complied with. In the circumstances, she concluded that relief ought to be granted on humanitarian and compassionate grounds. B. Federal Court, 2005 FC 1218, 266 F.T.R. 138", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-7", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 10–12", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Lutfy C.J. dismissed Khosa’s application for judicial review. He found that considerable deference was required, given the broad nature of the discretion vested in the IAD and its expertise in applying Ribic factors in appeals under s. 67(1) (c) of the IRPA . The appropriate standard of review is patent unreasonableness. Whether or not the IAD majority erred in its appreciation of the evidence in light of the Ribic factors is “substantially, if not completely, factual” (para. 29).\n\nLutfy C.J. said that the crux of Khosa’s argument was that the majority of the IAD erred by placing inordinate emphasis on his denial that his admittedly dangerous driving took place in the context of a street race, but the judge declined to reweigh the evidence, saying (at para. 36): In assessing Mr. Khosa’s expression of remorse, they [the majority] chose to place greater weight on his denial that he participated in a “race” than others might have. The IAD conclusion on the issue of remorse appears to differ from that of the criminal courts. The IAD, however, unlike the criminal courts, had the opportunity to assess Mr. Khosa’s testimony.\n\nIn the result, Lutfy C.J. held that there was no basis for concluding that “the majority opinion is patently unreasonable or, in the words of paragraph 18.1(4) (d) of the Federal Courts Act , one which was based on an erroneous finding of fact ‘made in a perverse or capricious manner or without regard for the material’” (para. 39). C. Federal Court of Appeal, 2007 FCA 24, [2007] 4 F.C.R. 332 (1) The Majority", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-8", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 13–14", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Décary J.A. (Malone J.A. concurring) disagreed with Lutfy C.J. on the appropriate standard of review. In his view, the applicable standard was “reasonableness”. Accordingly, “[s]ince the applications Judge applied the wrong standard of review, it is my duty, on appeal, to review the Board’s decision on the correct standard of review, that is, on the standard of reasonableness” (para. 14).\n\nWith respect to the second Ribic factor, Décary J.A. said that the “possibility of rehabilitation” is a criminal law concept with which the IAD does not have particular expertise. It should be wary of questioning findings of the criminal courts on matters falling squarely within their expertise. The majority “merely acknowledges the findings of the British Columbia courts in that regard, which are favourable to [Khosa], and does not explain why it comes to the contrary conclusion . . . . The whole of the evidence with respect to the conduct of [Khosa] after his sentencing undisputedly strengthens the findings of the criminal courts. Yet, the Board ignores that evidence and those findings” (para. 17). As to the “street racing” issue, Décary J.A. said: It clearly appears from the transcripts of the hearing that the presiding member — who wrote the majority decision — and counsel for the Crown, had some kind of fixation with the fact that the offence was related to street racing, to such a point that the hearing, time and time again, was transformed into a quasi-criminal trial, if not into a new criminal trial. [para. 18] For these reasons, Décary J.A. concluded that the majority had acted unreasonably. (2) The Dissent", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-9", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 15", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Desjardins J.A. concluded that the applications judge was right to apply the “patent unreasonableness” standard. She emphasized that the IAD has expertise in applying the Ribic factors in decisions under s. 67(1)(c) of the IRPA and that this exercise is “highly fact-based and contextual” (para. 36). Desjardins J.A. also emphasized the broad discretion conferred upon the IAD by s. 67(1) (c) of the IRPA . In her view, Lutfy C.J. had made no reviewable error. She would have dismissed the appeal. III. Relevant Statutory Provisions", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-10", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 16", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Immigration and Refugee Protection Act , S.C. 2001, c. 27 3. (1) The objectives of this Act with respect to immigration are . . . (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, . . . (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. Federal Courts Act , R.S.C. 1985, c. F-7 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. (2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-11", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 16", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "(3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. (5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and (b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate. IV. Analysis", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-12", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 17–18", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "This appeal provides a good illustration of why the adjustment made by Dunsmuir was timely. By switching the standard of review from patent unreasonableness to reasonableness simpliciter, the Federal Court of Appeal majority felt empowered to retry the case in important respects, even though the issues to be resolved had to do with immigration policy, not law. Clearly, the majority felt that the IAD disposition was unjust to Khosa. However, Parliament saw fit to confide that particular decision to the IAD, not to the judges.\n\nIn cases where the legislature has enacted judicial review legislation, an analysis of that legislation is the first order of business. Our Court had earlier affirmed that, within constitutional limits, Parliament may by legislation specify a particular standard of review: see R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779. Nevertheless, the intended scope of judicial review legislation is to be interpreted in accordance with the usual rule that the terms of a statute are to be read purposefully in light of its text, context and objectives.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-13", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 19–20", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Generally speaking, most if not all judicial review statutes are drafted against the background of the common law of judicial review. Even the more comprehensive among them, such as the British Columbia Administrative Tribunals Act, S.B.C. 2004, c. 45, can only sensibly be interpreted in the common law context because, for example, it provides in s. 58(2)(a) that “a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable”. The expression “patently unreasonable” did not spring unassisted from the mind of the legislator. It was obviously intended to be understood in the context of the common law jurisprudence, although a number of indicia of patent unreasonableness are given in s. 58(3). Despite Dunsmuir, “patent unreasonableness” will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law. That said, of course, the legislature in s. 58 was and is directing the B.C. courts to afford administrators a high degree of deference on issues of fact, and effect must be given to this clearly expressed legislative intention. A. A Difference of Perspective\n\nAs Rand J. commented in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140, “there is always a perspective within which a statute is intended to operate”. This applies to s. 18.1 of the Federal Courts Act as much as it does to any other enactment.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-14", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 21–23", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "My colleague Justice Rothstein adopts the perspective that in the absence of a privative clause or statutory direction to the contrary, express or implied, judicial review under s. 18.1 is to proceed “as it does in the regular appellate context” (para. 117). Rothstein J. writes: On my reading, where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context. [Emphasis added.] I do not agree that such an implication is either necessary or desirable. My colleague states that “where a legal question can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause” (para. 90), citing Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8 and 13. Housen, of course, was a regular appeal in a civil negligence case.\n\nOn this view, the reviewing court applies a standard of review of correctness unless otherwise directed to proceed (expressly or by necessary implication) by the legislature.\n\nRothstein J. writes, at para. 87, that the Court “depart[ed] from the conceptual origin of standard of review” in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557. Pezim was a unanimous decision of the Court which deferred to the expertise of a specialized tribunal in the interpretation of provisions of the Securities Act, S.B.C. 1985, c. 83, despite the presence of a right of appeal and the absence of a privative clause.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-15", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 24", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The conceptual underpinning of the law of judicial review was “further blurred”, my colleague writes, by Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, which treated the privative clause “simply as one of several factors in the calibration of deference (standard of review)” (para. 92). In my colleague’s view, “[i]t is not for the court to impute tribunal expertise on legal questions, absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed” (para. 91).", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-16", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 25", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "I do not share Rothstein J.’s view that absent statutory direction, explicit or by necessary implication, no deference is owed to administrative decision-makers in matters that relate to their special role, function and expertise. Dunsmuir recognized that with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to an administrative decision-maker rather than to the courts. This deference extended not only to facts and policy but to a tribunal’s interpretation of its constitutive statute and related enactments because “there might be multiple valid interpretations of a statutory provision or answers to a legal dispute and that courts ought not to interfere where the tribunal’s decision is rationally supported” (Dunsmuir, at para. 41). A policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (Dunsmuir, at para. 49, quoting Professor David J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93). Moreover, “[d]eference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context” (Dunsmuir, at para. 54).", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-17", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 26–28", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Dunsmuir stands against the idea that in the absence of express statutory language or necessary implication, a reviewing court is “to apply a correctness standard as it does in the regular appellate context” (Rothstein J., at para. 117). Pezim has been cited and applied in numerous cases over the last 15 years. Its teaching is reflected in Dunsmuir. With respect, I would reject my colleague’s effort to roll back the Dunsmuir clock to an era where some courts asserted a level of skill and knowledge in administrative matters which further experience showed they did not possess. B. Section 18.1 of the Federal Courts Act\n\nGiven the differing perspectives that Rothstein J. and I bring to judicial review, it is not surprising that we differ on the role and function of s. 18.1 of the Federal Courts Act .\n\nIn my view, the interpretation of s. 18.1 of the Federal Courts Act must be sufficiently elastic to apply to the decisions of hundreds of different “types” of administrators, from Cabinet members to entry-level fonctionnaires, who operate in different decision-making environments under different statutes with distinct grants of decision-making powers. Some of these statutory grants have privative clauses; others do not. Some provide for a statutory right of appeal to the courts; others do not. It cannot have been Parliament’s intent to create by s. 18.1 of the Federal Courts Act a single, rigid Procrustean standard of decontextualized review for all “federal board[s], commission[s] or other tribunal[s]”, an expression which is defined (in s. 2) to include generally all federal administrative decision-makers. A flexible and contextual approach to s. 18.1 obviates the need for Parliament to set customized standards of review for each and every federal decision-maker.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-18", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 29–30", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Minister’s reliance on Owen is misplaced. At issue in that case was the standard applicable to the highly specific task of judicial review of decisions of Review Boards set up under s. 672.38 of the Criminal Code , R.S.C. 1985, c. C-46 , to deal with individuals found not criminally responsible (“NCR”) on account of a mental disorder. The mandate of these Boards is to determine the “least onerous and least restrictive” limits on the liberty of NCR individuals who remain a “significant threat to the safety of the public” (s. 672.54). On a statutory appeal (s. 672.78), the Court of Appeal is authorized to set aside a Review Board order on a number of grounds, namely (a) the decision is unreasonable or cannot be supported by the evidence; or, (b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice.\n\nThe Owen court held that where Parliament has shown a clear intent then, absent any constitutional challenge, that is the standard of review that is to be applied (para. 32). This approach was affirmed in Dunsmuir where the majority said that “determining the applicable standard of review is accomplished by establishing legislative intent” (para. 30).", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-19", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 31", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, in Owen itself, even in the context of a precisely targeted proceeding related to a named adjudicative board, the standard of review was evaluated by reference to the common law of judicial review, as was made clear in the following paragraph: The first branch of the test corresponds with what the courts call the standard of review of reasonableness simpliciter, i.e., the Court of Appeal should ask itself whether the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination . . . . [para. 33] And in the next paragraph: Resort must therefore be taken to the jurisprudence governing judicial review on a standard of reasonableness simpliciter . . . . [para. 34] See also Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-20", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 32–33", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, the Court dealt with the second branch of s. 672.78(1)(b) (“error of law”) on ordinary administrative law principles (clearly applying a correctness standard, at para. 25). As to the saving proviso (i.e., the decision may be set aside for an error of law unless “no substantial wrong or miscarriage of justice has occurred”), the Pinet court held that the party seeking to uphold the Review Board decision despite the error of law must “satisfy the appellate court that a Review Board, acting reasonably, and properly informed of the law, would necessarily have reached the same conclusion absent the legal error” (para. 28). None of this is explicit in the statute, but the common law was necessarily called in aid to fill in interstices in the legislation. See also Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326.\n\nResort to the general law of judicial review is all the more essential in the case of a provision like s. 18.1 of the Federal Courts Act which, unlike s. 672 of the Criminal Code , is not limited to particular issues before a particular adjudicative tribunal but covers the full galaxy of federal decision-makers. Section 18.1 must retain the flexibility to deal with an immense variety of circumstances. C. Matter of Statutory Interpretation", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-21", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 34", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The genesis of the Federal Courts Act lies in Parliament’s decision in 1971 to remove from the superior courts of the provinces the jurisdiction over prerogative writs, declarations, and injunctions against federal boards, commissions and other tribunals and to place that jurisdiction (slightly modified) in a new federal court. As Donald S. Maxwell, Q.C., the then Deputy Minister of Justice, explained to the House of Commons Standing Committee on Justice and Legal Affairs: Clause 18 is based on the philosophy that we want to remove the jurisdiction and prerogative matters from the Superior Courts of the provinces and place them in our own federal Superior Court. . . . . . . Having got them there, we think they are not entirely satisfactory. We feel that there should be improvements made on these remedies of certiorari and prohibition. This is what we are endeavouring to do in Clause 28. (See Minutes of Proceedings and Evidence of the Committee, No. 26, 2nd Sess., 28th Parl., May 7, 1970, at pp. 25‑26.) This transfer of jurisdiction was recognized and accepted in Pringle v. Fraser, [1972] S.C.R. 821; Howarth v. National Parole Board, [1976] 1 S.C.R. 453, at pp. 470-72, and Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at p. 637, with the proviso that such transfer does not deprive the provincial superior courts of their jurisdiction to determine the constitutional validity and applicability of legislation: Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307. Subsequent amendments to the Act in 1990 (when s. 18.1 was added) clarified and simplified its expression and implementation, but did not have the effect of excluding the common law. R. Sullivan, Sullivan on the Construction of Statutes (5th ed.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-22", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 34–36", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "2008), notes that “courts readily assume that reform legislation is meant to be assimilated into the existing body of common law” (p. 432; see also pp. 261-62).\n\nMy colleague Rothstein J. writes that “to say (or imply) that a Dunsmuir standard of review analysis applies even where the legislature has articulated the applicable standard of review directly contradicts Owen” (para. 100). This assumes the point in issue, namely whether as a matter of interpretation, Parliament has or has not articulated the applicable standard of review in s. 18.1.\n\nIn my view, the language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. Whether or not the court should exercise its discretion in favour of the application will depend on the court’s appreciation of the respective roles of the courts and the administration as well as the “circumstances of each case”: see Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 575. Further, “[i]n one sense, whenever the court exercises its discretion to deny relief, balance of convenience considerations are involved” (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 3-99). Of course, the discretion must be exercised judicially, but the general principles of judicial review dealt with in Dunsmuir provide elements of the appropriate judicial basis for its exercise.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-23", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 37", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "On this point, as well, my colleague Rothstein J. expresses disagreement. He cites a number of decisions dealing with different applications of the Court’s discretion. He draws from these cases the negative inference that other applications of the discretion are excluded from s. 18.1(4). In my view, with respect, such a negative inference is not warranted. Decisions that address unrelated problems are no substitute for a proper statutory analysis of s. 18.1(4) itself which in the English text provides that 18.1 . . . (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal . . .", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-24", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 38", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "A different concern emerges from the equally authoritative French text of s. 18.1(4) which reads: 18.1 . . . (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : . . . Generally speaking, the use of the present indicative tense (sont prises) is not to be read as conferring a discretion: see s. 11 of the French version of the Interpretation Act , R.S.C. 1985, c. I-21 , and P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), p. 72, fn. 123 (in the French edition, the point is canvassed by Professor Côté, at p. 91, fn. 123). It has been truly remarked in the context of bilingual legislation that “Canadians read only one version of the law at their peril”: M. Bastarache et al., The Law of Bilingual Interpretation (2008), at p. 32. However, the text of s. 18.1(4) must be interpreted not only in accordance with the rules governing bilingual statutes but within the larger framework of the modern rule that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-25", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 39", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The English version of s. 18.1(4) is permissive; the court is clearly given discretion. In the French version, the words “sont prises” translate literally as “are taken” which do not, on the face of it, confer a discretion. A shared meaning on this point is difficult to discern. Nevertheless, the linguistic difference must be reconciled as judges cannot be seen to be applying s. 18.1(4) differently across the country depending on which language version of s. 18.1(4) they happen to be reading. In R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at para. 26, the Court cited with approval the following approach: Unless otherwise provided, differences between two official versions of the same enactment are reconciled by educing the meaning common to both. Should this prove to be impossible, or if the common meaning seems incompatible with the intention of the legislature as indicated by the ordinary rules of interpretation, the meaning arrived at by the ordinary rules should be retained. (Quoting Côté, at p. 324.) (See also Bastarache et al., at p. 32.) Linguistic analysis of the text is the servant, not the master, in the task of ascertaining Parliamentary intention: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1071-72 (Lamer J. dissenting in part, but not on this point). A blinkered focus on the textual variations might lead to an interpretation at odds with the modern rule because, standing alone, linguistic considerations ought not to elevate an argument about text above the relevant context, purpose and objectives of the legislative scheme: see Sullivan, at p. 116.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-26", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 40", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Here the English version cannot be read so as to compel the court to grant relief: the word “may” is unquestionably permissive. In Bastarache et al., it is said that “the clearer version provides the common meaning” (p. 67), but it cannot be said that the French text here is ambiguous. Accordingly, the linguistic issue must be placed in the framework of the modern rules of statutory interpretation that give effect not only to the text but to context and purpose. There is nothing in the context or purpose of the enactment to suggest a Parliamentary intent to eliminate the long-standing existence of a discretion in judicial review remedies. As mentioned earlier, the principal legislative objective was simply to capture the judicial review of federal decision-makers for the Federal Court. Under the general public law of Canada (then as now), the granting of declarations and the original prerogative and extraordinary remedies, and subsequent statutory variations thereof, have generally been considered to be discretionary, as discussed by Beetz J. in Harelkin. The Federal Court’s discretion in matters of judicial review has repeatedly been affirmed by this Court: see Solosky v. The Queen, [1980] 1 S.C.R. 821, at pp. 830-31; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at pp. 92-93, and Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 77-80. The Federal Courts themselves have repeatedly asserted, notwithstanding the problem posed by the French text of s. 18.1(4), the existence of a discretion in the exercise of their judicial review jurisdiction (and quite properly so in my opinion) both in decisions rendered in French (see, e.g., Canada v.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-27", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 40–42", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Grenier, 2005 CAF 348, [2006] 2 F.C.R. 287, per Létourneau J.A., at para. 40, and Devinat v. Canada (Commission de l’immigration et du status de réfugié), [2000] 2 F.C. 212 (C.A.), per The Court, at para. 73) and in English (see, e.g., Thanabalasingham v. Canada (Minister of Citizenship and Immigration), 2006 FCA 14, 263 D.L.R. (4th) 51, per Evans J.A., at para. 9; Charette v. Canada (Commissioner of Competition), 2003 FCA 426, 29 C.P.R. (4th) 1, per Sexton J.A., at para. 61, and Pal v. Canada (Minister of Employment and Immigration) (1993), 24 Admin. L.R. (2d) 68, per Reed J., at para. 9). I conclude that notwithstanding the bilingual issue in the text, s. 18.1(4) should be interpreted so as to preserve to the Federal Court a discretion to grant or withhold relief, a discretion which, of course, must be exercised judicially and in accordance with proper principles. In my view, those principles include those set out in Dunsmuir.\n\nWith these general observations I turn to the particular paragraphs of s. 18.1(4) of the Federal Courts Act that, in my view, enable but do not require judicial intervention.\n\nSection 18.1(4)(a) provides for relief where a federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; No standard of review is specified. Dunsmuir says that jurisdictional issues command a correctness standard (majority, at para. 59). The Federal Courts Act does not indicate in what circumstances, despite jurisdictional error having been demonstrated, relief may properly be withheld. For that and other issues, resort will have to be had to the common law. See Harelkin, at pp. 575-76.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-28", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 43", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Judicial intervention is also authorized where a federal board, commission or other tribunal (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; No standard of review is specified. On the other hand, Dunsmuir says that procedural issues (subject to competent legislative override) are to be determined by a court on the basis of a correctness standard of review. Relief in such cases is governed by common law principles, including the withholding of relief when the procedural error is purely technical and occasions no substantial wrong or miscarriage of justice (Pal, at para. 9). This is confirmed by s. 18.1(5). It may have been thought that the Federal Court, being a statutory court, required a specific grant of power to “make an order validating the decision” (s. 18.1(5)) where appropriate.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-29", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 44", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Judicial intervention is authorized where a federal board, commission or other tribunal (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; Errors of law are generally governed by a correctness standard. Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 37, for example, held that the general questions of international law and criminal law at issue in that case had to be decided on a standard of correctness. Dunsmuir (at para. 54), says that if the interpretation of the home statute or a closely related statute by an expert decision-maker is reasonable, there is no error of law justifying intervention. Accordingly, para. (c) provides a ground of intervention, but the common law will stay the hand of the judge(s) in certain cases if the interpretation is by an expert adjudicator interpreting his or her home statute or a closely related statute. This nuance does not appear on the face of para. (c), but it is the common law principle on which the discretion provided in s. 18.1(4) is to be exercised. Once again, the open textured language of the Federal Courts Act is supplemented by the common law.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-30", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 45–46", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Judicial intervention is further authorized where a federal board, commission or other tribunal (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; The legislator would have been aware of the great importance attached by some judicial decisions to so-called “jurisdictional fact finding”; see, e.g., Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756, and Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227. Parliament clearly wished to put an end to the tendency of some courts to seize on a “preliminary fact” on which the administrative agency’s decision was said to be based to quash a decision. In Bell, the “jurisdictional fact” was whether the residential accommodation in respect of which a prospective tenant claimed rental discrimination was a “self-contained dwelling unit”. The Court disagreed with the Human Rights Commission, which had “based” its decision on this threshold fact. Viewed in this light, s. 18.1(4)(d) was intended to confirm by legislation what Dickson J. had said in New Brunswick Liquor Corp., namely that judges should “not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233).\n\nMore generally, it is clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference. This is quite consistent with Dunsmuir. It provides legislative precision to the reasonableness standard of review of factual issues in cases falling under the Federal Courts Act .", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-31", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 47–49", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Paragraph (e) contemplates a question of mixed fact and law namely that the federal board, commission or other tribunal (e) acted, or failed to act, by reason of fraud or perjured evidence; The common law would not allow a statutory decision-maker to rely on fraudulent or perjured testimony. The court would be expected to exercise its discretion in favour of the applicant under para. (e) as well.\n\nSection 18.1(4)(f) permits judicial intervention if the federal board, commission or other tribunal (f) acted in any other way that was contrary to law. A reference to “contrary to law” necessarily includes “law” outside the Federal Courts Act including general principles of administrative law. Paragraph (f) shows, if further demonstration were necessary, that s. 18.1(4) is not intended to operate as a self-contained code, but is intended by Parliament to be interpreted and applied against the backdrop of the common law, including those elements most recently expounded in Dunsmuir.\n\nIn Federal Courts Practice 2009 (2008), B. J. Saunders et al. state, at pp. 112-13: Grounds for Review Section 18.1(4) sets out the grounds which an applicant must establish to succeed on an application for judicial review. The grounds are broadly stated and reflect, generally, the grounds upon which judicial review could be obtained under the prerogative and extraordinary remedies listed in section 18(1). Section 18.1(4)(f) ensures that the Court will not be hindered in developing new grounds for review. [Emphasis added.]", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-32", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 50–51", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "I readily accept, of course, that the legislature can by clear and explicit language oust the common law in this as in other matters. Many provinces and territories have enacted judicial review legislation which not only provide guidance to the courts but have the added benefit of making the law more understandable and accessible to interested members of the public. The diversity of such laws makes generalization difficult. In some jurisdictions (as in British Columbia), the legislature has moved closer to a form of codification than has Parliament in the Federal Courts Act . Most jurisdictions in Canada seem to favour a legislative approach that explicitly identifies the grounds for review but not the standard of review.1 In other provinces, some laws specify “patent unreasonableness”.2 In few of these statutes, however, is the content of the specified standard of review defined, leading to the inference that the legislatures left the content to be supplied by the common law.\n\nAs stated at the outset, a legislature has the power to specify a standard of review, as held in Owen, if it manifests a clear intention to do so. However, where the legislative language permits, the courts (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based on the Dunsmuir teaching of restraint in judicial intervention in administrative matters (as well as other factors such as an applicant’s delay, failure to exhaust adequate alternate remedies, mootness, prematurity, bad faith and so forth). D. Standard of Review Analysis", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-33", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 52–53", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Dunsmuir states that “[c]ourts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures” (para. 27).\n\nThe process of judicial review involves two steps. First, Dunsmuir says that “[a]n exhaustive review is not required in every case to determine the proper standard of review” (para. 57). As between correctness and reasonableness, the “existing jurisprudence may be helpful” (para. 57). And so it is in this case. Dunsmuir renders moot the dispute in the lower courts between patent unreasonableness and reasonableness. No authority was cited to us that suggests a “correctness” standard of review is appropriate for IAD decisions under s. 67(1) (c) of the IRPA . Accordingly, “existing jurisprudence” points to adoption of a “reasonableness” standard.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-34", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 54–55", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "This conclusion is reinforced by the second step of the analysis when jurisprudential categories are not conclusive. Factors then to be considered include: (1) the presence or absence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation; (3) the nature of the question at issue before the IAD; and (4) the expertise of the IAD in dealing with immigration policy (Dunsmuir, at para. 64). Those factors have to be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case. A contextualized approach is required. Factors should not be taken as items on a check list of criteria that need to be individually analysed, categorized and balanced in each case to determine whether deference is appropriate or not. What is required is an overall evaluation. Nevertheless, having regard to the argument made before us, I propose to comment on the different factors identified in Dunsmuir, all of which in my view point to a reasonableness standard.\n\nAs to the presence of a privative clause, s. 162(1) of the IRPA provides that “[e]ach Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”. A privative clause is an important indicator of legislative intent. While privative clauses deter judicial intervention, a statutory right of appeal may be at ease with it, depending on its terms. Here, there is no statutory right of appeal.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-35", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 56–57", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "As to the purpose of the IAD as determined by its enabling legislation, the IAD determines a wide range of appeals under the IRPA , including appeals from permanent residents or protected persons of their deportation orders, appeals from persons seeking to sponsor members of the family class, and appeals by permanent residents against decisions made outside of Canada on their residency obligations, as well as appeals by the Minister against decisions of the Immigration Division taken at admissibility hearings (s. 63). A decision of the IAD is reviewable only if the Federal Court grants leave to commence judicial review (s. 72).\n\nIn recognition that hardship may come from removal, Parliament has provided in s. 67(1)(c) a power to grant exceptional relief. The nature of the question posed by s. 67(1)(c) requires the IAD to be “satisfied that, at the time that the appeal is disposed of . . . sufficient humanitarian and compassionate considerations warrant special relief”. Not only is it left to the IAD to determine what constitute “humanitarian and compassionate considerations”, but the “sufficiency” of such considerations in a particular case as well. Section 67(1)(c) calls for a fact‑dependent and policy‑driven assessment by the IAD itself. As noted in Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, at p. 380, a removal order establishes that, in the absence of some special privilege existing, [an individual subject to a lawful removal order] has no right whatever to remain in Canada. [An individual appealing a lawful removal order] does not, therefore, attempt to assert a right, but, rather, attempts to obtain a discretionary privilege. [Emphasis added.]", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-36", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 58", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent raised no issue of practice or procedure. He accepted that the removal order had been validly made against him pursuant to s. 36(1) of the IRPA . His attack was simply a frontal challenge to the IAD’s refusal to grant him a “discretionary privilege”. The IAD decision to withhold relief was based on an assessment of the facts of the file. The IAD had the advantage of conducting the hearings and assessing the evidence presented, including the evidence of the respondent himself. IAD members have considerable expertise in determining appeals under the IRPA . Those factors, considered altogether, clearly point to the application of a reasonableness standard of review. There are no considerations that might lead to a different result. Nor is there anything in s. 18.1(4) that would conflict with the adoption of a “reasonableness” standard of review in s. 67(1)(c) cases. I conclude, accordingly, that “reasonableness” is the appropriate standard of review. E. Applying the “Reasonableness” Standard", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-37", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 59–61", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.\n\nIn my view, having in mind the considerable deference owed to the IAD and the broad scope of discretion conferred by the IRPA , there was no basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case.\n\nMy colleague Fish J. agrees that the standard of review is reasonableness, but he would allow the appeal. He writes: While Mr. Khosa’s denial of street racing may well evidence some “lack of insight” into his own conduct, it cannot reasonably be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence. [para. 149] I do not believe that it is the function of the reviewing court to reweigh the evidence.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-38", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 62", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is apparent that Fish J. takes a different view than I do of the range of outcomes reasonably open to the IAD in the circumstances of this case. My view is predicated on what I have already said about the role and function of the IAD as well as the fact that Khosa does not contest the validity of the removal order made against him. He seeks exceptional and discretionary relief that is available only if the IAD itself is satisfied that “sufficient humanitarian and compassionate considerations warrant special relief”. The IAD majority was not so satisfied. Whether we agree with a particular IAD decision or not is beside the point. The decision was entrusted by Parliament to the IAD, not to the judges.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-39", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 63", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Dunsmuir majority held: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47] Dunsmuir thus reinforces in the context of adjudicative tribunals the importance of reasons, which constitute the primary form of accountability of the decision-maker to the applicant, to the public and to a reviewing court. Although the Dunsmuir majority refers with approval to the proposition that an appropriate degree of deference “requires of the courts ‘not submission but a respectful attention to the reasons offered or which could be offered in support of a decision’” (para. 48 (emphasis added)), I do not think the reference to reasons which “could be offered” (but were not) should be taken as diluting the importance of giving proper reasons for an administrative decision, as stated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43. Baker itself was concerned with an application on “humanitarian and compassionate grounds” for relief from a removal order.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-40", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 64", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case, both the majority and dissenting reasons of the IAD disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome. At the factual level, the IAD divided in large part over differing interpretations of Khosa’s expression of remorse, as was pointed out by Lutfy C.J. According to the IAD majority: It is troublesome to the panel that [Khosa] continues to deny that his participation in a “street-race” led to the disastrous consequences. . . . At the same time, I am mindful of [Khosa’s] show of relative remorse at this hearing for his excessive speed in a public roadway and note the trial judge’s finding of this remorse . . . . This show of remorse is a positive factor going to the exercise of special relief. However, I do not see it as a compelling feature of the case in light of the limited nature of [Khosa’s] admissions at this hearing. [Emphasis added; para. 15.] According to the IAD dissent on the other hand: . . . from early on he [Khosa] has accepted responsibility for his actions. He was prepared to plead guilty to dangerous driving causing death . . . . I find that [Khosa] is contrite and remorseful. [Khosa] at hearing was regretful, his voice tremulous and filled with emotion. . . . . . . The majority of this panel have placed great significance on [Khosa’s] dispute that he was racing, when the criminal court found he was. And while they concluded this was “not fatal” to his appeal, they also determined that his continued denial that he was racing “reflects a lack of insight.” The panel concluded that this “is not to his credit.” The panel found that [Khosa] was remorseful, but concluded it was not a “compelling feature in light of the limited nature of [Khosa’s] admissions”.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-41", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 64–66", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "However I find [Khosa’s] remorse, even in light of his denial he was racing, is genuine and is evidence that [Khosa] will in future be more thoughtful and will avoid such recklessness. [paras. 50-51 and 53-54] It seems evident that this is the sort of factual dispute which should be resolved by the IAD in the application of immigration policy, and not reweighed in the courts.\n\nIn terms of transparent and intelligible reasons, the majority considered each of the Ribic factors. It rightly observed that the factors are not exhaustive and that the weight to be attributed to them will vary from case to case (para. 12). The majority reviewed the evidence and decided that, in the circumstances of this case, most of the factors did not militate strongly for or against relief. Acknowledging the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), it found that the offence of which the respondent was convicted was serious and that the prospects of rehabilitation were difficult to assess (para. 23).\n\nThe weight to be given to the respondent’s evidence of remorse and his prospects for rehabilitation depended on an assessment of his evidence in light of all the circumstances of the case. The IAD has a mandate different from that of the criminal courts. Khosa did not testify at his criminal trial, but he did before the IAD. The issue before the IAD was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other factors, they warranted special relief from a valid removal order. The IAD was required to reach its own conclusions based on its own appreciation of the evidence. It did so.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-42", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 67–69", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "As mentioned, the courts below recognized some merit in Khosa’s complaint. Lutfy C.J. recognized that the majority “chose to place greater weight on his denial that he participated in a race than others might have” (para. 36). Décary J.A. described the majority’s preoccupation with street racing as “some kind of fixation” (para. 18). My colleague Fish J. also decries the weight put on this factor by the majority (para. 141). However, as emphasized in Dunsmuir, “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions” (para. 47). In light of the deference properly owed to the IAD under s. 67(1) (c) of the IRPA , I cannot, with respect, agree with my colleague Fish J. that the decision reached by the majority in this case to deny special discretionary relief against a valid removal order fell outside the range of reasonable outcomes. V. Disposition\n\nThe appeal is allowed and the decision of the IAD is restored. The following are the reasons delivered by\n\nRothstein J. — I have had the benefit of reading the reasons of my colleague Justice Binnie allowing this appeal. While I concur with this outcome, I respectfully disagree with the majority’s approach to the application of the Dunsmuir standard of review analysis under s. 18.1 of the Federal Courts Act , R.S.C. 1985, c. F-7 (“FCA ”). I. Introduction", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-43", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 70–71", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The central issue in this case is whether the FCA expressly, or by necessary implication, provides the standards of review to be applied on judicial review, and if so, whether this displaces the common law standard of review analysis recently articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The majority is of the view that the Dunsmuir standard of review analysis is to be read into s. 18.1(4) of the FCA . In my view, courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law analysis. Where the legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge.\n\nSection 18.1(4) of the FCA states: (4) [Grounds of review] The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-44", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 72–73", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The language of s. 18.1(4)(d) makes clear that findings of fact are to be reviewed on a highly deferential standard. Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it”. By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4). Where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language. The necessary implication is that where Parliament did not provide for a deferential standard, its intent was that no deference be shown. As I will explain, the language and context of s. 18.1(4), and in particular the absence of deferential wording, demonstrates that a correctness standard is to be applied to questions of jurisdiction, natural justice, law and fraud. The language of s. 18.1(4)(d) indicates that deference is only to be applied to questions of fact.\n\nDunsmuir reaffirmed that “determining the applicable standard of review is accomplished by establishing legislative intent” (para. 30). The present majority’s insistence that Dunsmuir applies even where Parliament specifies a standard of review is inconsistent with that search for legislative intent, in my respectful view.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-45", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 74", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Standard of review developed as a means to reconcile the tension that privative clauses create between the rule of law and legislative supremacy: see U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048. “Full” or “strong” privative clauses that purport to preclude the judicial review of a question brought before a reviewing court give rise to this judicial-legislative tension, which deference and standard of review were developed to resolve: see Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, at para. 17, for a discussion of the nature of privative clauses. In my opinion, the application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual and jurisprudential origins of the standard of review analysis.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-46", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 75", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, the question of whether the Dunsmuir standard of review analysis applies to judicial review under s. 18.1 of the FCA becomes clear when one examines the conceptual basis for the common law standard of review analysis. As explained in part II, standard of review emerged as a means to reconcile the judicial-legislative tension to which privative clauses gave rise. The legislature’s desire to immunize certain administrative decisions from judicial scrutiny conflicted with the constitutional supervisory role of the courts and, as such, required a juridical response that could reconcile these competing requirements. Deference and standard of review was the result. It was the departure from this conceptual origin that blurred the role of the privative clause as the legislature’s communicative signal of relative expertise, and in doing so, the Court moved away from the search for legislative intent that governs this area. In part III, I refer to this Court’s jurisprudence on the judicial recognition of legislated standards of review. That jurisprudence is clear that courts must give effect to legislated standards of review, subject to any constitutional challenges. In part IV, I explain that having regard to the conceptual origin of standard of review and the jurisprudence on legislated standards of review, s. 18.1(4) of the FCA occupies the field of standard of review and therefore ousts the common law on that question, excepting in cases of a strong privative clause. In part V, I conclude by briefly considering the Immigration Appeal Division (“IAD”) decision in this case. Like the majority, I would allow the appeal. II. The Place of Standard of Review: Reconciling the Judicial-Legislative Tension of the Privative Clause A. The Judicial-Legislative Tension", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-47", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 76", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Absent a privative clause, courts have always retained a supervisory judicial review role. In the provinces, provincial superior courts have inherent jurisdiction and in most, if not all, cases statutory judicial review jurisdiction. In the federal context, the FCA transferred this inherent jurisdiction from the provincial superior courts to the Federal Courts. Where applicable, statutory rights of appeal also grant affected parties the right to appeal an administrative decision to court. This residual judicial review jurisdiction means that courts retained authority to ensure the rule of law even as delegated administrative decision making emerged. La Forest and Iacobucci JJ. acknowledged this in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, when La Forest J. wrote that [i]n the absence of other provisions indicating a disposition to limit judicial review, the normal supervisory role of the courts remains. The administrative tribunal, of course, is authorized to make determinations on these questions, but they are not to be insulated from the general supervisory role of the courts. [p. 584] The legislature was well aware that parties who perceived an administrative injustice would still have recourse to the courts.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-48", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 77", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The question is, however, whether the creation of expert tribunals automatically meant that there was to be some limitation on the judicial review role of the courts, in particular on questions of law. Where the legislature enacted strong privative clauses precluding review for legal error, there is no doubt that this was the legislative intent. In my opinion, the same limit on judicial review cannot be inferred merely from the establishment of a tribunal when the legislature did not seek to immunize the tribunal’s decisions from judicial review. In those cases, the creation of an administrative decision-maker did not by itself give rise to a tension with the supervisory role of the courts.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-49", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 78", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "In contrast, the majority appears to understand the judicial review of administrative decisions as automatically engaging a judicial-legislative tension, which the standard of review analysis seeks to resolve. In Dunsmuir, Bastarache and LeBel JJ., writing for the majority, described this as follows: Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures. [Emphasis added; para. 27.] As I understand this reasoning, the legislature displaced (or attempted to displace) judicial decision making in some areas by creating administrative bodies. From this viewpoint, the standard of review functions as a necessary balancing exercise between the courts’ constitutional exercise of judicial review and the legislative desire to delegate certain powers to administrative bodies.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-50", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 79", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my opinion, in the absence of a strong privative clause such as existed in Dunsmuir, there are important reasons to question whether this view is applicable. Broadly speaking, it is true of course that the creation of expert administrative decision-makers evidenced a legislative intent to displace or bypass the courts as primary adjudicators in a number of areas. As Professor W. A. Bogart notes, “[t]he core idea was that the legislature wanted to regulate some area but wished someone else, an administrative actor, to carry out the regulation for reasons of expertise, expediency, access, independence from the political process, and so forth” (“The Tools of the Administrative State and the Regulatory Mix”, in C. M. Flood and L. Sossin, eds., Administrative Law in Context (2008), 25, at p. 31). It was only with the enactment of privative clauses, however, that the legislature evidenced an intent to oust, or at the very least restrict, the court’s review role.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-51", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 80", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The most obvious case was labour relations. Labour relations boards were created during the First and Second World Wars, in part to stave off labour unrest: see R. J. Charney and T. E. F. Brady, Judicial Review in Labour Law (loose-leaf), at pp. 2-1 to 2-17. In order to protect the boards from judicial intervention, the legislature enacted strong privative clauses. Professor Audrey Macklin notes that “[f]rustrated with judicial hostility toward the objectives of labour relations legislation, the government not only established a parallel administrative regime of labour relations boards, but also enacted statutory provisions that purported to preclude entirely judicial review of the legality of administrative action”: “Standard of Review: The Pragmatic and Functional Test”, in Administrative Law in Context, 197, at p. 199. While there are different types of privative clauses, the labour relations context gave rise to strong privative clauses that typically purported to preclude review not only of factual findings, but also legal and jurisdictional decisions of the tribunal: see Pasiechnyk, at para. 17 (discussing what constitutes a “full” or “true” privative clause).", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-52", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 81", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "In attempting to preclude judicial review, privative clauses gave rise to a tension between the two core pillars of the public law system: legislative supremacy and the judicial enforcement of law: see D. Dyzenhaus, “Disobeying Parliament? Privative Clauses and the Rule of Law”, in R. W. Bauman and T. Kahana, eds., The Least Examined Branch: The Role of Legislatures in the Constitutional State (2006), 499, at p. 500. Strong privative clauses reflected the legislature’s intent to make administrative decisions final and thereby beyond the purview of judicial scrutiny. This conflicts with the rule of law principle of accountability, for which access to courts is necessary. As Professor Mary Liston notes: The risk to the accountability function of the rule of law was that these officials could behave as a law unto themselves because they would be the sole judges of the substantive validity of their own acts. The institutional result of privative clauses was a system of competing and irreconcilable supremacies between the legislative and judicial branches of government. (“Governments in Miniature: The Rule of Law in the Administrative State”, in Administrative Law in Context, 77, at p. 104) Faced with these competing “supremacies”, courts were forced to develop a juridical approach that would reconcile, or at least alleviate, this tension. In Canada, courts opted for the deference approach. B. The Origins of the Standard of Review Analysis: Resolving the Privative Clause Tension", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-53", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 82–83", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The deference approach emerged as a means of reconciling Parliament’s intent to immunize certain administrative decisions from review with the supervisory role of courts in a rule of law system. This approach originated with Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 (“C.U.P.E.”). In reviewing a labour tribunal decision, Dickson J., as he then was, wrote that the privative clause “constitutes a clear statutory direction on the part of the Legislature that public sector labour matters be promptly and finally decided by the [Public Service Labour Relations] Board” (p. 235). The decision of the Board was protected so long as it was not “so patently unreasonable that the Board . . . did ‘something which takes the exercise of its powers outside the protection of the privative or preclusive clause’” (p. 237).\n\nThe deference approach sought to give effect to the legislature’s recognition that the administrative decision-maker had relative expertise on some or all questions. The privative clause indicated the area of tribunal expertise that the legislature was satisfied warranted deference. As Professor Dyzenhaus explains: . . . CUPE involves more than concession. Right at the outset of the development of the idea of deference, it was clear that there was a judicial cession of interpretative authority to the tribunal, within the scope of its expertise — the area of jurisdiction protected by the privative clause. The cession was not total — the tribunal could not be patently unreasonable. But it was significant because it required that judges defer to the administration’s interpretations of the law, except on jurisdictional, constitutional, or constitution like issues. [Emphasis added; p. 512.]", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-54", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 84", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is clear in C.U.P.E. that the deferential approach was contingent upon and shaped by the relevant privative clause. Interpretive authority was only ceded to tribunals in the area “within the scope of its expertise — the area of jurisdiction protected by the privative clause”. A strong privative clause that protected legal as well as factual and discretionary decisions meant that the legislature recognized the tribunal as having relative expertise with respect to all these questions. Dickson J. emphasized that the legislature’s frequent use of privative clauses in the labour relations context was intimately connected to tribunal expertise. He wrote that “[t]he rationale for protection of a labour board’s decisions within jurisdiction is straightforward and compelling. The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations” (p. 235). In other words, tribunal expertise was a compelling rationale for imposing a privative clause. It was not, however, a free-standing basis for deference.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-55", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 85", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "A further step in the development of the deference approach was Bibeault, when this Court introduced the pragmatic and functional approach for determining the appropriate standard of review. The pragmatic and functional approach, now known simply as the standard of review analysis, was intended to focus “the Court’s inquiry directly on the intent of the legislator rather than on interpretation of an isolated provision” (p. 1089). In reviewing a decision-maker protected by a strong privative clause, this more expansive analysis examined “not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal” (p. 1088). Beetz J. emphasized the overarching objective of giving effect to legislative intent while upholding courts’ supervisory role in a rule of law system (see p. 1090).", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-56", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 86", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The reasoning of Gonthier J. in Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, further reflected this understanding that it is the privative clause that signals when deference is owed and that demarcates the area of relative expertise. Gonthier J. made clear that: Where the legislator has clearly stated that the decision of an administrative tribunal is final and binding, courts of original jurisdiction cannot interfere with such decisions unless the tribunal has committed an error which goes to its jurisdiction. . . . Decisions which are so protected are, in that sense, entitled to a non‑discretionary form of deference because the legislator intended them to be final and conclusive and, in turn, this intention arises out of the desire to leave the resolution of some issues in the hands of a specialized tribunal. [Emphasis added; p. 1744.] Gonthier J.’s statement captured the essential role of the privative clause. Privative clauses indicate the legislature’s intent that administrative decisions made within “the hands of a specialized tribunal” be deemed final and conclusive. It is in these cases that courts must balance their constitutional role to preserve the rule of law with the legislature’s intent to oust the courts’ jurisdiction. Gonthier J.’s reasoning understood expertise as the underlying rationale for enacting the privative clause. Expertise alone was not interpreted as indicating a legislative intent for finality. If the legislature intended to protect expert decision-makers from review, it did so through a privative clause. C. Departure From the Origins of Standard of Review: Expertise as a Stand-Alone Basis for Deference", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-57", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 87", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, with Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, there was a departure from the conceptual origin of standard of review I have described. That case involved the judicial review of a tribunal decision that was not protected by a privative clause and in fact was subject to a statutory right of appeal. Relying on the language of “specialization of duties” from Bell Canada, the Court in Pezim imputed relative expertise to the tribunal, including on questions of law, based on its statutory mandates. In Pezim, the Court reviewed the constating statute of the British Columbia Securities Commission and found that “[t]he breadth of the Commission’s expertise and specialisation is reflected in the provisions of the [B.C. Securities Act]” (p. 593). This approach of judicially imputing expertise, even on questions of law, was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature’s recognition of relative tribunal expertise.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-58", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 88–89", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "My colleague Binnie J. writes at para. 26 of his reasons that “Pezim has been cited and applied in numerous cases over the last 15 years.” In light of this, he rejects what he sees as my effort “to roll back the Dunsmuir clock”. With respect, I do not believe that the longevity of Pezim should stand in the way of this Court’s recent attempts to return conceptual clarity to the application of standard of review. The fact that Pezim has been cited in other cases does not preclude this Court from revisiting its reasoning where there are compelling reasons to do so: R. v. Robinson, [1996] 1 S.C.R. 683, at para. 46. In my view, Pezim’s departure from the conceptual basis for standard of review constitutes such a compelling reason. In Dunsmuir, this Court recognized that the time had “arrived for a reassessment” of “the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals” (para. 1). Such reassessment should include a return to the conceptual basis for standard of review.\n\nI do not dispute that reviewing courts, whether in the appellate or judicial review contexts, should show deference to lower courts and administrative decision-makers on questions of fact: see Deschamps J. in concurrence in Dunsmuir at para. 161. The principled bases articulated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 13, for deference to judicial triers of fact are also relevant in the administrative review context. Just as judicial triers of fact are better situated to make findings of fact at first instance, so too are tribunals, especially in the area of policy making. In cases involving mixed fact and law, where the legal question cannot be extricated from a factual or policy finding, deference should be shown.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-59", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 90", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, where a legal question can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause. The basic rule in the appellate context is that questions of law are to be reviewed on a correctness standard: Housen, at para. 8. The reasons for this are twofold. First, “the principle of universality requires appellate courts to ensure that the same legal rules are applied in similar situations”: Housen, at para. 9. Divergent applications of legal rules undermine the integrity of the rule of law. Dating back to the time of Dicey’s theory of British constitutionalism, almost all rule of law theories include a requirement that each person in the political community be subject to or guided by the same general law: see A. V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed. 1959), at p. 193; L. L. Fuller, The Morality of Law (rev. ed. 1969), at pp. 81-91 (advocating the principle of congruence between official action and declared rule); J. Raz, The Authority of Law: Essays on Law and Morality (1979), at pp. 215-17 (“[s]ince the court’s judgment establishes conclusively what is the law in the case before it, the litigants can be guided by law only if the judges apply the law correctly”). A correctness standard on questions of law is meant, in part, to ensure this universality. Second, appellate and reviewing courts have greater law-making expertise relative to trial judges and administrative decision-makers.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-60", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 90–91", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "As this Court emphasized in Housen: [W]hile the primary role of trial courts is to resolve individual disputes based on the facts before them and settled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. In order to fulfill the above functions, appellate courts require a broad scope of review with respect to matters of law. [para. 9]\n\nIn the administrative context, unlike the appellate context, the legislature may decide that an administrative decision-maker has superior expertise relative to a reviewing court, including on legal questions. It signals this recognition by enacting a strong privative clause. It is in these cases that the court must undertake a standard of review analysis to determine the appropriate level of deference that is owed to the tribunal. It is not for the court to impute tribunal expertise on legal questions, absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-61", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 92–93", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The distinction between the judicial and legislative roles was further blurred when the privative clause was incorporated into the pragmatic and functional approach in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. Pushpanathan set out the four relevant factors for the standard of review analysis: privative clause, expertise, purpose of the act as a whole and of the provision in particular, and the nature of the problem. Rather than being viewed as the express manifestation of legislative intent regarding deference, the privative clause was now treated simply as one of several factors in the calibration of deference (standard of review). As Professor Macklin notes, “[i]f the privative clause was an exercise in communicating legislative intent about the role of the courts, suffice to say that the message was, if not lost, then at least reformulated in translation” (p. 225). D. Legislative Intent\n\nIn my opinion, recognizing expertise as a free-standing basis for deference on questions that reviewing courts are normally considered to be expert on (law, jurisdiction, fraud, natural justice, etc.) departs from the search for legislative intent that governs this area. As Dunsmuir reaffirmed, the rationale behind the common law standard of review analysis is to give effect to legislative intent (Bastarache and LeBel JJ., at para. 30): see also Pushpanathan, at para. 26 (“[t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed”); C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 149 (standard of review as “seeking the polar star of legislative intent”).", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-62", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 94", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Where the recognition of relative expertise was grounded in the privative clause, the legislature’s intent was clear. Departures from that conceptual basis have led courts to undertake what are often artificial judicial determinations of relative expertise. It seems quite arbitrary, for example, that courts may look at the nature of a tribunal as defined by its enabling statute, but not always conduct a full review of its actual expertise. Should a reviewing court be required to consider the qualifications of administrative decision-makers on questions that courts are normally considered to have superior expertise? For example, should it matter whether or not decision-makers have legal training? In the specific context of statutory interpretation, should the reviewing court scrutinize whether or not the tribunal regularly reviews and interprets particular provisions in its home statute such that it possesses relative expertise with respect to such provisions? See L. Sossin, “Empty Ritual, Mechanical Exercise or the Discipline of Deference? Revisiting the Standard of Review in Administrative Law” (2003), 27 Advocates’ Q. 478, at p. 491 (for a discussion of the judicial determination of expertise).", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-63", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 95–96", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Far from subscribing to the view that courts should be reviewing the actual expertise of administrative decision-makers, it is my position that this is the function of the legislature. In my view, the discordance between imputed versus actual expertise is simply one manifestation of the larger conceptual unhinging of tribunal expertise from the privative clause. The legislatures that create administrative decision-makers are better able to consider the relative qualifications, specialization and day-to-day workings of tribunals, boards and other decision-makers which they themselves have constituted. Where the legislature believes that an administrative decision-maker possesses superior expertise on questions that are normally within the traditional bailiwick of courts (law, jurisdiction, fraud, natural justice, etc.), it can express this by enacting a privative clause.\n\nIn my respectful view, the majority’s common law standard of review approach seeks two polar stars — express legislative intent and judicially determined expertise ��� that may or may not align. While there was some attempt by the majority in Dunsmuir to reconnect these inquiries, the move has been incomplete. Professor David Mullan notes that “expertise is no longer described as the single most important factor” in Dunsmuir and the privative clause is seen as a “strong indication” of a requirement of deference: “Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let’s Try Again!” (2008), 21 C.J.A.L.P. 117, at pp. 125-26. In my view, it is time for the courts to acknowledge that privative clauses and tribunal expertise are two sides of the same coin. E. Recognizing the Limitation of Common Law Standard of Review Analysis", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-64", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 97", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Standard of review has dominated so much of administrative law jurisprudence and academic writing to date that one might hope it would, by now, provide a cogent and predictable analysis of when courts should adopt a deferential approach to an administrative decision. Dunsmuir demonstrates that this is still not the case. In Dunsmuir, six judges of this Court said that the standard of review applicable to the adjudicator’s legal determination was reasonableness. Three judges found that the standard was correctness. Each group focused on different aspects of the adjudicator’s decision-making process. The majority gave weight to the presence of a strong privative clause, that the adjudicator was imputed to have expertise in interpreting his home statute, that the purpose of the legislation was the timely and binding settlement of disputes, and that the legal question was not outside the specialized expertise of the adjudicator. The minority focused on the relationship between the common law rules relating to dismissal and those under the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25. Because their starting point was the common law, over which the adjudicator was not imputed to have expertise, the minority was of the view that the correctness standard applied.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-65", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 98–99", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "What this demonstrates is that the common law standard of review analysis continues to provide little certainty about which standard will apply in a particular case. How a court will weigh and balance the four standard of review factors remains difficult to predict and therefore more costly to litigate. In my view, it must be recognized that the common law standard of review analysis does not provide for a panacea of rigorous and objective decision making regarding the intensity with which courts should review tribunal decisions. In attempting to reconcile the court’s constitutional role in the face of a strong privative clause, it may be the best that we have at this point. But its application outside the privative clause context is, in my view, of highly questionable efficacy. III. Judicial Recognition of Legislated Standards of Review A. Giving Effect to Legislative Intent\n\nThis Court has considered legislative language similar to that in s. 18.1(4) in previous cases and has held that a common law standard of review analysis is not necessary where the legislature has provided for standards of review. This Court held in R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, that legislative rules specifying standards of review must be given effect by courts, subject to constitutional limits.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-66", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 100–101", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority now attempts to qualify that holding in Owen. In my respectful view, that is ignoring the obvious. The majority insists that although not stated, the “common law of judicial review” was still in play in Owen. Binnie J. writes that “even in the context of a precisely targeted proceeding related to a named adjudicative board, the standard of review was evaluated by reference to the common law of judicial review” (para. 31). In my respectful opinion, to say (or imply) that a Dunsmuir standard of review analysis applies even where the legislature has articulated the applicable standard of review directly contradicts Owen.\n\nThe majority nevertheless implies that even if the Dunsmuir standard of review analysis did not apply in Owen, this was only because of the specificity of s. 672.38 of the Criminal Code , R.S.C. 1985, c. C-46 (see para. 29). That section sets out the standard of review to be applied on judicial review of decisions from Review Boards regarding the liberty of persons found not criminally responsible. The majority contrasts this with s. 18.1 of the FCA , stating that “[r]esort to the general law of judicial review is all the more essential in the case of a provision like s. 18.1 of the [FCA ] which, unlike s. 672 of the Criminal Code , is not limited to particular issues before a particular adjudicative tribunal” (para. 33). Thus, even if one rejects the view that a common law standard of review analysis was present in Owen, the majority still says that the generality of s. 18.1 of the FCA makes it applicable in the present case.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-67", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 102–103", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The problem with this reasoning is that such qualification would seriously undermine the legislature’s ability to introduce greater certainty and predictability into the standard of review process. Drawn to its logical conclusion, in order to displace the Dunsmuir standard of review analysis, the majority’s approach would require legislatures to enact standard of review legislation with respect to every single administrative tribunal or decision-maker and perhaps in relation to every type of decision they make. With respect, this amounts to a serious overreaching of this Court’s role. It fails to respect the legislature’s prerogative to articulate, within constitutional limits, what standard of review should apply to decision-makers that are wholly the products of legislation.\n\nIn discussing British Columbia’s Administrative Tribunals Act, S.B.C. 2004, c. 45 (“B.C. ATA”), Binnie J. notes that “most if not all judicial review statutes are drafted against the background of the common law of judicial review” (para. 19). While I agree with this observation, I disagree with him as to the conclusions that should flow from it. The majority views the common law background as providing an opening for the continued relevance of a common law standard of review analysis. In reference to s. 58(2)(a) of the B.C. ATA, Binnie J. writes: Despite Dunsmuir, “patent unreasonableness” will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law. [Underlining added; para. 19.]", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-68", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 104–105", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority would allow for recourse to the common law on several fronts. First, Binnie J. states that the common law jurisprudence on the “content” of “patently unreasonable” will be relevant. I agree that the common law will be a necessary interpretive tool where common law expressions are employed by the legislator and are not adequately defined: see R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 434-36; R. v. Holmes, [1988] 1 S.C.R. 914; Waldick v. Malcolm, [1991] 2 S.C.R. 456.\n\nHowever, the majority would also allow for recourse on a second front. Binnie J. says that “the precise degree of deference [patently unreasonable] commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law” (para. 19). It is unclear exactly which principles of administrative law are being referred to. If the reference to general principles of administrative law means there is some sort of spectrum along which patent unreasonableness is to be calibrated, that would be at odds with the B.C. legislature’s codification of discrete standards of review.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-69", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 106", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "With the ATA, the B.C. legislature expressly codified the standards of review. However, in order for legislation to be exhaustive on a particular question, legislatures are not required to expressly oust the common law by statute. In Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, this Court considered whether recourse to the common law duty of fair representation was appropriate where the legislature had created a statutory duty. L’Heureux‑Dubé J., writing for a unanimous Court, emphasized that because the content of the statutory remedy was “identical to the duty at common law”, the “common law duty is therefore not in any sense additive; it is merely duplicative” (p. 1316). The Court went on to hold that the common law duty of fair representation is neither “necessary [nor] appropriate” in circumstances where the statutory duty applies. Parliament has codified the common law duty and provided a new and superior method of remedying a breach. It is therefore reasonable to conclude that while the legislation does not expressly oust the common law duty of fair representation, it does however effect this end by necessary implication . . . . [Emphasis in original; p. 1319.] Thus, while recourse to the common law is appropriate where Parliament has employed common law terms or principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the case with s. 18.1(4) of the FCA . B. The Majority’s Concern With the Rigidity of Legislated Standards Is Misplaced", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-70", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 107–108", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority expresses concern with the rigidity of general legislative schemes in the judicial review context. With respect to the B.C. ATA, Binnie J. writes of the need for a common law analysis that would account for the “diverse circumstances of a large provincial administration” (para. 19). In the federal context, he writes: “It cannot have been Parliament’s intent to create . . . a single, rigid Procrustean standard of decontextualized review . . .” (para. 28). By focussing on the diversity of decision-makers covered by the FCA and the B.C. ATA, the majority’s reasons make prescribed standards appear overly rigid, even arbitrary.\n\nWith respect, the image of the Procrustean bed is misplaced in the judicial review context. The invocation of the Procrustean image with respect to legislated rules creates the impression that the contrasting common law standard of review is operating in a fluid, fully contextualized paradigm. This is not the case. This is not an area where Parliament is imposing rigid conformity against the backdrop of a panoply of common law standards. The potential flexibility of a contextual common law analysis is already limited in the post-Dunsmuir world of two standards. Regardless of what type of decision-maker is involved, whether a Cabinet minister or an entry‑level fonctionnaire (para. 28), the Dunsmuir analysis can only lead to one of two possible outcomes: reasonableness or correctness. And, as the present majority makes clear, these are single standards, not moving points along a spectrum (para. 59).", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-71", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 109–110", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Moreover, the majority’s concerns regarding legislative rigidity are only realized if one accepts that the focus of the analysis should or must be on the type of administrative decision-maker. The majority’s argument is that it cannot have been intended for a range of decision-makers to be subject to the same standards of review. A review of the FCA and the B.C. ATA makes clear, however, that the respective legislatures believed the focus should be on the nature of the question under review (e.g., fact, law, etc.), rather than the nature of the decision-maker. So there is a diversity in these schemes. It just operates according to the type of question being reviewed.\n\nEven given this legislative focus on the type of question under review, it is still not the case that all administrative decision-makers are subject to the same standards of review. Where a decision-maker’s enabling statute purports to preclude judicial review on some or all questions through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted. This is precisely how Parliament has legislated in the FCA context when it intends for greater deference to be shown to certain decision-makers.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-72", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 111", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Canada Labour Code , R.S.C. 1985, c. L-2 , for example, includes a strong privative clause protecting the Canadian Industrial Relations Board from judicial review under the FCA on questions of law and fact. Section 22(1) states: 22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act. Section 22(1) expressly provides for review on questions of jurisdiction, procedural fairness, fraud or perjured evidence, but excludes review for errors of law or fact through express reference to s. 18.1(4) of the FCA . Where the privative clause applies, i.e. with respect to s. 18.1(4)(c), (d), or (f), the court is faced with a tension between its constitutional review role and legislative supremacy. In such cases, the Dunsmuir analysis applies. There is no role for the Dunsmuir standard of review analysis where s. 22(1) expressly provides for review on questions of jurisdiction, natural justice and fraud. Correctness review applies in these cases.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-73", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 112–113", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "In contrast, the Immigration and Refugee Protection Act , S.C. 2001, c. 27 — the underlying legislation in the present case — does not contain this type of privative clause. Section 162(1) only provides that “[e]ach Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.” Contrary to the implication of the majority reasons, I think it is plain that this privative clause is intended only to differentiate between different levels and tribunals within the immigration regime and provide each with exclusive jurisdiction to hear legal and factual questions. It is not a privative clause that seeks to restrict or preclude judicial review.\n\nThese examples indicate that Parliament has not been unmindful of the issue of standard of review in s. 18.1(4). Where it intends that a tribunal decision reviewed under s. 18.1 be shown deference, Parliament expressly indicates this either in s. 18.1(4) itself, as it has in para. (d) with respect to facts, or in the underlying legislation such as the Canada Labour Code . Where it does not, the courts should undertake their review according to the standards of correctness.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-74", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 114", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "I would note that the B.C. legislature has also turned its mind to these concerns. The B.C. ATA provides for more deferential standards of review where the underlying statute contains a privative clause. By imposing different standards of review depending on whether or not the administrative decision is protected by a privative clause, the legislature differentiates between those expert decisions it wished to protect and those it did not (ss. 58 and 59). The Honourable Geoff Plant indicated this when introducing the B.C. ATA on second reading: For tribunals with specialized expertise, like the Farm Industry Review Board and the Employment Standards Tribunal, this bill generally provides that a court must defer to a tribunal’s decision unless the decision is patently unreasonable or the tribunal has acted unfairly. For other tribunals — including, for example, the mental health review panels — the bill provides that with limited exceptions, a court must adopt a standard of correctness in reviewing the tribunal’s decisions. (Debates of the Legislative Assembly, 5th Sess., 37th Parl., May 18, 2004, at p. 11193)", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-75", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 115–117", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The record of the proceedings of the B.C. legislature also makes clear the legislature’s intent to codify standards of review that would oust a duplicative common law standard of review analysis. The policy rationale for this move was clear. The legislation was aimed at refocussing judicial review litigation on the merits of the case, rather than on the convoluted process of determining and applying the standard of review. The question of what the standard of review should be on a case‑by‑case basis is often interpreted by the courts as a search for legislative intent. . . . Accordingly, searching for that intent tends to be a time‑consuming, expensive and sometimes disruptive exercise. . . . . . . The provisions in this bill that codify the standards of review will shift the focus from what has been largely a scholarly debate about fine points of law to matters of greater immediate concern to the parties in tribunal proceedings. [Emphasis added.] (Debates of the Legislative Assembly, at p. 11193)\n\nIt would be troubling, I believe, to the B.C. legislature to think that, despite its effort to codify standard of review and shift the focus of judicial review to the merits of the case, this Court would re-impose a duplicative Dunsmuir-type analysis in cases arising under the B.C. ATA. IV. Statutory Interpretation of the Federal Courts Act A. Section 18.1(4)\n\nSection 18.1(4) appears at para. 71 above. On my reading, where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-76", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 118", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my opinion, it is useful to analyse s. 18.1(4) by first examining para. (d), which provides for judicial review where the federal board, commission or other tribunal (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; In this paragraph, Parliament has expressly instructed courts to show significant deference to the original decision-maker. The words “in a perverse or capricious manner or without regard for the material before it” are clear and unambiguous. They indicate that on questions of fact, courts are only to interfere in the most egregious cases of erroneous fact finding.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-77", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 119–120", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Binnie J. also finds that “it is clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference” (para. 46). It would seem that in recognizing that the legislature intended a high degree of deference, one would conclude that this provision speaks for itself and ousts a common law standard of review analysis. Yet, Binnie J. still suggests that the provision is merely complementary of the common law, rather than dispositive of the standard of review issue. He writes that s. 18.1(4)(d) “provides legislative precision to the reasonableness standard of review of factual issues” and is “quite consistent with Dunsmuir” (para. 46). By superimposing Dunsmuir, the majority signals that factual decisions are to be reviewed on a reasonableness standard. The question then is whether reasonableness implies the same level of deference as “capricious” and “perverse”. Arguably, a reasonableness review might be less deferential than that intended by the words Parliament used. Regardless of whether that is true or not, there is no justification for imposing a duplicative common law analysis where the statute expressly provides for the standard of review: see Gendron.\n\nBy contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4). Parliament recognized that with respect to factual determinations, a federal board, commission or other tribunal is better situated than a reviewing court. With respect to questions of law, jurisdiction, natural justice, fraud or perjured evidence, the legislation deems courts to have greater expertise than administrative decision-makers.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-78", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 121", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "There is no suggestion in the FCA that reviewing courts should defer on questions of law. Section 18.1(4)(c) provides for review where the federal board, commission or other tribunal (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; I can see no meaningful difference between the terms “the decision is based on a wrong decision on a question of law” which, in Owen, was considered to be sufficient by this Court to determine that a correctness standard of review applied, and “erred in law in making a decision or an order, whether or not the error appears on the face of the record” in s. 18.1(4)(c). Indeed, in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, a unanimous Court thought that the words of s. 18.1(4) were sufficiently clear that “[u]nder these provisions, questions of law are reviewable on a standard of correctness” (para. 37). Mugesera, like this case, was a judicial review of a decision of the IAD.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-79", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 122", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority now attempts to qualify Mugesera by writing that “[e]rrors of law are generally governed by a correctness standard” (para. 44 (emphasis added)). With respect, Mugesera did not qualify its application of the correctness standard of review in interpreting s. 18.1(4)(c). Paragraph 37 of Mugesera states: Applications for judicial review of administrative decisions rendered pursuant to the Immigration Act are subject to s. 18.1 of the Federal Court Act . Paragraphs (c) and (d) of s. 18.1(4), in particular, allow the Court to grant relief if the federal commission erred in law or based its decision on an erroneous finding of fact. Under these provisions, questions of law are reviewable on a standard of correctness. Moreover, contrary to what the present majority implies, the Court in Mugesera did not limit the application of the correctness standard to “the general questions of international law and criminal law at issue in that case” (para. 44 of majority). It is clear that as a matter of statutory interpretation, the Court understood s. 18.1(4)(c) as requiring a correctness review on questions of law. The Court saw no need to impose the common law over what the statute itself dictated.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-80", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 123–124", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The majority nevertheless insists that “para. (c) provides a ground of intervention, but the common law will stay the hand of the judge(s) in certain cases if the interpretation is by an expert adjudicator interpreting his or her home statute or a closely related statute” (para. 44 (emphasis in original)). With respect, there is no authority for this in the legislation. The majority finds their opening in the remedial discretion of s. 18.1(4). Binnie J. writes: “This nuance does not appear on the face of para. (c), but it is the common law principle on which the discretion provided in s. 18.1(4) is to be exercised” (para. 44). As I will explain, the remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself. The bases upon which the remedial discretion is to be exercised are wholly distinct from the common law of standard of review analysis.\n\nParagraphs (a), (b) and (e) of s. 18.1(4) provide for relief where a federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; . . . (e) acted, or failed to act, by reason of fraud or perjured evidence; There is no indication in any of these provisions that the legislature intended for the reviewing court to show any deference to administrative decision-makers in determining questions of jurisdiction, natural justice, procedural fairness and fraud or perjured evidence.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-81", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 125", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 18.1(4)(f) contemplates judicial intervention where the federal board, commission or other tribunal (f) acted in any other way that was contrary to law. The majority writes that s. 18.1(4)(f) “necessarily includes ‘law’ outside the [FCA ]” (para. 48) and therefore demonstrates that “s. 18.1(4) is not intended to operate as a self-contained code, but is intended by Parliament to be interpreted and applied against the backdrop of the common law, including those elements most recently expounded in Dunsmuir” (para. 48). The majority relies on the statement by the authors of Federal Courts Practice 2009 (2008), B. J. Saunders et al., that “[s]ection 18.1(4)(f) ensures that the Court will not be hindered in developing new grounds for review” (para. 49 (emphasis added by Binnie J.)).", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-82", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 126", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is not in dispute that s. 18.1(4) is not intended to operate as a self-contained code. In judicial review of any administrative decision where a legal error is alleged, the court is required to consider whether the decision-maker was in breach of any statutory provision or common law rule that might be relevant. In this regard, I agree that s. 18.1(4)(f) provides for potentially expanded grounds of review. However, that is not the issue in this case. The issue in this case is whether Parliament has legislated exhaustively on the standard of review, so as to oust the Dunsmuir standard of review analysis. Binnie J.’s reliance on Saunders et al.’s discussion of the “grounds of review” under s. 18.1(4) does not address whether the section also provides for standards of review. This is troubling, given that those same commentators find that s. 18.1(4) does provide for standards of review on questions of fact and law. At p. 145 of their text under the title “Grounds for Review — Standard of Review — Generally” in commenting on Mugesera, they write: Under section 18.1(4) (c) and (d) of the Federal Courts Act , questions of law are reviewable on a standard of correctness. On questions of fact, the reviewing court can intervene under section 18.1(4)(d) only if it considers that the tribunal “based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it”.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-83", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 127–128", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "All that s. 18.1(4)(f) provides for is review of legal errors committed by a federal board, commission or other tribunal other than those “in making a decision or an order”, which are already captured under s. 18.1(4)(c): see Morneault v. Canada (Attorney General), [2001] 1 F.C. 30 (C.A.), at para. 44 (“the intent of the paragraph appears to have been to afford a ground that was not otherwise specifically mentioned in subsection 18.1(4)”). A tribunal’s refusal to make a decision or an order, for example, would not come under para. (c). The reference to “acted in any other way that was contrary to law” refers, then, to legal errors that are not captured by s. 18.1(4)(c). It does not provide an opening for a Dunsmuir standard of review analysis. With respect, the majority’s view of s. 18.1(4) ignores the obvious interpretation in search of something that is not there. B. Section 18 and the Origins of the Federal Courts Act\n\nThe majority is of the view that when s. 18.1 was added to the FCA , it “did not have the effect of excluding the common law” (para. 34). It appears that this proposition is intended to act as a platform for the applicability of the common law standard of review analysis. With respect, it is overly broad to suggest that all elements of the common law continued to apply to s. 18.1(4) simply because there were some gaps — for example, criteria in exercising the discretion to withhold relief — which the common law continued to fill. For the reasons I have explained, the FCA occupies the area of standard of review and therefore ousts the application of the common law on this question.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-84", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 129–130", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The genesis of the FCA and its amendments is not in dispute. Section 18 was enacted to transfer jurisdiction from the provincial superior courts to the federal courts for judicial review of federal tribunals, subject to provincial courts retaining a residual jurisdiction to determine the constitutionality and applicability of legislation. Section 18, which refers to the prerogative writs, survives, but no application for judicial review can be made under it. Subsection (3) provides: The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1. Section 18.1 contains the statutory process under which judicial review may be applied for and under which the court exercises its jurisdiction.\n\nThe 1990 amendments were intended to clarify pre-existing procedural confusion about whether the trial or appeal divisions had jurisdiction with regard to particular applications for judicial review. The amendments also aimed to simplify the procedure for obtaining a remedy by requiring that it be sought by way of application for judicial review, rather than by way of statement of claim or originating notice of motion as had been the prior practice: D. Sgayias et al., Federal Court Practice 1998 (1997), at pp. 69-70. As reform legislation, the amendments did not concern the standard of review. C. The Implications of Section 18.1(4) Remedial Discretion", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-85", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 131–132", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "I agree with Binnie J.’s bilingual analysis and conclusion that, “notwithstanding the bilingual issue in the text, s. 18.1(4) should be interpreted so as to preserve to the Federal Court a discretion to grant or withhold relief” (para. 40). The pertinent question is what should form the basis for the exercise of that judicial discretion. Relief on judicial review is equitable. The discretion in s. 18.1(4) recognizes that it may be inappropriate to grant equitable relief in some cases. This remedial discretion allows a reviewing judge to withhold relief in certain cases. It does not concern the review itself, however.\n\nThe majority says that the FCA does not “indicate in what circumstances . . . relief may properly be withheld” (para. 42). It is true that the legislation does not provide for criteria according to which reviewing courts should exercise their discretion to withhold relief. In the context of this specific gap, I agree with the majority that “resort will have to be had to the common law” (para. 42). The pertinent question is which part of the common law is relevant to the withholding of relief by the court on judicial review.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-86", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 133–134", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Binnie J. attempts to ground the court’s remedial discretion to withhold relief in general judicial review principles. He states at para. 36 that the court’s exercise of the s. 18.1(4) discretion “will depend on the court’s appreciation of the respective roles of the courts and the administration as well as the ‘circumstances of each case’: see Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 575.” He cites Brown and Evans’ observation that “whenever the court exercises its discretion to deny relief, balance of convenience considerations are involved” (para. 36); D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 3-99. While “the discretion must be exercised judicially”, Binnie J. finds that “the general principles of judicial review dealt with in Dunsmuir provide elements of the appropriate judicial basis for its exercise” (para. 36).\n\nBy linking remedial discretion to Dunsmuir “general principles of judicial review”, Binnie J. conflates standard of review (deference) with the granting of relief. In doing so, he effectively reads in an opening for recourse to the common law standard of review analysis. He relies on the specific gap regarding the discretion to grant relief to impute a wider gap regarding standard of review.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-87", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 135–136", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "With respect, this is not the nature of the discretion under s. 18.1(4). The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies: Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326, at p. 364. As Harelkin affirmed, at p. 575, courts may exercise their discretion to refuse relief to applicants “if they have been guilty of unreasonable delay or misconduct or if an adequate alternative remedy exists, notwithstanding that they have proved a usurpation of jurisdiction by the inferior tribunal or an omission to perform a public duty”. As in the case of interlocutory injunctions, courts exercising discretion to grant relief on judicial review will take into account the public interest, any disproportionate impact on the parties and the interests of third parties. This is the type of “balance of convenience” analysis to which Brown and Evans were referring.\n\nThus, the discretion contained in s. 18.1(4) speaks to the withholding of relief in appropriate cases; it does not engage the question of standard of review. Reliance upon it by the majority to support the view that it opens the door to the Dunsmuir standard of review analysis is, with respect, misplaced. In my view, the Dunsmuir standard of review should be confined to cases in which there is a strong privative clause. Excepting such cases, it does not apply to s. 18.1(4) of the FCA . V. Decision in This Case", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-88", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 137–140", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "In determining whether the respondent was eligible for the special relief available under s. 67(1) (c) of the Immigration and Refugee Protection Act , the IAD acknowledged that its discretion should be exercised with consideration for the criteria set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL) (endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84). The majority of the IAD expressly referred to the Ribic factors and, in my view, had regard to those it considered relevant in exercising its discretion. The actual application of the Ribic factors to the case before it and its exercise of discretion is fact-based. I do not find that the factual findings of the IAD were perverse or capricious or were made without regard to the evidence. I would allow the appeal. The following are the reasons delivered by\n\nDeschamps J. — I agree with Rothstein J. that since s. 18.1(4) of the Federal Courts Act , R.S.C. 1985, c. F-7 , sets legislated standards of review, those standards oust the common law. Consequently, I agree with Parts III, IV and V of his reasons and would also allow the appeal. The following are the reasons delivered by Fish J. (dissenting) — I\n\nThis appeal raises two issues. The first concerns the standard of review with respect to decisions of the Immigration Appeal Division (“IAD”). In that regard, I agree with Justice Binnie that the standard of review is “reasonableness”.\n\nThe second issue is whether the majority decision of the IAD in this case survives judicial scrutiny under that standard. Unlike Justice Binnie, and with the greatest of respect, I have concluded that it does not.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-89", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 141–145", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Essentially, I find that the decision of the IAD rests on what the Court of Appeal has aptly described as a “fixation” that collides with the overwhelming weight of the uncontradicted evidence in the record before it. I agree with the majority below that the decision, for this reason, cannot stand.\n\nAccordingly, I would dismiss the appeal. II\n\nIn 2000, when he was 18 years old, Sukhvir Singh Khosa caused the death of Irene Thorpe by driving recklessly at more than twice the speed limit, losing control of his automobile and running it off the roadway. He had by then been living in Canada for four years. When his appeal to the IAD was decided in 2004, he was 22 and married. Four more years have elapsed since then.\n\nTo order Mr. Khosa’s removal would separate him from his wife and immediate family. It would return him to a country he has visited only once since emigrating at the age of 14 and where he appears to have few relatives.\n\nThe IAD’s task in this case is to look to “all the circumstances of the case” in order to determine whether “sufficient humanitarian and compassionate considerations” existed to warrant relief from a removal order: Immigration and Refugee Protection Act , S.C. 2001, c. 27, s. 67(1) (c). The IAD is bound in performing that function to consider the various factors set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 90. The IAD in this case placed the greatest emphasis on the factors of remorse, rehabilitation, and likelihood of reoffence.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-90", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "para 146", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "With respect to these factors, the record before the IAD consisted essentially of the following uncontested and uncontradicted evidence: · The sentencing judge found that “by his actions immediately after learning of Ms. Thorpe’s death and since the accident . . . he has expressed remorse” (R. v. Khosa, 2003 BCSC 221, [2003] B.C.J. No. 280 (QL), at para. 56). · Mr. Khosa took responsibility for his crime early, expressing a desire to attend the funeral of the woman he had killed and offering — before any arraignment or preliminary inquiry — to plead guilty to dangerous driving causing death. · The sentencing judge found that “[i]n the more than two years that have passed since the accident, Mr. Khosa has not left the house except to go to work, to school, or the Sikh temple. He normally does not drink. He does not take drugs. He has no criminal record. He has no driving record. He has complied with all of his bail conditions and is not likely to re-offend” (para. 55 (emphasis added)). · Mr. Khosa had not driven a car since the accident, even though he was permitted to do so for some months thereafter. · Mr. Khosa’s probation officer concluded from close and extensive contact with Mr. Khosa that he “appears to be making a sincere effort to maintain a stable and responsible life style in which he is a contributing member of the community”. The probation officer also reported that he has “demonstrated a very positive attitude towards community supervision [and] willingly conforms to the expectations, requirements, and restrictions of the Conditional Sentence”. With respect to his character, the probation officer was of the view that Mr. Khosa “presents as a pro‑social young man who values work, family, community and religion” (Appellant’s Record, at p. 355). · Mr.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-91", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 146–149", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Khosa had no previous criminal or driving convictions whatever. · Mr. Khosa had complied with all provisions of his conditional sentence. · Several employers wrote letters describing Mr. Khosa as conscientious and reliable.\n\nDespite all of this evidence indicating that Mr. Khosa was extremely unlikely to reoffend and had taken responsibility for his actions, the majority at the IAD seized upon one consideration: Mr. Khosa’s denial that he was “street-racing” at the time the accident occurred. Apart from a brief mention of Mr. Khosa’s “show of relative remorse at [the] hearing” ([2004] I.A.D.D. No. 1268 (QL), at para. 15), and a passing allusion to the judgments of the criminal courts to his culpability (para. 14), Mr. Khosa’s denial was the only consideration that the IAD majority considered with respect to these issues. Manifestly, this solitary fact was the decisive element — if not the sole basis — upon which the majority of the IAD denied Mr. Khosa’s basis for all humanitarian and compassionate relief.\n\nSo much cannot reasonably be made out of so little. III\n\nWhile Mr. Khosa’s denial of street racing may well evidence some “lack of insight” into his own conduct, it cannot reasonably be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-92", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 150–152", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IAD’s cursory treatment of the sentencing judge’s findings on remorse and the risk of recidivism are particularly troubling. While findings of the criminal courts are not necessarily binding upon an administrative tribunal with a distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to consider those findings and to explain the basis of its disagreement with the decision of the sentencing judge. The majority decision at the IAD mentions only in passing the favourable findings of the criminal courts and does not explain at all its disagreement with them.\n\nMoreover, Mr. Khosa’s denial of street racing is, at best, of little probative significance in determining his remorse, rehabilitation and likelihood of reoffence. In light, particularly, of the extensive, uncontradicted and unexplained evidence to the contrary, Mr. Khosa’s denial of street racing cannot reasonably support the inference drawn from it by the majority in the IAD.\n\nIt is also important to note that street racing was not a necessary element of Mr. Khosa’s crime of criminal negligence causing death (R. v. Khosa, 2003 BCCA 644, 190 B.C.A.C. 23, at para. 85). It appears that Mr. Khosa’s refusal to accept his guilty verdict on this charge — in contrast with his willingness to plead guilty to the less serious charge of dangerous driving causing death — is due solely to his mistaken impression that the former requires a finding that he was racing (Appellant’s Record, at p. 145). This is therefore not a case where a person in deportation proceedings maintains his innocence, as suggested by the majority of the IAD (at para. 14), but rather a case where the immigrant simply disputes an ancillary finding of the criminal court.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-93", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 153–156", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "Whatever the correct interpretation of Mr. Khosa’s denial that he was street-racing, it is clear that the majority at the IAD had “some kind of fixation” — to again borrow the phrase of the majority below — with this piece of evidence, and based its refusal to grant humanitarian and compassionate relief largely on this single fact.\n\nThe majority at the IAD made repeated reference to the denial. Toward the end of its decision, it stated that in light of Mr. Khosa’s “failure . . . to acknowledge his conduct and accept responsibility for . . . street-racing . . ., there is insufficient evidence upon which I can make a determination that [Mr. Khosa] does not represent a present risk to the public” (para. 23 (emphasis added)). I find that this conclusion is not only incorrect, but unreasonable. There was ample evidence suggesting that he posed no risk. The majority decision of the IAD simply disregarded virtually all of that evidence.\n\nLater, in justifying its decision to deny all relief rather than order a stay of removal, the majority wrote that Mr. Khosa’s “failure to acknowledge or take responsibility for his specific reckless conduct does not suggest that any purpose would be served by staying the present removal order” (para. 24). Here, again, the decision of the IAD majority transforms a limited, specific and ancillary denial into a general failure to take responsibility.\n\nThe majority’s inordinate focus on racing and its failure to consider contrary evidence do not “fit comfortably with the principles of justification, transparency and intelligibility” that are required in order to withstand reasonableness review (reasons of Binnie J., at para. 59).", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-6901-94", - "doc_type": "caselaw", - "act_code": "2009 SCC 12", - "act_short": "Khosa", - "act_name": "Canada (Citizenship and Immigration) v. Khosa", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", - "marginal_note": "paras 157–161", - "heading": "Standard of review of immigration decisions; judicial review of a removal order", - "part": "Supreme Court of Canada", - "division": "", - "text": "With respect, I thus feel bound to conclude that the IAD was unreasonable in its evaluation of Mr. Khosa’s rehabilitation, remorse and likelihood of reoffence. IV\n\nBecause the IAD’s finding on these specific factors was central to its ultimate decision to deny any and all humanitarian and compassionate relief, the IAD’s determination cannot be sustained.\n\nTo be sure, the majority at the IAD stated that even if it were to have found that Mr. Khosa did not present a risk to the public “in balancing all the relevant factors, I determine the scale does not tip in [Mr. Khosa’s] favour and decline to exercise favourable discretion” (para. 23). This sort of conclusory statement, however, cannot insulate the IAD’s decision from review when the rest of its reasons demonstrate that its decision rests on an unreasonable determination of central importance, as in this case.\n\nI agree that decisions of the IAD are entitled to deference. In my respectful view, however, deference ends where unreasonableness begins. V\n\nFor all these reasons, as stated at the outset, I would dismiss the appeal and affirm the judgment of the Court of Appeal returning this matter to the IAD for reconsideration before a differently constituted panel. Appeal allowed, Fish J. dissenting.", - "current_to": "2009-03-06", - "last_amended": "", - "history": "[2009] 1 SCR 339", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" - }, - { - "id": "scc-2345-1", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 1–2", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security. Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.\n\nIn this case, we are confronted with a statute, the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), that attempts to resolve this tension in the immigration context by allowing the Minister of Citizenship and Immigration (the “Minister”), and the Minister of Public Safety and Emergency Preparedness (collectively “the ministers”) to issue a certificate of inadmissibility leading to the detention of a permanent resident or foreign national deemed to be a threat to national security. The certificate and the detention are both subject to review by a judge, in a process that may deprive the person named in the certificate of some or all of the information on the basis of which the certificate was issued or the detention ordered. The question is whether the solution that Parliament has enacted conforms to the Constitution, and in particular the guarantees in the Canadian Charter of Rights and Freedoms that protect against unjustifiable intrusions on liberty, equality and the freedom from arbitrary detention and from cruel and unusual treatment.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-2", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 3–4", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "I conclude that the IRPA unjustifiably violates s. 7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person’s interests. I also conclude that some of the time limits in the provisions for continuing detention of a foreign national violate ss. 9 and 10(c) because they are arbitrary. I find that s. 12 has not been shown to be violated since a meaningful detention review process offers relief against the possibility of indefinite detention. Finally, I find that there is no breach of the s. 15 equality right. II. Background\n\nThe provisions of the IRPA at issue in this case, reproduced in the Appendix, are part of Canada’s immigration law. Their purpose is to permit the removal of non-citizens living in Canada — permanent residents and foreign nationals — on various grounds, including connection with terrorist activities. The scheme permits deportation on the basis of confidential information that is not to be disclosed to the person named in the certificate or anyone acting on the person’s behalf or in his or her interest. The scheme was meant to “facilitat[e] the early removal of persons who are inadmissible on serious grounds, including persons posing a threat to the security of Canada” (Clause by Clause Analysis (2001), at p. 72). In reality, however, it may also lead to long periods of incarceration.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-3", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 5", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA requires the ministers to sign a certificate declaring that a foreign national or permanent resident is inadmissible to enter or remain in Canada on grounds of security, among others: s. 77. A judge of the Federal Court then reviews the certificate to determine whether it is reasonable: s. 80. If the state so requests, the review is conducted in camera and ex parte. The person named in the certificate has no right to see the material on the basis of which the certificate was issued. Non-sensitive material may be disclosed; sensitive or confidential material must not be disclosed if the government objects. The named person and his or her lawyer cannot see undisclosed material, although the ministers and the reviewing judge may rely on it. At the end of the day, the judge must provide the person with a summary of the case against him or her — a summary that does not disclose material that might compromise national security. If the judge determines that the certificate is reasonable, there is no appeal and no way to have the decision judicially reviewed: s. 80(3).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-4", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 6", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The consequences of the issuance and confirmation of a certificate of inadmissibility vary, depending on whether the person is a permanent resident of Canada or a foreign national whose right to remain in Canada has not yet been confirmed. Permanent residents who the ministers have reasonable grounds to believe are a danger to national security may be held in detention. In order to detain them, the ministers must issue a warrant stating that the person is a threat to national security or to another person, or is unlikely to appear at a proceeding or for removal. Foreign nationals, meanwhile, must be detained once a certificate is issued: under s. 82(2), the detention is automatic. While the detention of a permanent resident must be reviewed within 48 hours, a foreign national, on the other hand, must apply for review, but may not do so until 120 days after a judge of the Federal Court determines the certificate to be reasonable. In both cases, if the judge finds the certificate to be reasonable, it becomes a removal order. Such an order deprives permanent residents of their status; their detention is then subject to review on the same basis as that of other foreign nationals.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-5", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 7–9", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The removal order cannot be appealed and may be immediately enforced, thus eliminating the requirement of holding or continuing an examination or an admissibility hearing: s. 81(b). The detainee, whether a permanent resident or a foreign national, may no longer apply for protection: s. 81(c). Additionally, a refugee or a protected person determined to be inadmissible on any of the grounds for a certificate loses the protection of the principle of non-refoulement under s. 115(1) if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada: s. 115(2). This means that he or she may, at least in theory, be deported to torture.\n\nA permanent resident detained under a certificate is entitled to a review of his or her detention every six months. Under s. 83(3), a judge must order the detention of a permanent resident to be continued if the judge is satisfied that the person continues to pose a danger to security or to the safety of another, or is unlikely to appear at a proceeding or for removal.\n\nThe detention of foreign nationals, on the other hand, is mandatory. If a foreign national has not been removed within 120 days of the certificate being found reasonable by a judge, however, the judge may order the person released on appropriate conditions if “satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person”: s. 84(2). Even if released, the foreign national may be deported.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-6", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 10", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Charkaoui is a permanent resident, while Messrs. Harkat and Almrei are foreign nationals who had been recognized as Convention refugees. All were living in Canada when they were arrested and detained. At the time of the decisions on appeal, all had been detained for some time — since 2003, 2002 and 2001 respectively. In 2001, a judge of the Federal Court determined Mr. Almrei’s certificate to be reasonable; another determined Mr. Harkat’s certificate to be reasonable in 2005. The reasonableness of Mr. Charkaoui’s certificate has yet to be determined. Messrs. Charkaoui and Harkat were released on conditions in 2005 and 2006 respectively, but Mr. Harkat has been advised that he will be deported to Algeria, which he is contesting in other proceedings. Mr. Almrei remains in detention. In all these cases, the detentions were based on allegations that the individuals constituted a threat to the security of Canada by reason of involvement in terrorist activities. In the course of their detentions, all three appellants challenged, unsuccessfully, the constitutionality of the IRPA ’s certificate scheme and detention review process. III. Issues", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-7", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 11", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellants argue that the IRPA ’s certificate scheme under which their detentions were ordered is unconstitutional. They argue that it violates five provisions of the Charter : the s. 7 guarantee of life, liberty and security of the person; the s. 9 guarantee against arbitrary detention; the s. 10(c) guarantee of a prompt review of detention; the s. 12 guarantee against cruel and unusual treatment; and the s. 15 guarantee of equal protection and equal benefit of the law. They also allege violations of unwritten constitutional principles. I discuss these claims under the following headings: A. Does the procedure under the IRPA for determining the reasonableness of the certificate infringe s. 7 of the Charter , and if so, is the infringement justified under s. 1 of the Charter ? B. Does the detention of permanent residents or foreign nationals under the IRPA infringe ss. 7 , 9 , 10( c ) or 12 of the Charter , and if so, are the infringements justified under s. 1 of the Charter ? C. Do the certificate and detention review procedures discriminate between citizens and non-citizens, contrary to s. 15 of the Charter , and if so, is the discrimination justified under s. 1 of the Charter ? D. Are the IRPA certificate provisions inconsistent with the constitutional principle of the rule of law? A. Does the Procedure Under the IRPA for Determining the Reasonableness of the Certificate Infringe Section 7 of the Charter , and if so, Is the Infringement Justified Under Section 1 of the Charter ? 1. Is Section 7 of the Charter Engaged?", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-8", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 12–13", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 7 of the Charter guarantees the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. This requires a claimant to prove two matters: first, that there has been or could be a deprivation of the right to life, liberty and security of the person, and second, that the deprivation was not or would not be in accordance with the principles of fundamental justice. If the claimant succeeds, the government bears the burden of justifying the deprivation under s. 1, which provides that the rights guaranteed by the Charter are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.\n\nThe provisions at issue, found at Division 9 of Part 1 of the IRPA , clearly deprive detainees such as the appellants of their liberty. The person named in a certificate can face detention pending the outcome of the proceedings. In the case of a foreign national, this detention is automatic and lasts at least until 120 days after the certificate is deemed reasonable. For both foreign nationals and permanent residents, the period of detention can be, and frequently is, several years. Indeed, Mr. Almrei remains in detention and does not know when, if ever, he will be released.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-9", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 14–15", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The detainee’s security may be further affected in various ways. The certificate process may lead to removal from Canada, to a place where his or her life or freedom would be threatened: see e.g. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 207, per Wilson J. A certificate may bring with it the accusation that one is a terrorist, which could cause irreparable harm to the individual, particularly if he or she is eventually deported to his or her home country. Finally, a person who is determined to be inadmissible on grounds of security loses the protection of s. 115(1) of the IRPA , which means that under s. 115(2), he or she can be deported to torture if the Minister is of the opinion that the person is a danger to the security of Canada.\n\nIn Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, this Court stated, at para. 76, that “barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter .” More recently, the Federal Court has ruled that another certificate detainee is at risk of torture if deported, and that there were no exceptional circumstances justifying such a deportation: Jaballah (Re) (2006), 148 C.R.R. (2d) 1, 2006 FC 1230. The appellants claim that they would be at risk of torture if deported to their countries of origin. But in each of their cases, this remains to be proven as part of an application for protection under the provisions of Part 2 of the IRPA . The issue of deportation to torture is consequently not before us here.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-10", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 16–17", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The individual interests at stake suggest that s. 7 of the Charter , the purpose of which is to protect the life, liberty and security of the person, is engaged, and this leads directly to the question whether the IRPA ’s impingement on these interests conforms to the principles of fundamental justice. The government argues, relying on Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, 2005 SCC 51, that s. 7 does not apply because this is an immigration matter. The comment from that case on which the government relies was made in response to a claim that to deport a non-citizen violates s. 7 of the Charter . In considering this claim, the Court, per McLachlin C.J., noted, at para. 46, citing Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733, that “[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada”. The Court added: “Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7” (Medovarski, at para. 46 (emphasis added)).\n\nMedovarski thus does not stand for the proposition that proceedings related to deportation in the immigration context are immune from s. 7 scrutiny. While the deportation of a non-citizen in the immigration context may not in itself engage s. 7 of the Charter , some features associated with deportation, such as detention in the course of the certificate process or the prospect of deportation to torture, may do so.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-11", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 18–19", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "In determining whether s. 7 applies, we must look at the interests at stake rather than the legal label attached to the impugned legislation. As Professor Hamish Stewart writes: Many of the principles of fundamental justice were developed in criminal cases, but their application is not restricted to criminal cases: they apply whenever one of the three protected interests is engaged. Put another way, the principles of fundamental justice apply in criminal proceedings, not because they are criminal proceedings, but because the liberty interest is always engaged in criminal proceedings. [Emphasis in original.] (“Is Indefinite Detention of Terrorist Suspects Really Constitutional?” (2005), 54 U.N.B.L.J. 235, at p. 242) I conclude that the appellants’ challenges to the fairness of the process leading to possible deportation and the loss of liberty associated with detention raise important issues of liberty and security, and that s. 7 of the Charter is engaged. 2. How Do Security Considerations Affect the Section 7 Analysis?\n\nSection 7 of the Charter requires that laws that interfere with life, liberty and security of the person conform to the principles of fundamental justice — the basic principles that underlie our notions of justice and fair process. These principles include a guarantee of procedural fairness, having regard to the circumstances and consequences of the intrusion on life, liberty or security: Suresh, at para. 113.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-12", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 20–21", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake: United States of America v. Ferras, [2006] 2 S.C.R. 77, 2006 SCC 33, at para. 14; R. v. Rodgers, [2006] 1 S.C.R. 554, 2006 SCC 15, at para. 47; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at pp. 656-57. The procedures required to meet the demands of fundamental justice depend on the context (see Rodgers; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361; Chiarelli, at pp. 743-44; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41, at paras. 20-21). Societal interests may be taken into account in elucidating the applicable principles of fundamental justice: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 98.\n\nUnlike s. 1, s. 7 is not concerned with whether a limit on life, liberty or security of the person is justified, but with whether the limit has been imposed in a way that respects the principles of fundamental justice. Hence, it has been held that s. 7 does not permit “a free‑standing inquiry . . . into whether a particular legislative measure ‘strikes the right balance’ between individual and societal interests in general” (Malmo-Levine, at para. 96). Nor is “achieving the right balance . . . itself an overarching principle of fundamental justice” (ibid.). As the majority in Malmo-Levine noted, to hold otherwise “would entirely collapse the s. 1 inquiry into s. 7” (ibid.). This in turn would relieve the state from its burden of justifying intrusive measures, and require the Charter complainant to show that the measures are not justified.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-13", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 22–24", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The question at the s. 7 stage is whether the principles of fundamental justice relevant to the case have been observed in substance, having regard to the context and the seriousness of the violation. The issue is whether the process is fundamentally unfair to the affected person. If so, the deprivation of life, liberty or security of the person simply does not conform to the requirements of s. 7. The inquiry then shifts to s. 1 of the Charter , at which point the government has an opportunity to establish that the flawed process is nevertheless justified having regard, notably, to the public interest.\n\nIt follows that while administrative constraints associated with the context of national security may inform the analysis on whether a particular process is fundamentally unfair, security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the s. 7 stage of the analysis. If the context makes it impossible to adhere to the principles of fundamental justice in their usual form, adequate substitutes may be found. But the principles must be respected to pass the hurdle of s. 7. That is the bottom line.\n\nIn the instant case, the context is the detention, incidental to their removal or an attempt to remove them from the country, of permanent residents and foreign nationals who the ministers conclude pose a threat to national security. This context may impose certain administrative constraints that may be properly considered at the s. 7 stage. Full disclosure of the information relied on may not be possible. The executive branch of government may be required to act quickly, without recourse, at least in the first instance, to the judicial procedures normally required for the deprivation of liberty or security of the person.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-14", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 25", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the same time, it is a context that may have important, indeed chilling, consequences for the detainee. The seriousness of the individual interests at stake forms part of the contextual analysis. As this Court stated in Suresh, “[t]he greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter ” (para. 118). Thus, “factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts”: Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1077, per Iacobucci J.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-15", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 26", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The potential consequences of deportation combined with allegations of terrorism have been under a harsh spotlight due to the recent report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Mr. Arar, a Canadian citizen born in Syria, was detained by American officials and deported to Syria. The report concludes that it is “very likely that, in making the decisions to detain and remove Mr. Arar to Syria, the U.S. authorities relied on information about Mr. Arar provided by the RCMP”, including unfounded suspicions linking Mr. Arar to terrorist groups: Report of the Events Relating to Maher Arar: Analysis and Recommendations (2006) (“Arar Inquiry”), at p. 30. In Syria, Mr. Arar was tortured and detained under inhumane conditions for over 11 months. In his report, Commissioner O’Connor recommends enhanced review and accountability mechanisms for agencies dealing with national security, including not only the Royal Canadian Mounted Police, but also Citizenship and Immigration Canada and the Canada Border Services Agency. He notes that these immigration-related institutions can have an important impact on individual rights but that there is a lack of transparency surrounding their activities because their activities often involve sensitive national security information that cannot be disclosed to the public: A New Review Mechanism for the RCMP’s National Security Activities (2006), at pp. 562-65. Moreover, the sensitive nature of security information means that investigations lead to fewer prosecutions. This, in turn, restricts the ability of courts to guarantee individual rights: “Unless charges are laid, . . .", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-16", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 26–28", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "the choice of investigative targets, methods of information collection and exchange, and means of investigation generally will not be subject to judicial scrutiny, media coverage or public debate” (p. 439).\n\nThe procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of s. 7. The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of s. 7 of the Charter . The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy s. 7, meaningful and substantial protection there must be. 3. Relevant Principles of Fundamental Justice\n\nThe overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46. “It is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law, which must involve a meaningful judicial process”: Ferras, at para. 19. This principle emerged in the era of feudal monarchy, in the form of the right to be brought before a judge on a motion of habeas corpus. It remains as fundamental to our modern conception of liberty as it was in the days of King John.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-17", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 29–31", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right to answer that case. Precisely how these requirements are met will vary with the context. But for s. 7 to be satisfied, each of them must be met in substance.\n\nThe IRPA process includes a hearing. The process consists of two phases, one executive and one judicial. There is no hearing at the executive phase that results in issuance of the certificate. However, this is followed by a review before a judge, where the named person is afforded a hearing. Thus, the first requirement, that of a hearing, is met.\n\nQuestions arise, however, on the other requirements, namely: that the judge be independent and impartial; that the judge make a judicial decision based on the facts and the law; and finally, that the named person be afforded an opportunity to meet the case put against him or her by being informed of that case and being allowed to question or counter it. I conclude that the IRPA scheme meets the first requirement of independence and impartiality, but fails to satisfy the second and third requirements, which are interrelated here. 4. Is the Judge Independent and Impartial?", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-18", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 32–34", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although the scope of the required hearing can vary according to context (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817), a hearing must include “[a]n independent judicial phase and an impartial judge” (Ferras, at para. 25). This requirement is also consistent with the unwritten constitutional principle of judicial independence: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3. It has also been called “the cornerstone of the common law duty of procedural fairness” (Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42 (“Re Bagri”), at para. 81), and is necessary in order to ensure judicial impartiality: R. v. Lippé, [1991] 2 S.C.R. 114, at p. 139. It is not enough that the judge in fact be independent and impartial; fundamental justice requires that the judge also appear to be independent and impartial. This flows from the fact that judicial independence has two facets: actual independence and perceived independence (Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 689).\n\nThe IRPA scheme provides for the certificate issued by the ministers to be reviewed by a “designated judge”, a judge of the Federal Court of Canada. The question here is whether, from an institutional perspective, the role assigned to designated judges under the IRPA leads to a perception that independence and impartiality are compromised.\n\nThe designated judge has been aptly described as the “cornerstone of the procedure established by Parliament” in the IRPA (Charkaoui (Re), [2004] 3 F.C.R. 32, 2003 FC 1419, at para. 120, per Noël J.). The judge is the sole avenue of review for the named person and the only person capable of providing the essential judicial component of the process.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-19", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 35–36", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "When reviewing the certificate, the judge sees all the material relied on by the government. But if the government claims confidentiality for certain material, the judge cannot share this material with the named person. The judge must make his or her decision without hearing any objections the named person might be able to make, were he or she granted access to the whole of the record. Part of the hearing may be held in camera, with only the judge and the government lawyers in the room. The named person is not there. His or her lawyer is not there. There is no one to speak for the person or to test the evidence put against him or her.\n\nThese circumstances may give rise to a perception that the designated judge under the IRPA may not be entirely independent and impartial as between the state and the person named in the certificate. Speaking at a conference in March 2002, Hugessen J. of the Federal Court expressed unease with the role assigned to designated judges under the IRPA : We do not like this process of having to sit alone hearing only one party, and looking at the materials produced by only one party . . . . If there is one thing that I learned in my practice at the Bar, and I have managed to retain it through all these years, it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition, judges do not do that. . . . [W]e do not have any knowledge except what is given to us and when it is only given to us by one party we are not well suited to test the materials that are put before us. [Emphasis added.] (J. K. Hugessen, “Watching the Watchers: Democratic Oversight”, in D. Daubney et al., eds., Terrorism, Law and Democracy: How is Canada changing following September 11? (2002), 381, at p. 384)", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-20", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 37–38", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Three related concerns arise with respect to independence and impartiality. First is the concern that the IRPA may be perceived to deprive the judge of his or her independent judicial role and co-opt the judge as an agent of the executive branch of government. Second is the concern that the designated judge functions as an investigative officer rather than a judge. Third is the concern that the judge, whose role includes compensating for the fact that the named person may not have access to material and may not be present at the hearing, will become associated with this person’s case.\n\nThe first concern is linked to the degree of deference that the judge accords to the ministers’ conclusion that the facts supported the issuance of a certificate and the detention of the named person. Judges working under the process have eschewed an overly deferential approach, insisting instead on a searching examination of the reasonableness of the certificate on the material placed before them: Jaballah, Re (2004), 247 F.T.R. 68, 2004 FC 299; Charkaoui (Re), [2005] 2 F.C.R. 299, 2004 FCA 421, at para. 74. They are correct to do so, having regard to the language of the provision, the history of its adoption, and the role of the designated judge.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-21", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 39", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, an active role for the designated judge is justified by the language of the IRPA and the standards of review it establishes. The statute requires the designated judge to determine whether the certificate is “reasonable”, and emphasizes factual scrutiny by instructing the judge to do so “on the basis of the information and evidence available” (s. 80(1)). This language, as well as the accompanying factual, legal and administrative context, leads to the conclusion that the designated judge must review the certificate on a standard of reasonableness. Likewise, since the ministers’ decision to detain a permanent resident is based on “reasonable grounds to believe” (s. 82(1)), “[i]t is logical to assume that in subsequent reviews by a designated judge, the same standard will be used” (Charkaoui (Re), [2005] 3 F.C.R. 389, 2005 FC 248, at para. 30). The “reasonable grounds to believe” standard requires the judge to consider whether “there is an objective basis . . . which is based on compelling and credible information”: Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, at para. 114. “Reasonable grounds to believe” is the appropriate standard for judges to apply when reviewing a continuation of detention under the certificate provisions of the IRPA . The IRPA therefore does not ask the designated judge to be deferential, but, rather, asks him or her to engage in a searching review.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-22", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 40–42", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "This interpretation of the IRPA is confirmed by statements made in the course of the adoption of the scheme. While it was considering the IRPA , the Standing Committee on Citizenship and Immigration was informed that the role of the designated judge would be to avoid treatment that is unfair, arbitrary, or in violation of due process (Transcript of the Standing Committee on Citizenship and Immigration, Thursday, April 26, 2001 (online)).\n\nFinally, the fact that the designated judge may have access to more information than the ministers did in making their initial decision to issue a certificate and detain suggests that the judge possesses relative expertise on the matters at issue and is no mere rubber stamp: Charkaoui (Re), 2003 FC 1419, at para. 125.\n\nI conclude that a non-deferential role for the designated judge goes some distance toward alleviating the first concern, that the judge will be perceived to be in the camp of the government.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-23", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 43", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The second concern is that the judge may be seen to function more as an investigator than as an independent and impartial adjudicator. The law is clear that the principles of fundamental justice are breached if a judge is reduced to an executive, investigative function. At the same time, the mere fact that a judge is required to assist in an investigative activity does not deprive the judge of the requisite independence. In Re Bagri, the Court considered whether a provision of the Criminal Code , R.S.C. 1985, c. C-46 , that provides for a judge to assist the state in gathering evidence in the investigation of a terrorist offence violated s. 7 or s. 11( d ) of the Charter . Under s. 83.28, a judge can order a person to attend before the judge (or before another judge) to give information on a suspected past or future terrorism offence, and supervise the taking of the person’s statement. The hearing can take place in camera, and its very existence can be kept secret. Critics of s. 83.28 argued that it co-opts the presiding judge into performing an investigative rather than an adjudicative role. The majority held that the provision violates neither s. 7 of the Charter nor the unwritten principle of judicial independence. It stressed that s. 83.28 gives judges broad discretion to vary the terms of the order made under it and to ensure that constitutional and common law values are respected. It also noted that judges routinely participate in investigations in the criminal context and that their role in these situations is to “act as a check against state excess” (para. 86), and emphasized that in the context of investigative hearings the judge was not asked to question the individual or challenge the evidence, but merely to mediate and ensure the fairness of the proceeding.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-24", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 43–44", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, it warned that “once legislation invokes the aid of the judiciary, we must remain vigilant to ensure that the integrity of its role is not compromised or diluted” (para. 87).\n\nThe IRPA provisions before the Court, like s. 83.28 of the Criminal Code , preserve the essential elements of the judicial role. It is even clearer in this case than in Re Bagri that the process established by the legislation at issue is not purely investigative; the judge’s task of determining whether the certificate is “reasonable” seems on its face closer to adjudicative review of an executive act than to investigation. On the other hand, the provisions seem to require the judge to actively vet the evidence, an activity that the Court viewed as suspect in Re Bagri. Noël J., the designated judge for Mr. Charkaoui’s case, stated: Designated judges preside over hearings and hear the Minister’s witnesses. They examine witnesses themselves as the need arises. They examine the documents carefully to determine which information is related to security and which information is not. In order to do so, they examine, among other things, the sources of the information, the way in which it was obtained, the reliability of the sources and the method used, and whether it is possible to corroborate the information by other means. (2003 FC 1419, at para. 101) These comments suggest that while the designated judge may be more involved in vetting and skeptically scrutinizing the evidence than would be the case in a normal judicial hearing, the judge is nevertheless performing the adjudicative function of evaluation, rather than the executive function of investigation. However, care must be taken to avoid allowing the investigative aspect of the process to overwhelm its adjudicative aspect.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-25", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 45–47", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The third concern is that the judge’s role as sole protector of the named person’s interest may associate the judge, in fact or perception, with that interest. A judge who is obliged to take on a “defence” role in the absence of counsel may unconsciously become associated with that camp: R. v. Taubler (1987), 20 O.A.C. 64, at p. 71; R. v. Turlon (1989), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 191. This concern must be balanced against the opposite concern that the judge may appear to be part of the government scheme and hence in the government’s camp. The critical consideration, however, is that the IRPA permits — indeed requires — the judge to conduct the review in an independent and judicial fashion. Provided the judge does so, the scheme cannot be condemned on the ground that he or she is, in fact or perception, in the named person’s camp.\n\nI conclude that, on its face, the IRPA process is designed to preserve the independence and impartiality of the designated judge, as required by s. 7. Properly followed by judges committed to a searching review, it cannot be said to compromise the perceived independence and impartiality of the designated judge.\n\nI note that this conclusion conclusively rebuts the appellant Charkaoui’s contention that the IRPA breaches the unwritten constitutional principle of judicial independence affirmed in Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice), [2005] 2 S.C.R. 286, 2005 SCC 44. 5. Is the Decision Based on the Facts and the Law?", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-26", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 48–49", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "To comply with s. 7 of the Charter , the magistrate must make a decision based on the facts and the law. In the extradition context, the principles of fundamental justice have been held to require, “at a minimum, a meaningful judicial assessment of the case on the basis of the evidence and the law. A judge considers the respective rights of the litigants or parties and makes findings of fact on the basis of evidence and applies the law to those findings. Both facts and law must be considered for a true adjudication. Since Bonham’s Case [(1610), 8 Co. Rep. 113b, 77 E.R. 646], the essence of a judicial hearing has been the treatment of facts revealed by the evidence in consideration of the substantive rights of the parties as set down by law” (Ferras, at para. 25). The individual and societal interests at stake in the certificate of inadmissibility context suggest similar requirements.\n\nThe IRPA process at issue seeks to meet this requirement by placing material before the judge for evaluation. As a practical matter, most if not all of the material that the judge considers is produced by the government and can be vetted for reliability and sufficiency only by the judge. The normal standards used to ensure the reliability of evidence in court do not apply: s. 78(j). The named person may be shown little or none of the material relied on by the ministers and the judge, and may thus not be in a position to know or challenge the case against him or her. It follows that the judge’s decision, while based on the evidence before him or her, may not be based on all of the evidence available.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-27", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 50", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "There are two types of judicial systems, and they ensure that the full case is placed before the judge in two different ways. In inquisitorial systems, as in Continental Europe, the judge takes charge of the gathering of evidence in an independent and impartial way. By contrast, an adversarial system, which is the norm in Canada, relies on the parties — who are entitled to disclosure of the case to meet, and to full participation in open proceedings — to produce the relevant evidence. The designated judge under the IRPA does not possess the full and independent powers to gather evidence that exist in the inquisitorial process. At the same time, the named person is not given the disclosure and the right to participate in the proceedings that characterize the adversarial process. The result is a concern that the designated judge, despite his or her best efforts to get all the relevant evidence, may be obliged — perhaps unknowingly — to make the required decision based on only part of the relevant evidence. As Hugessen J. has noted, the adversarial system provides “the real warranty that the outcome of what we do is going to be fair and just” (p. 385); without it, the judge may feel “a little bit like a fig leaf” (Proceedings of the March 2002 Conference, at p. 386).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-28", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 51–52", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Judges of the Federal Court have worked assiduously to overcome the difficulties inherent in the role the IRPA has assigned to them. To their credit, they have adopted a pseudo-inquisitorial role and sought to seriously test the protected documentation and information. But the role remains pseudo-inquisitorial. The judge is not afforded the power to independently investigate all relevant facts that true inquisitorial judges enjoy. At the same time, since the named person is not given a full picture of the case to meet, the judge cannot rely on the parties to present missing evidence. The result is that, at the end of the day, one cannot be sure that the judge has been exposed to the whole factual picture.\n\nSimilar concerns arise with respect to the requirement that the decision be based on the law. Without knowledge of the information put against him or her, the named person may not be in a position to raise legal objections relating to the evidence, or to develop legal arguments based on the evidence. The named person is, to be sure, permitted to make legal representations. But without disclosure and full participation throughout the process, he or she may not be in a position to put forward a full legal argument. 6. Is the “Case to Meet” Principle Satisfied?", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-29", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 53–54", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case. This right is well established in immigration law. The question is whether the procedures “provide an adequate opportunity for [an affected person] to state his case and know the case he has to meet” (Singh, at p. 213). Similarly, in Suresh, the Court held that a person facing deportation to torture under s. 53(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2, must “[n]ot only . . . be informed of the case to be met . . . [but] also be given an opportunity to challenge the information of the Minister where issues as to its validity arise” (para. 123).\n\nUnder the IRPA’s certificate scheme, the named person may be deprived of access to some or all of the information put against him or her, which would deny the person the ability to know the case to meet. Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations. This problem is serious in itself. It also underlies the concerns, discussed above, about the independence and impartiality of the designated judge, and the ability of the judge to make a decision based on the facts and law.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-30", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 55–56", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Confidentiality is a constant preoccupation of the certificate scheme. The judge “shall ensure” the confidentiality of the information on which the certificate is based and of any other evidence if, in the opinion of the judge, disclosure would be injurious to national security or to the safety of any person: s. 78(b). At the request of either minister “at any time during the proceedings”, the judge “shall hear” information or evidence in the absence of the named person and his or her counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person: s. 78(e). The judge “shall provide” the named person with a summary of information that enables him or her to be reasonably informed of the circumstances giving rise to the certificate, but the summary cannot include anything that would, in the opinion of the judge, be injurious to national security or to the safety of any person: s. 78(h). Ultimately, the judge may have to consider information that is not included in the summary: s. 78(g). In the result, the judge may be required to decide the case, wholly or in part, on the basis of information that the named person and his or her counsel never see. The named person may know nothing of the case to meet, and although technically afforded an opportunity to be heard, may be left in a position of having no idea as to what needs to be said.\n\nThe same concerns arise with respect to the detention review process under ss. 83 and 84 of the IRPA . Section 78 applies to detention reviews under s. 83, and it has been found to apply to detention reviews under s. 84(2): Almrei v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 142, 2005 FCA 54, at paras. 71-72.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-31", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 57", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The right to know the case to be met is not absolute. Canadian statutes sometimes provide for ex parte or in camera hearings, in which judges must decide important issues after hearing from only one side. In Rodgers, the majority of this Court declined to recognize notice and participation as invariable constitutional norms, emphasizing a context-sensitive approach to procedural fairness. And in Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31, the Court, per Rothstein J., held that while “[h]earing from both sides of an issue is a principle to be departed from only in exceptional circumstances”, in the ordinary case, a judge would be “well equipped . . . to determine whether a record is subject to [solicitor-client] privilege” without the assistance of counsel on both sides (para. 21).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-32", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 58", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "More particularly, the Court has repeatedly recognized that national security considerations can limit the extent of disclosure of information to the affected individual. In Chiarelli, this Court found that the Security Intelligence Review Committee could, in investigating certificates under the former Immigration Act, 1976, S.C. 1976-77, c. 52 (later R.S.C. 1985, c. I-2), refuse to disclose details of investigation techniques and police sources. The context for elucidating the principles of fundamental justice in that case included the state’s “interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources” (p. 744). In Suresh, this Court held that a refugee facing the possibility of deportation to torture was entitled to disclosure of all the information on which the Minister was basing his or her decision, “[s]ubject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents” (para. 122). And, in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75, the Court upheld the section of the Privacy Act , R.S.C. 1985, c. P-21 , that mandates in camera and ex parte proceedings where the government claims an exemption from disclosure on grounds of national security or maintenance of foreign confidences. The Court made clear that these societal concerns formed part of the relevant context for determining the scope of the applicable principles of fundamental justice (paras. 38-44).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-33", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 59–60", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "In some contexts, substitutes for full disclosure may permit compliance with s. 7 of the Charter . For example, in Rodgers, the majority of the Court upheld the constitutionality of ex parte hearings for applications under s. 487.055 of the Criminal Code to take DNA samples from listed multiple offenders, on the ground that the protections Parliament had put in place were adequate (paras. 51-52). Similarly, in Chiarelli, the Court upheld the lack of disclosure on the basis that the information disclosed by way of summary and the opportunity to call witnesses and cross-examine RCMP witnesses who testified in camera satisfied the requirements of fundamental justice. And in Ruby, the Court held that the substitute measures provided by Parliament satisfied the constitutional requirements of procedural fairness (para. 42). Arbour J. stated: “In such circumstances, fairness is met through other procedural safeguards such as subsequent disclosure, judicial review and rights of appeal” (para. 40).\n\nWhere limited disclosure or ex parte hearings have been found to satisfy the principles of fundamental justice, the intrusion on liberty and security has typically been less serious than that effected by the IRPA : Rodgers, at para. 53. It is one thing to deprive a person of full information where fingerprinting is at stake, and quite another to deny him or her information where the consequences are removal from the country or indefinite detention. Moreover, even in the less intrusive situations, courts have insisted that disclosure be as specific and complete as possible.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-34", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 61–62", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy s. 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case. Yet the imperative of the protection of society may preclude this. Information may be obtained from other countries or from informers on condition that it not be disclosed. Or it may simply be so critical that it cannot be disclosed without risking public security. This is a reality of our modern world. If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. Neither is the case here.\n\nThe only protection the IRPA accords the named person is a review by a designated judge to determine whether the certificate is reasonable. The ministers argue that this is adequate in that it maintains a “delicate balance” between the right to a fair hearing and the need to protect confidential security intelligence information. The appellants, on the other hand, argue that the judge’s efforts, however conscientious, cannot provide an effective substitute for informed participation.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-35", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 63", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "I agree with the appellants. The issue at the s. 7 stage, as discussed above, is not whether the government has struck the right balance between the need for security and individual liberties; that is the issue at the stage of s. 1 justification of an established limitation on a Charter right. The question at the s. 7 stage is whether the basic requirements of procedural justice have been met, either in the usual way or in an alternative fashion appropriate to the context, having regard to the government’s objective and the interests of the person affected. The fairness of the IRPA procedure rests entirely on the shoulders of the designated judge. Those shoulders cannot by themselves bear the heavy burden of assuring, in fact and appearance, that the decision on the reasonableness of the certificate is impartial, is based on a full view of the facts and law, and reflects the named person’s knowledge of the case to meet. The judge, working under the constraints imposed by the IRPA , simply cannot fill the vacuum left by the removal of the traditional guarantees of a fair hearing. The judge sees only what the ministers put before him or her. The judge, knowing nothing else about the case, is not in a position to identify errors, find omissions or assess the credibility and truthfulness of the information in the way the named person would be. Although the judge may ask questions of the named person when the hearing is reopened, the judge is prevented from asking questions that might disclose the protected information. Likewise, since the named person does not know what has been put against him or her, he or she does not know what the designated judge needs to hear.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-36", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 63–64", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "If the judge cannot provide the named person with a summary of the information that is sufficient to enable the person to know the case to meet, then the judge cannot be satisfied that the information before him or her is sufficient or reliable. Despite the judge’s best efforts to question the government’s witnesses and scrutinize the documentary evidence, he or she is placed in the situation of asking questions and ultimately deciding the issues on the basis of incomplete and potentially unreliable information.\n\nThe judge is not helpless; he or she can note contradictions between documents, insist that there be at least some evidence on the critical points, and make limited inferences on the value and credibility of the information from its source. Nevertheless, the judge’s activity on behalf of the named person is confined to what is presented by the ministers. The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know? 7. Conclusion on Section 7", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-37", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 65", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the IRPA, an attempt has been made to meet the requirements of fundamental justice essentially through one mechanism — the designated judge charged with reviewing the certificate of inadmissibility and the detention. To Parliament’s credit, a sincere attempt has been made to give the designated judge the powers necessary to discharge the role in an independent manner, based on the facts and the law. Yet, the secrecy required by the scheme denies the named person the opportunity to know the case put against him or her, and hence to challenge the government’s case. This, in turn, undermines the judge’s ability to come to a decision based on all the relevant facts and law. Despite the best efforts of judges of the Federal Court to breathe judicial life into the IRPA procedure, it fails to assure the fair hearing that s. 7 of the Charter requires before the state deprives a person of life, liberty or security of the person. I therefore conclude that the IRPA ’s procedure for determining whether a certificate is reasonable does not conform to the principles of fundamental justice as embodied in s. 7 of the Charter . The same conclusion necessarily applies to the detention review procedures under ss. 83 and 84 of the IRPA . 8. Is the Limit Justified Under Section 1 of the Charter ?", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-38", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 66–67", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Charter does not guarantee rights absolutely. The state is permitted to limit rights — including the s. 7 guarantee of life, liberty and security — if it can establish that the limits are demonstrably justifiable in a free and democratic society. This said, violations of s. 7 are not easily saved by s. 1. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, Lamer J. (as he then was) stated, for the majority: Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like. [p. 518] The rights protected by s. 7 — life, liberty, and security of the person — are basic to our conception of a free and democratic society, and hence are not easily overridden by competing social interests. It follows that violations of the principles of fundamental justice, specifically the right to a fair hearing, are difficult to justify under s. 1: G. (J.). Nevertheless, the task may not be impossible, particularly in extraordinary circumstances where concerns are grave and the challenges complex.\n\nThe test to be applied in determining whether a violation can be justified under s. 1, known as the Oakes test (R. v. Oakes, [1986] 1 S.C.R. 103), requires a pressing and substantial objective and proportional means. A finding of proportionality requires: (a) means rationally connected to the objective; (b) minimal impairment of rights; and (c) proportionality between the effects of the infringement and the importance of the objective.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-39", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 68", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The protection of Canada’s national security and related intelligence sources undoubtedly constitutes a pressing and substantial objective. Moreover, the IRPA ’s provisions regarding the non‑disclosure of evidence at certificate hearings are rationally connected to this objective. The facts on this point are undisputed. Canada is a net importer of security information. This information is essential to the security and defence of Canada, and disclosure would adversely affect its flow and quality: see Ruby. This leaves the question whether the means Parliament has chosen, i.e. a certificate procedure leading to detention and deportation of non-citizens on the ground that they pose a threat to Canada’s security, minimally impairs the rights of non‑citizens.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-40", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 69–70", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The realities that confront modern governments faced with the challenge of terrorism are stark. In the interest of security, it may be necessary to detain persons deemed to pose a threat. At the same time, security concerns may preclude disclosure of the evidence on which the detention is based. But these tensions are not new. As we shall see, Canada has already devised processes that go further in preserving s. 7 rights while protecting sensitive information; until recently, one of these solutions was applicable in the security certificate context. Nor are these tensions unique to Canada: in the specific context of anti-terrorism legislation, the United Kingdom uses special counsel to provide a measure of protection to the detained person’s interests, while preserving the confidentiality of information that must be kept secret. These alternatives suggest that the IRPA regime, which places on the judge the entire burden of protecting the person’s interest, does not minimally impair the rights of non-citizens, and hence cannot be saved under s. 1 of the Charter . (a) Less Intrusive Alternatives\n\nThis is not the first time Canada has had to reconcile the demands of national security with the procedural rights guaranteed by the Charter . In a number of legal contexts, Canadian government institutions have found ways to protect sensitive information while treating individuals fairly. In some situations, the solution has involved the use of special counsel, in a manner closely approximating an adversarial process.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-41", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 71", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Security Intelligence Review Committee (“SIRC”) is an independent review body that monitors the activities of the Canadian Security Intelligence Service (“CSIS”). Established in 1984 under the Canadian Security Intelligence Service Act, S.C. 1984, c. 21 (now R.S.C. 1985, c. C-23 ), SIRC is composed of three to five members of the Privy Council who are not currently serving in Parliament. Under the former Immigration Act, SIRC had the power to vet findings of inadmissibility based on alleged threats to national security; a ministerial certificate could not be issued without a SIRC investigation. If the Minister of Employment and Immigration and the Solicitor General were of the opinion that a non-citizen was inadmissible due to involvement in organized crime, espionage, subversion, acts of violence, etc., they were first obliged to make a report to SIRC: Immigration Act, s. 39(2). SIRC would then investigate the grounds for the report, providing the affected person with “a statement summarizing such information available to it as will enable the person to be as fully informed as possible of the circumstances giving rise to the report”: s. 39(6). After completing its investigation, SIRC would send a report to the Governor in Council containing its recommendation as to whether a security certificate should be issued: s. 39(9). A copy of the same report would be provided to the non-citizen: s. 39(10). If the Governor in Council was satisfied that the non-citizen was inadmissible on appropriate grounds, he or she could then direct the Minister of Employment and Immigration to issue a security certificate: s. 40(1).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-42", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 72", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Empowered to develop its own investigative procedures, SIRC established a formal adversarial process, with “a court-like hearing room” and “procedures that mirrored judicial proceedings as much as possible”. The process also included an independent panel of lawyers with security clearances to act as counsel to SIRC (M. Rankin, “The Security Intelligence Review Committee: Reconciling National Security with Procedural Fairness” (1990), 3 C.J.A.L.P. 173, at p. 179).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-43", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 73", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "A SIRC member presiding at a hearing had the discretion to balance national security against procedural fairness in determining how much information could be disclosed to the affected person. The non-citizen and his or her counsel would normally be present in the hearing room, except when sensitive national security evidence was tendered. (The presiding SIRC member would decide whether to exclude the non-citizen during certain testimony.) At such a juncture, independent, security-cleared SIRC counsel would act on behalf of the non-citizen. The SIRC counsel were instructed to cross-examine witnesses for CSIS “with as much vigour as one would expect from the complainant’s counsel” (Rankin, at p. 184; SIRC Annual Report 1988-1989 (1989) (“SIRC Annual Report”), at p. 64). At the end of this ex parte portion of the hearing, the excluded person would be brought back into the room and provided with a summary, which would include “the gist of the evidence, without disclosing the national security information” (SIRC Annual Report, at p. 64). The SIRC counsel would negotiate the contents of the summary with CSIS, under the supervision of the presiding SIRC member (ibid.). The affected person and his or her counsel would then be allowed to ask their own questions, and to cross-examine on the basis of the summary (Rankin, at p. 184).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-44", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 74–75", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the words of Professor Rankin, SIRC’s procedures represented “an attempt to preserve the best features of the adversarial process with its insistence on vigorous cross-examination, but not to run afoul of the requirements of national security” (p. 185). These procedures illustrate how special counsel can provide not only an effective substitute for informed participation, but can also help bolster actual informed participation by the affected person. Since the special counsel had a role in determining how much information would be included in the summary, disclosure was presumably more complete than would otherwise have been the case. Sensitive national security information was still protected, but the executive was required to justify the breadth of this protection.\n\nIn 1988 Parliament added s. 40.1 to the Immigration Act to empower the Minister and the Solicitor General to issue security certificates in respect of foreign nationals. Section 40.1 effectively bypassed the SIRC investigation process where foreign nationals were concerned, instead referring the certificate to a designated judge of the Federal Court for subsequent review. Security certificates in respect of permanent residents remained subject to SIRC scrutiny until 2002, when Parliament repealed the Immigration Act and replaced it with the IRPA .", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-45", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 76", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Certain elements of SIRC process may be inappropriate to the context of terrorism. Where there is a risk of catastrophic acts of violence, it would be foolhardy to require a lengthy review process before a certificate could be issued. But it was not suggested before this Court that SIRC’s special counsel system had not functioned well in connection with the review of certificates under the Immigration Act, nor was any explanation given for why, under the new system for vetting certificates and reviewing detentions, a special counsel process had not been retained.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-46", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 77", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The SIRC process is not the only example of the Canadian legal system striking a better balance between the protection of sensitive information and the procedural rights of individuals. A current example is found in the Canada Evidence Act , R.S.C. 1985, c. C-5 (“CEA ”), which permits the government to object to the disclosure of information on grounds of public interest, in proceedings to which the Act applies: ss. 37 to 39. Under the recent amendments to the CEA set out in the Anti-terrorism Act , S.C. 2001, c. 41 , a participant in a proceeding who is required to disclose or expects to disclose potentially injurious or sensitive information, or who believes that such information might be disclosed, must notify the Attorney General about the potential disclosure, and the Attorney General may then apply to the Federal Court for an order prohibiting the disclosure of the information: ss. 38.01, 38.02, 38.04. The judge enjoys considerable discretion in deciding whether the information should be disclosed. If the judge concludes that disclosure of the information would be injurious to international relations, national defence or national security, but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may order the disclosure of all or part of the information, on such conditions as he or she sees fit. No similar residual discretion exists under the IRPA , which requires judges not to disclose information the disclosure of which would be injurious to national security or to the safety of any person. Moreover, the CEA makes no provision for the use of information that has not been disclosed.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-47", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 77–78", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the CEA does not address the same problems as the IRPA , and hence is of limited assistance here, it illustrates Parliament’s concern under other legislation for striking a sensitive balance between the need for protection of confidential information and the rights of the individual.\n\nCrown and defence counsel in the recent Air India trial (R. v. Malik, [2005] B.C.J. No. 521 (QL), 2005 BCSC 350) were faced with the task of managing security and intelligence information and attempting to protect procedural fairness. The Crown was in possession of the fruits of a 17-year-long investigation into the terrorist bombing of a passenger aircraft and a related explosion in Narita, Japan. It withheld material on the basis of relevance, national security privilege and litigation privilege. Crown and defence counsel came to an agreement under which defence counsel obtained consents from their clients to conduct a preliminary review of the withheld material, on written undertakings not to disclose the material to anyone, including the client. Disclosure in a specific trial, to a select group of counsel on undertakings, may not provide a working model for general deportation legislation that must deal with a wide variety of counsel in a host of cases. Nevertheless, the procedures adopted in the Air India trial suggest that a search should be made for a less intrusive solution than the one found in the IRPA .", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-48", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 79–80", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Arar Inquiry provides another example of the use of special counsel in Canada. The Commission had to examine confidential information related to the investigation of terrorism plots while preserving Mr. Arar’s and the public’s interest in disclosure. The Commission was governed by the CEA . To help assess claims for confidentiality, the Commissioner was assisted by independent security-cleared legal counsel with a background in security and intelligence, whose role was to act as amicus curiae on confidentiality applications. The scheme’s aim was to ensure that only information that was rightly subject to national security confidentiality was kept from public view. There is no indication that these procedures increased the risk of disclosure of protected information.\n\nFinally, I note the special advocate system employed by the Special Immigration Appeals Commission (“SIAC”) in the United Kingdom. SIAC and the special advocate system were created in response to Chahal v. United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1831, in which the European Court of Human Rights had held that the procedure then in place was inadequate. The court in Chahal commented favourably on the idea of security‑cleared counsel instructed by the court, identifying it as being Canadian in origin (perhaps referring to the procedure developed by SIRC).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-49", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 81", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The U.K.’s special advocate system resembles the Canadian SIRC model. Section 6(1) of the Special Immigration Appeals Commission Act 1997 (U.K.), 1997, c. 68, states that the special advocate is appointed to “represent the interests of an appellant” in any proceedings before SIAC from which the appellant and his or her legal representatives are excluded. Section 6(4), however, specifies that the special advocate “shall not be responsible to the person whose interests he is appointed to represent”. Rule 35 of the Special Immigration Appeals Commission (Procedure) Rules 2003, S.I. 2003/1034, sets out the special advocate’s three main functions: (1) to make submissions to the Commission at any hearings from which the appellant and the appellant’s representatives are excluded; (2) to cross-examine witnesses at any such hearings; and (3) to make written submissions to the Commission. After seeing the protected information, the special advocate may not communicate with the appellant or the appellant’s representative without authorization from the Commission: rule 36. If the special advocate requests such authorization, the Commission gives the Secretary of State an opportunity to object to the proposed communication before deciding whether to authorize it: rule 38.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-50", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 82–83", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The use of special advocates has received widespread support in Canadian academic commentary. Professor Roach, for example, criticizes the Court of Appeal’s conclusion in Charkaoui (Re), 2004 FCA 421, that such a measure is not constitutionally required: In my view, this approach was in error because in camera and ex parte hearings offend basic notions of a fair hearing and special advocates constitute one example of an approach that is a more proportionate response to reconciling the need to keep some information secret and the need to ensure as much fairness and adversarial challenge as possible. [Emphasis added.] (K. Roach, “Ten Ways to Improve Canadian Anti-Terrorism Law” (2006), 51 Crim. L.Q. 102, at p. 120)\n\nThis said, the U.K.’s special advocate system has also been criticized for not going far enough. In April 2005, the House of Commons Constitutional Affairs Committee published a report on the operation of SIAC and the use of special advocates (The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates). The Committee listed three important disadvantages faced by special advocates: (1) once they have seen the confidential material, they cannot, subject to narrow exceptions, take instructions from the appellant or the appellant’s counsel; (2) they lack the resources of an ordinary legal team, for the purpose of conducting in secret a full defence; and (3) they have no power to call witnesses (para. 52).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-51", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 84–86", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Despite these difficulties, SIAC itself has commented favourably on the assistance provided by special advocates, stating that as a result of the “rigorous cross-examination” of the government’s evidence by the special advocate, it was satisfied that the government’s assertions were unsupported by the evidence (M. v. Secretary of State for the Home Department, [2004] UKSIAC 17/2002 (BAILII), March 8, 2004, at para. 10). The England and Wales Court of Appeal upheld SIAC’s decision: [2004] 2 All E.R. 863, [2004] EWCA Civ 324. (b) The IRPA Scheme Does Not Minimally Impair the Named Person’s Rights\n\nParliament is not required to use the perfect, or least restrictive, alternative to achieve its objective: R. v. Chaulk, [1990] 3 S.C.R. 1303. However, bearing in mind the deference that is owed to Parliament in its legislative choices, the alternatives discussed demonstrate that the IRPA does not minimally impair the named person’s rights.\n\nUnder the IRPA, the government effectively decides what can be disclosed to the named person. Not only is the named person not shown the information and not permitted to participate in proceedings involving it, but no one but the judge may look at the information with a view to protecting the named person’s interests. Why the drafters of the legislation did not provide for special counsel to objectively review the material with a view to protecting the named person’s interest, as was formerly done for the review of security certificates by SIRC and is presently done in the United Kingdom, has not been explained. The special counsel system may not be perfect from the named person’s perspective, given that special counsel cannot reveal confidential material. But, without compromising security, it better protects the named person’s s. 7 interests.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-52", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 87–88", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "I conclude that the IRPA ’s procedures for determining whether a certificate is reasonable and for detention review cannot be justified as minimal impairments of the individual’s right to a judicial determination on the facts and the law and right to know and meet the case. Mechanisms developed in Canada and abroad illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA . Precisely what more should be done is a matter for Parliament to decide. But it is clear that more must be done to meet the requirements of a free and democratic society. B. Does the Detention of Permanent Residents or Foreign Nationals Under the IRPA Infringe Sections 7, 9, 10(c) or 12 of the Charter , and if so, Are the Infringements Justified Under Section 1 of the Charter ? 1. Time Constraints on Review for Foreign Nationals: Breach of Section 9 or Section 10(c)?\n\nSection 9 of the Charter guarantees freedom from arbitrary detention. This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law. The appellant Mr. Almrei argues that detention under the IRPA is arbitrary with respect to foreign nationals, first because it permits their detention without warrant and without regard to their personal circumstances, and second because it prevents review until 120 days after the certificate is confirmed. In both respects, foreign nationals are treated differently than permanent residents.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-53", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 89", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "I would reject Mr. Almrei’s argument that automatic detention of foreign nationals is arbitrary because it is effected without regard to the personal circumstances of the detainee. Detention is not arbitrary where there are “standards that are rationally related to the purpose of the power of detention”: P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 46-5. The triggering event for the detention of a foreign national is the signing of a certificate stating that the foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. The security ground is based on the danger posed by the named person, and therefore provides a rational foundation for the detention. R. v. Swain, [1991] 1 S.C.R. 933, in which this Court struck down a provision of the Criminal Code requiring that an accused acquitted of an offence on the basis of an insanity defence be detained automatically without a hearing, is distinguishable. The Court held that it was arbitrary to require the detention of persons acquitted by reason of mental disorder without the application of any standard whatsoever, because “[n]ot all of these individuals will be dangerous”: at p. 1013, per Lamer C.J. But in the national security context, the signature of a certificate under s. 77 of the IRPA on the ground of security is necessarily related to the dangerousness of the individual. While not all the other grounds for the issuance of a certificate under s. 77(1) are conclusive of the danger posed by the named person, danger is not the only constitutional basis upon which an individual can be detained, and arbitrariness of detention under the other grounds was not argued.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-54", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 90", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "This leaves Mr. Almrei’s argument that the IRPA imposes arbitrary detention because it prevents review of the detention of foreign nationals until 120 days after the certificate is confirmed. Whether through habeas corpus or statutory mechanisms, foreign nationals, like others, have a right to prompt review to ensure that their detention complies with the law. This principle is affirmed in s. 10( c ) of the Charter . It is also recognized internationally: see Rasul v. Bush, 542 U.S. 466 (2004); Zadvydas v. Davis, 533 U.S. 678 (2001); art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (“European Convention on Human Rights”); Slivenko v. Latvia [GC], No. 48321/99, ECHR 2003-X, p. 229. While the government accepts this principle, it argues that the 120-day period in s. 84(2) is sufficiently prompt, relying, as did the courts below, on the fact that foreign nationals can apply for release and depart from Canada at any time.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-55", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 91–92", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The lack of review for foreign nationals until 120 days after the reasonableness of the certificate has been judicially determined violates the guarantee against arbitrary detention in s. 9 of the Charter , a guarantee which encompasses the right to prompt review of detention under s. 10( c ) of the Charter . Permanent residents named in certificates are entitled to an automatic review within 48 hours. The same time frame for review of detention applies to both permanent residents and foreign nationals under s. 57 of the IRPA . And under the Criminal Code , a person who is arrested with or without a warrant is to be brought before a judge within 24 hours, or as soon as possible: s. 503(1). These provisions indicate the seriousness with which the deprivation of liberty is viewed, and offer guidance as to acceptable delays before this deprivation is reviewed.\n\nThe government submits that the detention provisions, and more specifically the absence of review for foreign nationals until 120 days after the certificate has been determined to be reasonable, reflect its objective of creating a timely removal process for individuals thought to constitute a danger to national security, and asserts that when the provisions were drafted, it was thought that the removal process would be so fast that there would be no need for review. This is more an admission of the excessiveness of the 120-day period than a justification.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-56", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 93–95", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is clear that there may be a need for some flexibility regarding the period for which a suspected terrorist may be detained. Confronted with a terrorist threat, state officials may need to act immediately, in the absence of a fully documented case. It may take some time to verify and document the threat. Where state officials act expeditiously, the failure to meet an arbitrary target of a fixed number of hours should not mean the automatic release of the person, who may well be dangerous. However, this cannot justify the complete denial of a timely detention review. Permanent residents who pose a danger to national security are also meant to be removed expeditiously. If this objective can be pursued while providing permanent residents with a mandatory detention review within 48 hours, then how can a denial of review for foreign nationals for 120 days after the certificate is confirmed be considered a minimal impairment?\n\nI conclude that the lack of timely review of the detention of foreign nationals violates s. 9 and s. 10(c) and cannot be saved by s. 1. 2. Do Extended Periods of Detention Under the Scheme Violate Section 7 or the Section 12 Guarantee Against Cruel and Unusual Treatment?\n\nThe question at this point is whether the extended detention that may occur under the IRPA violates the guarantee against cruel and unusual treatment under s. 12 of the Charter . The threshold for breach of s. 12 is high. As stated by Lamer J. in Smith, treatment or punishment is cruel and unusual if it is “so excessive as to outrage [our] standards of decency”: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1067; also R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84, at para. 4.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-57", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 96–97", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual. (The same may be true of onerous conditions of release that seriously restrict a person’s liberty without affording an opportunity to challenge the restrictions.) Conversely, a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual: see Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.), per Rothstein J. (as he then was).\n\nMr. Almrei’s first submission is that “the combination of the legislative scheme and the conditions of detention . . . [transforms] the Appellant’s detention into one that is cruel and unusual”. I would reject this submission. This Court has not, in its past decisions, recognized s. 12 as a mechanism to challenge the overall fairness of a particular legislative regime.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-58", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 98–99", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "More narrowly, however, it has been recognized that indefinite detention in circumstances where the detainee has no hope of release or recourse to a legal process to procure his or her release may cause psychological stress and therefore constitute cruel and unusual treatment: Eur. Court H.R., Soering case, judgment of 7 July 1989, Series A, No. 161, at para. 111; compare Lyons, at pp. 339-41. However, for the reasons that follow, I conclude that the IRPA does not impose cruel and unusual treatment within the meaning of s. 12 of the Charter because, although detentions may be lengthy, the IRPA , properly interpreted, provides a process for reviewing detention and obtaining release and for reviewing and amending conditions of release, where appropriate.\n\nOn its face, the IRPA permits detention pending deportation on security grounds. In reality, however, a release from detention may be difficult to obtain. The Federal Court suggested that Mr. Almrei “holds the key to his release”: Almrei v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C.R. 327, 2004 FC 420, at para. 138. But voluntary departure may be impossible. A person named in a certificate of inadmissibility may have nowhere to go. Other countries may assume such a person to be a terrorist and are likely to refuse entry, or the person may fear torture on his or her return. Deportation may fail for the same reasons, despite the observation that “[i]n our jurisdiction, at this moment, deportation to torture remains a possibility” in exceptional circumstances: Almrei, 2005 FCA 54, at para. 127. The only realistic option may be judicial release.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-59", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 100", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the case of a permanent resident, detention is continued if the judge is satisfied that the person “continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal”: s. 83(3). The ministers bear the initial burden of establishing that these criteria are met: Charkaoui (Re), [2004] 1 F.C.R. 528, 2003 FC 882, at para. 36. In the case of a foreign national, release may be granted if the judge is “satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person”: s. 84(2). Unlike s. 83(3), s. 84(2) places the onus on the detainee: see Ahani v. Canada (Minister of Citizenship and Immigration) (2000), 24 Admin. L.R. (3d) 171 (F.C.A.).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-60", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 101", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Courts thus far have understood these provisions to set a high standard for release. In interpreting the predecessor to s. 84(2) under the Immigration Act, the Federal Court of Appeal held that judicial release “cannot be an automatic or easy thing to achieve”, and that it “is not to be routinely obtained”: Ahani, at para. 13. At the same time, courts have read the provision as allowing the judge to inquire whether terms and conditions could make the release safe. This is an invitation that Federal Court judges have rightly accepted: Harkat v. Canada (Minister of Citizenship and Immigration) [2007] 1 F.C.R. 321, 2006 FC 628, at para. 82; Almrei v. Canada (Minister of Citizenship and Immigration) (2005), 270 F.T.R. 1, 2005 FC 1645, at paras. 419-26. Likewise, when reviewing the detention of a permanent resident under s. 83(3), judges have examined the context that would surround release in order to determine whether the person would pose a security risk: Charkaoui (Re), 2005 FC 248, at paras. 71-73.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-61", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 102", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The cases at bar illustrate the difficulty that may be encountered in seeking release from a detention imposed under the IRPA . At the time of writing, Mr. Almrei, a foreign national, has been detained for over five years. He cannot be deported until the Minister issues an opinion that he constitutes a danger to the public. But two “danger opinions” have already been quashed by the Federal Court, the last one in March 2005. The Minister has yet to issue a new one. In dismissing Mr. Almrei’s application for judicial release, Layden-Stevenson J. held that Mr. Almrei had established that his removal was not imminent, was not a “done deal” and would not occur within a reasonable time (para. 272). However, she held that she was compelled to keep him in detention because she found that his release would pose a danger to national security under s. 84(2): Almrei, 2005 FC 1645. Mr. Almrei argues that as far as he is concerned, his detention is indefinite.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-62", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 103–104", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Harkat has been released from detention, but remains under house arrest and continuous surveillance by the Canada Border Services Agency (“CBSA”) and the RCMP by virtue of an order by Dawson J. He must at all times wear an electronic monitoring device and obtain the CBSA’s permission before leaving his house. He must at all times be under the supervision of either his wife or his mother-in-law. Access to his residence is restricted to individuals who have posted sureties and to Mr. Harkat’s legal counsel, as well as to emergency, fire, police and health care professionals. The CBSA is permitted to intercept all telephone and oral communications between Mr. Harkat and any third party. Mr. Harkat is forbidden to use any cellular phone or any computer with Internet connectivity. Breach of any of the numerous conditions in Dawson J.’s order would lead to automatic rearrest; however, these conditions are subject to ongoing review and amendment. The government is attempting to deport him to Algeria; whether this is possible may depend on the outcome of legal processes that are still pending.\n\nMr. Charkaoui has been released from detention under conditions that are somewhat less onerous: Charkaoui (Re), 2005 FC 248, at para. 86. These conditions have a serious impact on his liberty, and he remains in jeopardy of being rearrested for a breach of his conditions. But the conditions are subject to ongoing review and have been amended several times subsequent to his release. More legal avenues remain to be explored. Whether the government will seek to deport Mr. Charkaoui or detain him anew may depend on the outcome of his application for protection and the determination of the reasonableness of his certificate.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-63", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 105–106", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is thus clear that while the IRPA in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions. The next question is whether this violates s. 7 or s. 12 based on the applicable legal principles.\n\nThis Court has previously considered the possibility of indefinite detention in the criminal context. In Lyons, a majority of the Court held that “dangerous offender” legislation allowing for indefinite detention did not constitute cruel and unusual treatment or punishment within the meaning of s. 12 of the Charter because the statutory scheme includes a parole process that “ensures that incarceration is imposed for only as long as the circumstances of the individual case require” (p. 341, per La Forest J.). It is true that a judge can impose the dangerous offender designation only on a person who has been convicted of a serious personal injury offence; this Court indicated that a sentence of indeterminate detention, applied with respect to a future crime or a crime that had already been punished, would violate s. 7 of the Charter (pp. 327-28, per La Forest J.). But the use in criminal law of indeterminate detention as a tool of sentencing — serving both a punitive and a preventive function — does not establish the constitutionality of preventive detention measures in the immigration context.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-64", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 107", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The principles underlying Lyons must be adapted in the case at bar to the immigration context, which requires a period of time for review of the named person’s right to remain in Canada. Drawing on them, I conclude that the s. 7 principles of fundamental justice and the s. 12 guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case. Such persons must have meaningful opportunities to challenge their continued detention or the conditions of their release.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-65", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 108", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The type of process required has been explored in cases involving analogous situations. In Sahin, Rothstein J. had occasion to examine a situation of ongoing detention (for reasons unrelated to national security) under the Immigration Act. He concluded that “what amounts to an indefinite detention for a lengthy period of time may, in an appropriate case, constitute a deprivation of liberty that is not in accordance with the principles of fundamental justice” (p. 229) and held that ongoing detention under the Immigration Act could be constitutional if it resulted from the weighing of a number of factors (at pp. 231-32): The following list, which, of course, is not exhaustive of all considerations, seems to me to at least address the more obvious [considerations]. Needless to say, the considerations relevant to a specific case, and the weight to be placed upon them, will depend upon the circumstances of the case. (1) Reasons for the detention, i.e. is the applicant considered a danger to the public or is there a concern that he would not appear for removal. I would think that there is a stronger case for continuing a long detention when an individual is considered a danger to the public. (2) Length of time in detention and length of time detention will likely continue. If an individual has been held in detention for some time as in the case at bar, and a further lengthy detention is anticipated, or if future detention time cannot be ascertained, I would think that these facts would tend to favour release. (3) Has the applicant or the respondent caused any delay or has either not been as diligent as reasonably possible. Unexplained delay and even unexplained lack of diligence should count against the offending party.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-66", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 108–109", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "(4) The availability, effectiveness and appropriateness of alternatives to detention such as outright release, bail bond, periodic reporting, confinement to a particular location or geographic area, the requirement to report changes of address or telephone numbers, detention in a form that could be less restrictive to the individual, etc. A consideration that I think deserves significant weight is the amount of time that is anticipated until a final decision, determining, one way or the other, whether the applicant may remain in Canada or must leave.\n\nFactors regarding release are considered in another part of the IRPA and the accompanying Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRP Regulations”). When a non-citizen not named in a certificate is detained because he or she is inadmissible and also is a danger to the public or is unlikely to appear for examination, the non-citizen is entitled to detention reviews before the Immigration and Refugee Board: IRPA , ss. 55 to 57 . In determining whether the non-citizen should be held or released, the Board must take into account “prescribed factors”: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention (s. 58 IRPA and r. 248 IRP Regulations).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-67", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 110–111", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "I conclude that extended periods of detention under the certificate provisions of the IRPA do not violate ss. 7 and 12 of the Charter if accompanied by a process that provides regular opportunities for review of detention, taking into account all relevant factors, including the following: (a) Reasons for Detention\n\nThe criteria for signing a certificate are “security, violating human or international rights, serious criminality or organized criminality” (s. 77). Detention pursuant to a certificate is justified on the basis of a continuing threat to national security or to the safety of any person. While the criteria for release under s. 83 of the IRPA also include the likelihood that a person will appear at a proceeding or for removal, a threat to national security or to the safety of a person is a more important factor for the purpose of justifying continued detention. The more serious the threat, the greater will be the justification for detention. (b) Length of Detention", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-68", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 112–113", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The length of the detention to date is an important factor, both from the perspective of the individual and from the perspective of national security. The longer the period, the less likely that an individual will remain a threat to security: “The imminence of danger may decline with the passage of time”: Charkaoui (Re), 2005 FC 248, at para. 74. Noël J. concluded that Mr. Charkaoui could be released safely from detention because his long period of detention had cut him off from whatever associations with extremist groups he may have had. Likewise, in Mr. Harkat’s case, Dawson J. based her decision to release Mr. Harkat in part on the fact that the long period of detention meant that “his ability to communicate with persons in the Islamic extremist network has been disrupted”: Harkat, 2006 FC 628, at para. 86.\n\nA longer period of detention would also signify that the government would have had more time to gather evidence establishing the nature of the threat posed by the detained person. While the government’s evidentiary onus may not be heavy at the initial detention review (see above, at para. 93), it must be heavier when the government has had more time to investigate and document the threat. (c) Reasons for the Delay in Deportation", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-69", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 114–116", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "When reviewing detentions pending deportation, judges have assessed whether the delays have been caused by the detainees or the government: Sahin, at p. 231. In reviewing Mr. Almrei’s application for release, the Federal Court of Appeal stated that a reviewing judge could “discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time”: Almrei, 2005 FCA 54, at para. 58; see also Harkat, 2006 FC 628, at para. 30. Recourse by the government or the individual to applicable provisions of the IRPA that are reasonable in the circumstances and recourse by the individual to reasonable Charter challenges should not count against either party. On the other hand, an unexplained delay or lack of diligence should count against the offending party. (d) Anticipated Future Length of Detention\n\nIf there will be a lengthy detention before deportation or if the future detention time cannot be ascertained, this is a factor that weighs in favour of release. (e) Availability of Alternatives to Detention\n\nStringent release conditions, such as those imposed on Mr. Charkaoui and Mr. Harkat, seriously limit individual liberty. However, they are less severe than incarceration. Alternatives to lengthy detention pursuant to a certificate, such as stringent release conditions, must not be a disproportionate response to the nature of the threat.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-70", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 117–119", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "In other words, there must be detention reviews on a regular basis, at which times the reviewing judge should be able to look at all factors relevant to the justice of continued detention, including the possibility of the IRPA ’s detention provisions being misused or abused. Analogous principles apply to extended periods of release subject to onerous or restrictive conditions: these conditions must be subject to ongoing, regular review under a review process that takes into account all the above factors, including the existence of alternatives to the conditions.\n\nDo the provisions for review of detention under the IRPA ’s certificate scheme satisfy these requirements? To answer this question, we must examine ss. 83(3) and 84(2) in greater detail.\n\nSection 84(2) governs the release of foreign nationals. It requires the judge to consider whether the “release” of the detainee would pose a danger to security. This implies that the judge can consider terms and conditions that would neutralize the danger. The judge, if satisfied that the danger no longer exists or that it can be neutralized by conditions, may order the release.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-71", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 120–121", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 83(3), which applies to permanent residents, has a slightly different wording. It requires the judge to consider not whether the release would pose a danger as under s. 84(2), but whether the permanent resident continues to be a danger. An issue may arise as to whether this difference in wording affects the ability of the judge to fashion conditions and hence to order conditional release. In my view, there is no practical difference between saying a person’s release would be a danger and saying that the person is a danger. I therefore read s. 83(3), like s. 84(2), as enabling the judge to consider whether any danger attendant on release can be mitigated by conditions.\n\nOn this basis, I conclude that for both foreign nationals and permanent residents, the IRPA ’s certificate scheme provides a mechanism for review of detention, which permits the reviewing judge to fashion conditions that would neutralize the risk of danger upon release, and hence to order the release of the detainee.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-72", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 122–123", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "Reviewing judges have also developed a practice of periodic review in connection with release procedures: Charkaoui (Re), 2005 FC 248, at para. 86. In the immigration context, such periodic reviews must be understood to be required by ss. 7 and 12 of the Charter . The Federal Court of Appeal has suggested that once a foreign national has brought an application for release under s. 84(2), he or she cannot bring a new application except on the basis of (i) new evidence or (ii) a material change in circumstances since the previous application: Almrei, 2005 FCA 54; see also, Ahani, at paras. 14-15. Such an interpretation would lead to a holding that s. 84(2) is inconsistent with ss. 7 and 12; however, since s. 84(2) has already been found to infringe s. 9 and cannot be saved under s. 1, it is not necessary to decide this issue.\n\nIn summary, the IRPA , interpreted in conformity with the Charter , permits robust ongoing judicial review of the continued need for and justice of the detainee’s detention pending deportation. On this basis, I conclude that extended periods of detention pending deportation under the certificate provisions of the IRPA do not violate s. 7 or s. 12 of the Charter , provided that reviewing courts adhere to the guidelines set out above. Thus, the IRPA procedure itself is not unconstitutional on this ground. However, this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter .", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-73", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 124–125", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "These conclusions are consistent with English and American authority. Canada, it goes without saying, is not alone in facing the problem of detention in the immigration context in situations where deportation is difficult or impossible. Courts in the United Kingdom and the United States have suggested that detention in this context can be used only during the period where it is reasonably necessary for deportation purposes: R. v. Governor of Durham Prison, ex parte Singh, [1984] 1 All E.R. 983 (Q.B.); Zadvydas.\n\nA case raising similar issues is the decision of the House of Lords in A. v. Secretary of State for the Home Department, [2005] 3 All E.R. 169, [2004] UKHL 56 (“Re A”). This was an appeal brought by nine foreign nationals who were suspected of involvement in terrorism, but were not charged with any crime. The United Kingdom government sought to deport them, but in most cases this was impossible due to a risk of torture. So most of the individuals were detained at Belmarsh Prison under s. 23 of the Anti-terrorism, Crime and Security Act 2001 (U.K.), 2001, c. 24. This provision empowered the government to detain suspected international terrorists under the provisions governing detention pending deportation, despite the fact that removal from the United Kingdom was temporarily or indefinitely prevented, in derogation from art. 5 of the European Convention on Human Rights: see Chahal.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-74", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 126–127", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The government claimed that this derogation was necessary to combat the national security threat posed by Al-Qaeda terrorists. The House of Lords, by a majority of 8 to 1, accepted that Al-Qaeda terrorism represented a serious threat to the life of the nation, but seven of the eight Lords who accepted this premise nevertheless concluded that s. 23 was not strictly required by the exigencies of the situation. These same seven Lords also concluded that s. 23 was incompatible with art. 14 of the European Convention on Human Rights, because of the way it discriminated between nationals and non-nationals. The derogation permitting permanent detention of non-nationals treated them more harshly than nationals. Absent the possibility of deportation, it lost its character as an immigration provision, and hence constituted unlawful discrimination.\n\nThe finding in Re A of breach of the detention norms under the European Convention on Human Rights was predicated on the U.K. Act’s authorization of permanent detention. The IRPA , unlike the U.K. legislation under consideration in Re A, does not authorize indefinite detention and, interpreted as suggested above, provides an effective review process that meets the requirements of Canadian law.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-75", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 128–129", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The fairness of the detention review procedure arises as an independent issue. I concluded above that this procedure, like the certificate determination procedure, denies the right to a fair hearing and does so in a way that does not minimally impair the detainee’s rights. For the reasons given earlier, Parliament must therefore revisit the provisions for detention review in order to meaningfully protect the procedural rights of detainees. C. Do the Certificate and Detention Review Procedures Discriminate Between Citizens and Non-Citizens, Contrary to Section 15 of the Charter , and if so, Is the Discrimination Justified Under Section 1 of the Charter ?\n\nThe appellant Mr. Charkaoui argues that the IRPA certificate scheme discriminates against non‑citizens, contrary to s. 15(1) of the Charter . However, s. 6 of the Charter specifically allows for differential treatment of citizens and non‑citizens in deportation matters: only citizens are accorded the right to enter, remain in and leave Canada (s. 6(1)). A deportation scheme that applies to non‑citizens, but not to citizens, does not, for that reason alone, violate s. 15 of the Charter : Chiarelli.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-76", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 130–132", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is argued that while this is so, there are two ways in which the IRPA could, in some circumstances, result in discrimination. First, detention may become indefinite as deportation is put off or becomes impossible, for example because there is no country to which the person can be deported. Second, the government could conceivably use the IRPA not for the purpose of deportation, but to detain the person on security grounds. In both situations, the source of the problem is that the detention is no longer related, in effect or purpose, to the goal of deportation. In Re A, the legislation considered by the House of Lords expressly provided for indefinite detention; this was an important factor leading to the majority’s holding that the legislation went beyond the concerns of immigration legislation and thus wrongfully discriminated between nationals and non-nationals: paras. 54, 81, 134, 157-58, 180 and 229.\n\nEven though the detention of some of the appellants has been long — indeed, Mr. Almrei’s continues — the record on which we must rely does not establish that the detentions at issue have become unhinged from the state’s purpose of deportation. More generally, the answer to these concerns lies in an effective review process that permits the judge to consider all matters relevant to the detention, as discussed earlier in these reasons.\n\nI conclude that a breach of s. 15 of the Charter has not been established. D. Are the IRPA Certificate Provisions Inconsistent With the Constitutional Principle of the Rule of Law?", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-77", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 133–135", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant Mr. Charkaoui claims that the unwritten constitutional principle of the rule of law is infringed by two aspects of the IRPA scheme: the unavailability of an appeal of the designated judge’s determination that the certificate is reasonable; and the provision in s. 82 for the issuance of an arrest warrant by the executive (in the case of a permanent resident) or for mandatory arrest without a warrant following an executive decision (in the case of a foreign national).\n\nThe rule of law incorporates a number of themes. Most fundamentally, it requires government officials to exercise their authority according to law, and not arbitrarily: Roncarelli v. Duplessis, [1959] S.C.R. 121; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 748-49. It requires the creation and maintenance of an actual order of positive laws: Reference re Manitoba Language Rights. And it is linked to the principle of judicial independence: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island.\n\nMr. Charkaoui’s claim is based not on any of these themes, but on the content of the IRPA . But as this Court held in British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49, “it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation . . . based on its content” (para. 59). Even if this dictum leaves room for exceptions, Mr. Charkaoui has not established that the IRPA should be one of them.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-78", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 136–138", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, Mr. Charkaoui argues that the rule of law is violated by the unavailability of an appeal of the judge’s determination of the reasonableness of the certificate. But there is no constitutional right to an appeal (Kourtessis v. M.N.R., [1993] 2 S.C.R. 53); nor can such a right be said to flow from the rule of law in this context. The Federal Court is a superior court, not an administrative tribunal: Federal Courts Act , R.S.C. 1985, c. F‑7, s. 4 . Federal Court judges, when reviewing certificates under the IRPA , have all the powers of Federal Court judges and exercise their powers judicially. Moreover, the Federal Court of Appeal has reinforced the legality of the process by holding that it is appropriate to circumvent the s. 80(3) privative clause where the constitutionality of legislation is challenged (Charkaoui (Re), 2004 FCA 421, at paras. 47‑50) or where the named person alleges bias on the part of the designated judge (Zündel, Re (2004), 331 N.R. 180, 2004 FCA 394).\n\nSecond, Mr. Charkaoui argues that the rule of law is violated by the provision for arrest under a warrant issued by the executive (in the case of a permanent resident) or for automatic detention without a warrant (in the case of a foreign national). But the rule of law does not categorically prohibit automatic detention or detention on the basis of an executive decision. The constitutional protections surrounding arrest and detention are set out in the Charter , and it is hard to see what the rule of law could add to these provisions. IV. Conclusion\n\nThe scheme set up under Division 9 of Part 1 of the IRPA suffers from two defects that are inconsistent with the Charter .", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-79", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 139–140", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first is that s. 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes. It is clear from approaches adopted in other democracies, and in Canada itself in other security situations, that solutions can be devised that protect confidential security information and at the same time are less intrusive on the person’s rights. It follows that the IRPA ’s procedure for the judicial confirmation of certificates and review of detention violates s. 7 of the Charter and has not been shown to be justified under s. 1 of the Charter . I would declare the procedure to be inconsistent with the Charter , and hence of no force or effect.\n\nHowever, in order to give Parliament time to amend the law, I would suspend this declaration for one year from the date of this judgment. If the government chooses to go forward with the proceedings to have the reasonableness of Mr. Charkaoui’s certificate determined during the one-year suspension period, the existing process under the IRPA will apply. After one year, the certificates of Mr. Harkat and Mr. Almrei (and of any other individuals whose certificates have been deemed reasonable) will lose the “reasonable” status that has been conferred on them, and it will be open to them to apply to have the certificates quashed. If the government intends to employ a certificate after the one-year delay, it will need to seek a fresh determination of reasonableness under the new process devised by Parliament. Likewise, any detention review occurring after the delay will be subject to the new process.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-80", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "paras 141–142", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "The second defect is found in s. 84(2) of the IRPA , which denies a prompt hearing to foreign nationals by imposing a 120-day embargo, after confirmation of the certificate, on applications for release. Counsel for the ministers submitted in oral argument that if this Court were to find that s. 84(2) violates the Charter , the appropriate remedy would be to strike s. 84(2) and read foreign nationals into s. 83. This is a good first step, but it does not provide a complete solution, since s. 83 deals with detention review only until the certificate has been determined to be reasonable, whereas s. 84(2) deals with detention review after it has been determined to be reasonable. Striking s. 84(2) would therefore leave no provision for review of detention of foreign nationals once the certificate has been deemed reasonable.\n\nAccordingly, I conclude that the appropriate remedy is to strike s. 84(2) as well as to read foreign nationals into s. 83 and to strike the words “until a determination is made under subsection 80(1)” from s. 83(2).", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-81", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 143", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "I would allow the appeals with costs to the appellants, and answer the constitutional questions as follows: 1. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, offend the principle of judicial independence protected by: (a) s. 96 of the Constitution Act, 1867 , or (b) the Preamble to the Constitution Act, 1867 ? Answer: No. 2. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, offend the constitutional principle of the rule of law? Answer: No. 3. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 7 of the Canadian Charter of Rights and Freedoms ? Answer: Yes. 4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: No. 5. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 9 of the Canadian Charter of Rights and Freedoms ? Answer: Yes. 6. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: No. 7. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 10 of the Canadian Charter of Rights and Freedoms ? Answer: Yes. 8.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-2345-82", - "doc_type": "caselaw", - "act_code": "2007 SCC 9", - "act_short": "Charkaoui", - "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", - "marginal_note": "para 143", - "heading": "Security certificates and immigration detention; the Charter and procedural fairness", - "part": "Supreme Court of Canada", - "division": "", - "text": "If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: No. 9. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 12 of the Canadian Charter of Rights and Freedoms ? Answer: No. 10. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: It is unnecessary to answer this question. 11. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 15 of the Canadian Charter of Rights and Freedoms ? Answer: No. 12. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: It is unnecessary to answer this question.", - "current_to": "2007-02-23", - "last_amended": "", - "history": "[2007] 1 SCR 350", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" - }, - { - "id": "scc-1937-1", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 1–2", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court — In this appeal we hold that Suresh is entitled to a new deportation hearing under the Immigration Act, R.S.C. 1985, c. I-2. Suresh came to Canada from Sri Lanka in 1990. He was recognized as a Convention refugee in 1991 and applied for landed immigrant status. In 1995 the government detained him and started proceedings to deport him to Sri Lanka on grounds he was a member and fundraiser for the Liberation Tigers of Tamil Eelam (“LTTE”), an organization alleged to engage in terrorist activity in Sri Lanka. Suresh challenged the order for his deportation on various grounds of substance and procedure. In these reasons we examine the Immigration Act and the Canadian Charter of Rights and Freedoms , and find that deportation to face torture is generally unconstitutional and that some of the procedures followed in Suresh’s case did not meet the required constitutional standards. We therefore conclude that Suresh is entitled to a new hearing.\n\nThe appeal requires us to consider a number of issues: the standard to be applied in reviewing a ministerial decision to deport; whether the Charter precludes deportation to a country where the refugee faces torture or death; whether deportation on the basis of mere membership in an alleged terrorist organization unjustifiably infringes the Charter rights of free expression and free association; whether “terrorism” and “danger to the security of Canada” are unconstitutionally vague; and whether the deportation scheme contains adequate procedural safeguards to ensure that refugees are not expelled to a risk of torture or death.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-2", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 3–5", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to effectively meet this challenge.\n\nOn the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule of law, and the principles of fundamental justice — values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments.\n\nWe conclude that to deport a refugee to face a substantial risk of torture would generally violate s. 7 of the Charter . The Minister of Citizenship and Immigration must exercise her discretion to deport under the Immigration Act accordingly. Properly applied, the legislation conforms to the Charter . We reject the arguments that the terms “danger to the security of Canada” and “terrorism” are unconstitutionally vague and that ss. 19 and 53(1)(b) of the Act violate the Charter guarantees of free expression and free association, and conclude that the Act’s impugned procedures, properly followed, are constitutional. We believe these findings leave ample scope to Parliament to adopt new laws and devise new approaches to the pressing problem of terrorism.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-3", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 6–8", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Applying these conclusions, we find that the appellant Suresh made a prima facie case showing a substantial risk of torture if deported to Sri Lanka, and that his hearing did not provide the procedural safeguards required to protect his right not to be expelled to a risk of torture or death. This means that the case must be remanded to the Minister for reconsideration. The immediate result is that Suresh will remain in Canada until his new hearing is complete. Parliament’s scheme read in light of the Canadian Constitution requires no less. I. Facts and Judicial Proceedings\n\nThe appellant, Manickavasagam Suresh, was born in 1955. He is a Sri Lankan citizen of Tamil descent. Suresh entered Canada in October 1990, and was recognized as a Convention refugee by the Refugee Division of the Immigration and Refugee Board in April 1991. Recognition as a Convention refugee has a number of legal consequences; the one most directly relevant to this appeal is that, under s. 53(1) of the Immigration Act, generally the government may not return (“refouler”) a Convention refugee “to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion”.\n\nIn the summer of 1991, the appellant applied for landed immigrant status in Canada. His application was not finalized because, in late 1995, the Solicitor General of Canada and the Minister of Citizenship and Immigration commenced proceedings to deport Suresh to Sri Lanka on security grounds.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-4", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 9–11", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first step in the procedure was a certificate under s. 40.1 of the Immigration Act alleging that Suresh was inadmissible to Canada on security grounds. The Solicitor General and the Minister filed the certificate with the Federal Court of Canada on October 17, 1995, and Suresh was detained the following day.\n\nThe s. 40.1 certificate was based on the opinion of the Canadian Security Intelligence Service (“CSIS”) that Suresh is a member of the LTTE, an organization that, according to CSIS, is engaged in terrorist activity in Sri Lanka and functions in Canada under the auspices of the World Tamil Movement (“WTM”). LTTE supports the cause of Tamils in the ongoing Sri Lankan civil war. The struggle is a protracted and bitter one. The Tamils are in rebellion against the democratically elected government of Sri Lanka. Their grievances are deep-rooted, and atrocities appear to be commonplace on both sides. The conflict has its roots in measures taken by a past government which, in the view of the Tamil minority, deprived it of basic linguistic, cultural and political rights. Subsequent governments have made attempts to accommodate these grievances, find a political solution, and re-establish civilian controls on the security and defence establishments, but a solution has yet to be found.\n\nHuman rights reporting on the practices of the Sri Lanka security forces indicates that the use of torture is widespread, particularly against persons suspected of membership in the LTTE. In a report dated 2001, Amnesty International cites frequent incidents of torture by the police and army, including a report that five labourers arrested on suspicion of involvement with the LTTE were tortured by police. One of them died apparently as a result of the torture.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-5", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 12–14", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The s. 40.1 certificate was referred to the Federal Court for determination “whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available” as required by s. 40.1(4)(d) — the second step in the deportation procedure. Pursuant to s. 40.1(5), the designated judge is entitled to receive and consider any evidence the judge “sees fit, whether or not the evidence or information is or would be admissible in a court of law”.\n\nIn August 1997, after 50 days of hearings, Teitelbaum J. upheld the s. 40.1 certificate, finding it “reasonable” under s. 40.1(4)(d) of the Act: (1997), 140 F.T.R. 88. Specifically, Teitelbaum J. found that: (1) Suresh had been a member of the LTTE since his youth and is now (or was at the time of Teitelbaum J.’s consideration) a member of the LTTE executive; (2) the WTM is part of the LTTE or at least an organization that supports the activities of the LTTE; (3) Suresh obtained refugee status “by wilful misrepresentation of facts” and lacks credibility; (4) there are reasonable grounds to believe the LTTE has committed terrorist acts; and (5) Tamils arrested by Sri Lankan authorities are badly mistreated and in a number of cases the mistreatment bordered on torture.\n\nA deportation hearing followed — the third step in the deportation procedure. The adjudicator found no reasonable grounds to conclude Suresh was directly engaged in terrorism under s. 19(1)(f)(ii), but held that he should be deported on grounds of membership in a terrorist organization under ss. 19(1)(f)(iii)(B) and 19(1)(e)(iv)(C).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-6", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 15", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "On the same day, September 17, 1997, the Minister took the fourth step in the deportation process, notifying Suresh that she was considering issuing an opinion declaring him to be a danger to the security of Canada under s. 53(1)(b) of the Act, which permits the Minister to deport a refugee on security grounds even where the refugee’s “life or freedom” would be threatened by the return. In response to the Minister’s notification, Suresh submitted written arguments and documentary evidence, including reports indicating the incidence of torture, disappearances, and killings of suspected members of LTTE.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-7", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 16", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Donald Gautier, an immigration officer for Citizenship and Immigration Canada, considered the submissions and recommended that the Minister issue an opinion under s. 53(1)(b) that Suresh constituted a danger to the security of Canada. Noting Suresh’s links to LTTE, he stated that “[t]o allow Mr. Suresh to remain in this country and continue his activities runs counter to Canada’s international commitments in the fight against terrorism”. At the same time, Mr. Gautier acknowledged that Mr. Suresh “is not known to have personally committed any acts of violence either in Canada or Sri Lanka” and that his activities on Canadian soil were “non-violent” in nature. Gautier found that Suresh faced a risk on returning to Sri Lanka, but this was difficult to assess; might be tempered by his high profile; and was counterbalanced by Suresh’s terrorist activities in Canada. He concluded that, “on balance, there are insufficient humanitarian and compassionate considerations present to warrant extraordinary consideration”. Accordingly, on January 6, 1998, the Minister issued an opinion that Suresh constituted a danger to the security of Canada and should be deported pursuant to s. 53(1)(b). Suresh was not provided with a copy of Mr. Gautier’s memorandum, nor was he provided an opportunity to respond to it orally or in writing. No reasons are required under s. 53(1)(b) of the Immigration Act and none were given.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-8", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 17–18", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Suresh applied to the Federal Court for judicial review, alleging that the Minister’s decision was unreasonable; that the procedures under the Act, which did not require an oral hearing and independent decision-maker, were unfair; and that the Act unconstitutionally violated ss. 7 and 2 of the Charter . McKeown J. (1999), 65 C.R.R. (2d) 344, dismissed the application on all grounds. In his view, the Minister’s decision was not unreasonable and the Act was constitutional.\n\nOn the s. 7 challenge, McKeown J. found that the Minister, weighing the risk of exposing Suresh to torture against the danger that Suresh posed to the security of Canada, had satisfied the requirements of fundamental justice. McKeown J. acknowledged that the s. 7 Charter analysis should be informed by international law, and by the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36 (“CAT”), in particular. However, the CAT applies only where there are “substantial grounds” to believe that the person in question would be in danger of being tortured. Suresh had not met this test he held, in part because he had not submitted to the Minister a personal statement outlining why he believed he was at risk. McKeown J. concluded that the appellant’s expulsion would not “shock the conscience” of Canadians, the test for unconstitutionality under s. 7 of the Charter .", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-9", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 19–20", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "On the s. 2 challenge, McKeown J. found that Suresh’s activities as a fundraiser could not be considered “expression” under s. 2(b), since those activities were conducted in the service of a violent organization. He also found that Suresh’s activities were not protected under s. 2(d), since the association in question existed to commit acts of violence. As to Suresh’s vagueness arguments, McKeown J. held that neither the term “danger to the security of Canada” nor the term “terrorism” is unconstitutionally vague. Accordingly, McKeown J. dismissed the application.\n\nSuresh appealed to the Federal Court of Appeal. It too dismissed his application. Robertson J.A., for the court, held that the right under international law to be free from torture was limited by a country’s right to expel those who pose a security risk: [2000] 2 F.C. 592. He held, at paras. 31-32, that the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”), permits derogation from the prohibition against deportation to torture and that, in any event, Canadian statutory law supersedes customary international law. He agreed with McKeown J. that fundraising to support terrorist violence was not protected under s. 2. He also agreed that the Immigration Act procedures were adequate; in particular, no oral hearing was required to assess the risk of torture upon deportation. Finally, he agreed that neither the term “danger to the security of Canada” nor the term “terrorism” is unconstitutionally vague.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-10", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 21–23", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Robertson J.A. rejected Suresh’s argument that s. 53(1)(b) of the Act is unconstitutional insofar as it permits the Minister to expel a refugee to torture. He held that while deportation to torture violates s. 7’s guarantee of the right to life, liberty and security of the person, the violation was justified under s. 1. The objective of preventing Canada from becoming a haven for terrorist organizations was pressing and substantial and the deportation provision was a proportionate response to that objective bearing in mind the limitations on the power of deportation, its use as a measure of last resort and Canada’s international obligations to combat terrorism. Expulsion of a refugee who is a danger to the security of Canada would not violate the sense of justice or “shock the conscience” of most Canadians, notwithstanding that the refugee might face torture on return, because Canada would be neither the first nor the last link in the chain of causation leading to torture, but merely an involuntary intermediary.\n\nFinally, Robertson J.A. rejected the alternate argument that s. 53(1)(b), if constitutional, violated Suresh’s s. 7 right to security in its application. The administrative decision to deport Suresh properly considered the risk Suresh posed to Canada, acknowledged the risk of torture Suresh would face upon return to Sri Lanka, noted factors that might reduce the risk, and held that on balance it was outweighed by Canada’s interest in its own security.\n\nSuresh now appeals to this Court. II. Relevant Constitutional and Statutory Provisions", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-11", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 24", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Canadian Charter of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 2. Everyone has the following fundamental freedoms: . . . (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; . . . (d) freedom of association. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Immigration Act, R.S.C. 1985, c. I-2 19. (1) No person shall be granted admission who is a member of any of the following classes: . . . (e) persons who there are reasonable grounds to believe . . . (iv) are members of an organization that there are reasonable grounds to believe will . . . (C) engage in terrorism; (f) persons who there are reasonable grounds to believe . . . (ii) have engaged in terrorism, or (iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in . . . (B) terrorism, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; 53.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-12", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 24–25", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "(1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless . . . (b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; III. Issues\n\nWe propose to consider the issues in the following order: 1. What is the appropriate standard of review with respect to ministerial decisions under s. 53(1)(b) of the Immigration Act? 2. Are the conditions for deportation in the Immigration Act constitutional? (a) Does the Act permit deportation to torture contrary to the Charter ? (b) Are the terms “danger to the security of Canada” and “terrorism” unconstitutionally vague? (c) Does deportation for membership in a terrorist organization unjustifiably violate the Charter guarantees of freedom of expression and freedom of association? 3. Are the procedures for deportation set out in the Immigration Act constitutionally valid? 4. Examining Suresh’s case in light of the conclusions to the foregoing questions, should the Minister’s order be set aside and a new hearing ordered? IV. Analysis 1. Standard of Review", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-13", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 26–27", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "This appeal involves a consideration of four types of issues: (1) constitutional review of the provisions of the Immigration Act; (2) whether Suresh’s presence in Canada constitutes a danger to national security; (3) whether Suresh faces a substantial risk of torture upon return to Sri Lanka; and (4) whether the procedures used by the Minister under the Act were adequate to protect Suresh’s constitutional rights.\n\nThe issues of the constitutionality of the deportation provisions of the Immigration Act do not involve review of ministerial decision-making. The fourth issue of the adequacy of the procedures under the Act will be considered separately later in these reasons. At this point, our inquiry is into the standard of review to be applied to the second and third issues — the Minister’s decisions on whether Suresh poses a risk to the security of Canada and whether he faces a substantial risk of torture on deportation. The latter was characterized by Robertson J.A. as a constitutional decision and hence requires separate treatment. It is our view that the threshold question is factual, that is whether there is a substantial risk of torture if the appellant is sent back, although this inquiry is mandated by s. 7 of the Charter . The constitutional issue is whether it would shock the Canadian conscience to deport Suresh once a substantial risk of torture has been established. This is when s. 7 is engaged. Since we are ordering a new hearing on procedural grounds, we are not required in this appeal to review the Minister’s decisions on whether Suresh’s presence constitutes a danger to the security of Canada and whether he faces a substantial risk of torture on deportation. However, we offer the following comments to assist courts in future ministerial review.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-14", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 28–29", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The trial judge and the Court of Appeal rejected Suresh’s submission that the highest standard of review should apply to the determination of the rights of refugees. Robertson J.A., while inclined to apply a deferential standard of review to whether Suresh constituted a danger to the security of Canada, concluded that the decision could be maintained on any standard. Robertson J.A. went on to state (at paras. 131-36) that while the Act and the Constitution place constraints on the Minister’s exercise of her discretion, these do not extend to a judicially imposed obligation to give particular weight to particular factors. On the question of whether he would face a substantial risk of torture on return, a question that he viewed as constitutional rather than merely one of judicial review, Robertson J.A. did not determine the applicable standard of review, concluding that even on the stringent standard of correctness the Minister’s decision should be upheld.\n\nThe first question is what standard should be adopted with respect to the Minister’s decision that a refugee constitutes a danger to the security of Canada. We agree with Robertson J.A. that the reviewing court should adopt a deferential approach to this question and should set aside the Minister’s discretionary decision if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. The court should not reweigh the factors or interfere merely because it would have come to a different conclusion.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-15", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 30", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "This conclusion is mandated by Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, which reviewed the principles for determining the standard of review according to the functional and pragmatic approach. In Pushpanathan, the Court emphasized that the ultimate question is always what the legislature intended. One looks to the language of the statute as well as a number of factors to determine that intention. Here the language of the Act (the Minister must be “of the opinion” that the person constitutes a danger to the security of Canada) suggests a standard of deference. So, on the whole, do the factors to be considered: (1) the presence or absence of a clause negating the right of appeal; (2) the relative expertise of the decision-maker; (3) the purpose of the provision and the legislation generally; and (4) the nature of the question (Pushpanathan, supra, at paras. 29-38).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-16", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 31", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first factor suggests that Parliament intended only a limited right of appeal. Although the Minister’s s. 53(1)(b) opinion is not protected by a privative clause, it may only be appealed by leave of the Federal Court, Trial Division (s. 82.1(1)), and that leave decision may not itself be appealed (s. 82.2). The second factor, the relative expertise of the decision-maker, again favours deference. As stated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, “[t]he fact that the formal decision-maker is the Minister is a factor militating in favour of deference” (para. 59). The Minister, as noted by Lord Hoffmann in Secretary of State for the Home Department v. Rehman, [2001] 3 W.L.R. 877 (H.L.), at para. 62, “has access to special information and expertise in . . . matters [of national security]”. The third factor — the purpose of the legislation — again favours deference. This purpose, as discussed in Pushpanathan, supra, at para. 73, is to permit a “humanitarian balance” of various interests — “the seriousness of the danger posed to Canadian society” on the one hand, and “the danger of persecution upon refoulement”on the other. Again, the Minister is in a superior position to a court in making this assessment. Finally, the nature of the case points to deference. The inquiry is highly fact-based and contextual. As in Baker, supra, at para. 61, the s. 53(1)(b) danger opinion “involves a considerable appreciation of the facts of that person’s case, and is not one which involves the application or interpretation of definitive legal rules”, suggesting it merits a wide degree of deference.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-17", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 32–33", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "These factors suggest that Parliament intended to grant the Minister a broad discretion in issuing a s. 53(1)(b) opinion, reviewable only where the Minister makes a patently unreasonable decision. It is true that the question of whether a refugee constitutes a danger to the security of Canada relates to human rights and engages fundamental human interests. However, it is our view that a deferential standard of ministerial review will not prevent human rights issues from being fully addressed, provided proper procedural safeguards are in place and provided that any decision to deport meets the constitutional requirements of the Charter .\n\nThe House of Lords has taken the same view in Rehman, supra. Lord Hoffmann, following the events of September 11, 2001, added the following postscript to his speech (at para. 62): I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove. [Emphasis added.]", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-18", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 34–35", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "It follows that the weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion (see, for instance, Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 607, where Iacobucci J. explained that a reviewing court should not disturb a decision based on a “broad discretion” unless the tribunal has “made some error in principle in exercising its discretion or has exercised its discretion in a capricious or vexatious manner”).\n\nThe Court’s recent decision in Baker, supra, did not depart from this view. Rather, it confirmed that the pragmatic and functional approach should be applied to all types of administrative decisions in recognition of the fact that a uniform approach to the determination of the proper standard of review is preferable, and that there may be special situations where even traditionally discretionary decisions will best be reviewed according to a standard other than the deferential standard which was universally applied in the past to ministerial decisions (see Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-19", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 36–37", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court specified in Baker, supra, that a nuanced approach to determining the appropriate standard of review was necessary given the difficulty in rigidly classifying discretionary and non-discretionary decisions (paras. 54-55). The Court also made it clear in Baker that its approach “should not be seen as reducing the level of deference given to decisions of a highly discretionary nature” (para. 56) and, moreover, that any ministerial obligation to consider certain factors “gives the applicant no right to a particular outcome or to the application of a particular legal test” (para. 74). To the extent this Court reviewed the Minister’s discretion in that case, its decision was based on the ministerial delegate’s failure to comply with self-imposed ministerial guidelines, as reflected in the objectives of the Act, international treaty obligations and, most importantly, a set of published instructions to immigration officers.\n\nThe passages in Baker referring to the “weight” of particular factors (see paras. 68 and 73-75) must be read in this context. It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors: see Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.); Re Sheehan and Criminal Injuries Compensation Board (1974), 52 D.L.R. (3d) 728 (Ont. C.A.); Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; Dagg, supra, at paras. 111-12, per La Forest J. (dissenting on other grounds).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-20", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 38", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "This standard appropriately reflects the different obligations of Parliament, the Minister and the reviewing court. Parliament’s task is to establish the criteria and procedures governing deportation, within the limits of the Constitution. The Minister’s task is to make a decision that conforms to Parliament’s criteria and procedures as well as the Constitution. The court’s task, if called upon to review the Minister’s decision, is to determine whether the Minister has exercised her decision-making power within the constraints imposed by Parliament’s legislation and the Constitution. If the Minister has considered the appropriate factors in conformity with these constraints, the court must uphold his decision. It cannot set it aside even if it would have weighed the factors differently and arrived at a different conclusion.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-21", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 39", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "This brings us to the question of the standard of review of the Minister’s decision on whether the refugee faces a substantial risk of torture upon deportation. This question is characterized as constitutional by Robertson J.A., to the extent that the Minister’s decision to deport to torture must ultimately conform to s. 7 of the Charter : see Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, per La Forest J.; and United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, at para. 32. As mentioned earlier, whether there is a substantial risk of torture if Suresh is deported is a threshold question. The threshold question here is in large part a fact-driven inquiry. It requires consideration of the human rights record of the home state, the personal risk faced by the claimant, any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its own security forces, and more. It may also involve a reassessment of the refugee’s initial claim and a determination of whether a third country is willing to accept the refugee. Such issues are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension. We are accordingly of the view that the threshold finding of whether Suresh faces a substantial risk of torture, as an aspect of the larger s. 53(1)( b ) opinion, attracts deference by the reviewing court to the Minister’s decision. The court may not reweigh the factors considered by the Minister, but may intervene if the decision is not supported by the evidence or fails to consider the appropriate factors. It must be recognized that the nature of the evidence required may be limited by the nature of the inquiry.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-22", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 39–40", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "This is consistent with the reasoning of this Court in Kindler, supra, at pp. 836-37, where considerable deference was shown to ministerial decisions involving similar considerations in the context of a constitutional revision, that is in the context of a decision where the s. 7 interest was engaged.\n\nBefore leaving the issue of standard of review, it is useful to underline the distinction between standard of review and the evidence required to establish particular facts in issue. For example, some authors suggest a lower evidentiary standard may govern decisions at entry (under ss. 2 and 19 of the Act) than applies to decisions to deport a landed Convention refugee under s. 53(1)(b): see J. C. Hathaway and C. J. Harvey “Framing Refugee Protection in the New World Disorder” (2001), 34 Cornell Int’l L.J. 257, at p. 288. This does not imply different standards of review. Different administrative decisions involve different factors, stemming from the statutory scheme and the particular issues raised. Yet the same standard of review may apply.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-23", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 41–42", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We conclude that in reviewing ministerial decisions to deport under the Act, courts must accord deference to those decisions. If the Minister has considered the correct factors, the courts should not reweigh them. Provided the s. 53(1)(b) decision is not patently unreasonable — unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures — it should be upheld. At the same time, the courts have an important role to play in ensuring that the Minister has considered the relevant factors and complied with the requirements of the Act and the Constitution. 2. Are the Conditions for Deportation in the Immigration Act Constitutional? (a) Does the Act Permit Deportation to Torture Contrary to the Charter ?\n\nSuresh opposes his deportation to Sri Lanka on the ground, among others, that on return he faces a substantial risk of torture. McKeown J. found that Suresh had not shown that he personally would risk torture according to the “substantial grounds” test. His finding seems to conflict with that of the immigration officer who acknowledged “that there is a risk to Mr. Suresh on his return to Sri Lanka”, but concluded that “this is counterbalanced by the serious terrorist activities to which he is a party”. Acting on these findings, the Minister ordered Suresh deported.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-24", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 43–44", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 53 of the Immigration Act permits deportation “to a country where the person’s life or freedom would be threatened”. The question is whether such deportation violates s. 7 of the Charter . Torture is defined in Article 1 of the CAT as including the unlawful use of psychological or physical techniques to intentionally inflict severe pain and suffering on another, when such pain or suffering is inflicted by or with the consent of public officials. A similar definition of torture may be found in s. 269.1 of the Criminal Code , R.S.C. 1985, c. C-46 .\n\nSection 7 of the Charter guarantees “[e]veryone . . . the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. It is conceded that “everyone” includes refugees and that deportation to torture may deprive a refugee of liberty, security and perhaps life. The only question is whether this deprivation is in accordance with the principles of fundamental justice. If it is not, s. 7 is violated and, barring justification of the violation under s. 1 of the Charter , deportation to torture is unconstitutional.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-25", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 45", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The principles of fundamental justice are to be found in “the basic tenets of our legal system”: Burns, supra, at para. 70. “They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. The relevant principles of fundamental justice are determined by a contextual approach that “takes into account the nature of the decision to be made”: Kindler, supra, at p. 848, per McLachlin J. (as she then was). The approach is essentially one of balancing. As we said in Burns, “[i]t is inherent in the . . . balancing process that the outcome may well vary from case to case depending on the mix of contextual factors put into the balance” (para. 65). Deportation to torture, for example, requires us to consider a variety of factors, including the circumstances or conditions of the potential deportee, the danger that the deportee presents to Canadians or the country’s security, and the threat of terrorism to Canada. In contexts in which the most significant considerations are general ones, it is likely that the balance will be struck the same way in most cases. It would be impossible to say in advance, however, that the balance will necessarily be struck the same way in every case.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-26", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 46–47", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The inquiry into the principles of fundamental justice is informed not only by Canadian experience and jurisprudence, but also by international law, including jus cogens. This takes into account Canada’s international obligations and values as expressed in “[t]he various sources of international human rights law — declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, [and] customary norms”: Burns, at paras. 79-81; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 348, per Dickson C.J. (dissenting); see also Re B.C. Motor Vehicle Act, supra, at p. 512; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1056-57; R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 750; and Baker, supra.\n\nDetermining whether deportation to torture violates the principles of fundamental justice requires us to balance Canada’s interest in combatting terrorism and the Convention refugee’s interest in not being deported to torture. Canada has a legitimate and compelling interest in combatting terrorism. But it is also committed to fundamental justice. The notion of proportionality is fundamental to our constitutional system. Thus we must ask whether the government’s proposed response is reasonable in relation to the threat. In the past, we have held that some responses are so extreme that they are per se disproportionate to any legitimate government interest: see Burns, supra. We must ask whether deporting a refugee to torture would be such a response.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-27", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 48–49", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "With these thoughts in mind, we turn to the question of whether the government may, consistent with the principles of fundamental justice, expel a suspected terrorist to face torture elsewhere: first from the Canadian perspective; then from the perspective of the international norms that inform s. 7. (i) The Canadian Perspective\n\nThe inquiry at this stage is whether, viewed from a Canadian perspective, returning a refugee to the risk of torture because of security concerns violates the principles of fundamental justice where the deportation is effected for reasons of national security. A variety of phrases have been used to describe conduct that would violate fundamental justice. The most frequent is conduct that would “‘shoc[k]’ the Canadian conscience” (see Kindler, supra, at p. 852, and Burns, supra, at para. 60). Without resorting to opinion polls, which may vary with the mood of the moment, is the conduct fundamentally unacceptable to our notions of fair practice and justice?", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-28", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 50", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "It can be confidently stated that Canadians do not accept torture as fair or compatible with justice. Torture finds no condonation in our Criminal Code ; indeed the Code prohibits it (see, for example, s. 269.1). The Canadian people, speaking through their elected representatives, have rejected all forms of state-sanctioned torture. Our courts ensure that confessions cannot be obtained by threats or force. The last vestiges of the death penalty were abolished in 1998 and Canada has not executed anyone since 1962: see An Act to amend the National Defence Act and to make consequential amendments to other Acts, S.C. 1998, c. 35. In Burns, the then Minister of Justice, in his decision on the order to extradite the respondents Burns and Rafay, emphasized that “in Canada, Parliament has decided that capital punishment is not an appropriate penalty for crimes committed here, and I am firmly committed to that position” (para. 76). While we would hesitate to draw a direct equation between government policy or public opinion at any particular moment and the principles of fundamental justice, the fact that successive governments and Parliaments have refused to inflict torture and the death penalty surely reflects a fundamental Canadian belief about the appropriate limits of a criminal justice system.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-29", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 51", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "When Canada adopted the Charter in 1982, it affirmed the opposition of the Canadian people to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12. A punishment is cruel and unusual if it “is so excessive as to outrage standards of decency”: see R. v. Smith, [1987] 1 S.C.R. 1045, at pp. 1072-73, per Lamer J. (as he then was). It must be so inherently repugnant that it could never be an appropriate punishment, however egregious the offence. Torture falls into this category. The prospect of torture induces fear and its consequences may be devastating, irreversible, indeed, fatal. Torture may be meted out indiscriminately or arbitrarily for no particular offence. Torture has as its end the denial of a person’s humanity; this end is outside the legitimate domain of a criminal justice system: see, generally, E. Scarry, The Body in Pain: The Making and Unmaking of the World (1985), at pp. 27-59. Torture is an instrument of terror and not of justice. As Lamer J. stated in Smith, supra, at pp. 1073-74, “some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment”. As such, torture is seen in Canada as fundamentally unjust.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-30", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 52", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We may thus conclude that Canadians reject government-sanctioned torture in the domestic context. However, this appeal focuses on the prospect of Canada expelling a person to face torture in another country. This raises the question whether s. 7 is implicated at all. On one theory, our inquiry need be concerned only with the Minister’s act of deporting and not with the possible consequences that the expelled refugee may face upon arriving in the destination country. If our s. 7 analysis is confined to what occurs on Canadian soil as a necessary and immediate result of the Minister’s decision, torture does not enter the picture. If, on the other hand, our analysis must take into account what may happen to the refugee in the destination country, we surely cannot ignore the possibility of grievous consequences such as torture and death, if a risk of those consequences is established.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-31", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 53", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We discussed this issue at some length in Burns, supra. In that case, the United States sought the extradition of two Canadian citizens to face aggravated first degree murder charges in the state of Washington. The respondents Burns and Rafay contested the extradition on the grounds that the Minister of Justice had not sought assurances that the death penalty would not be imposed. We rejected the respondents’ argument that extradition in such circumstances would violate their s. 12 right not to be subjected to cruel and unusual treatment or punishment, finding that the nexus between the extradition order and the mere possibility of capital punishment was too remote to engage s. 12. We agreed, however, with the respondents’ argument under s. 7, writing that “[s]ection 7 is concerned not only with the act of extraditing, but also the potential consequences of the act of extradition” (para. 60 (emphasis in original)). We cited, in particular, Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 522, in which La Forest J. recognized that “in some circumstances the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country, may be such that it would violate the principles of fundamental justice to surrender an accused under those circumstances”. In that case, La Forest J. referred specifically to the possibility that a country seeking extradition might torture the accused on return.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-32", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 54–55", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the instant case arises in the context of deportation and not extradition, we see no reason that the principle enunciated in Burns should not apply with equal force here. In Burns, nothing in our s. 7 analysis turned on the fact that the case arose in the context of extradition rather than refoulement. Rather, the governing principle was a general one — namely, that the guarantee of fundamental justice applies even to deprivations of life, liberty or security effected by actors other than our government, if there is a sufficient causal connection between our government’s participation and the deprivation ultimately effected. We reaffirm that principle here. At least where Canada’s participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand.\n\nWe therefore disagree with the Federal Court of Appeal’s suggestion that, in expelling a refugee to a risk of torture, Canada acts only as an “involuntary intermediary” (para. 120). Without Canada’s action, there would be no risk of torture. Accordingly, we cannot pretend that Canada is merely a passive participant. That is not to say, of course, that any action by Canada that results in a person being tortured or put to death would violate s. 7. There is always the question, as there is in this case, of whether there is a sufficient connection between Canada’s action and the deprivation of life, liberty, or security.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-33", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 56–57", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "While this Court has never directly addressed the issue of whether deportation to torture would be inconsistent with fundamental justice, we have indicated on several occasions that extraditing a person to face torture would be inconsistent with fundamental justice. As we mentioned above, in Schmidt, supra, La Forest J. noted that s. 7 is concerned not only with the immediate consequences of an extradition order but also with “the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country” (p. 522). La Forest J. went on to specifically identify the possibility that the requesting country might torture the accused and then to state that “[s]ituations falling far short of this may well arise where the nature of the criminal procedures or penalties in a foreign country sufficiently shocks the conscience as to make a decision to surrender a fugitive for trial there one that breaches the principles of fundamental justice enshrined in s. 7” (p. 522).\n\nA similar view was expressed by McLachlin J. in Kindler, supra. In that case, McLachlin J. wrote that in some instances the “social consensus” as to whether extradition would violate fundamental justice would be clear. “This would be the case if, for instance, the fugitive faced torture on return to his or her home country” (p. 851). Concurring, La Forest J. wrote, similarly, that “[t]here are, of course, situations where the punishment imposed following surrender — torture, for example — would be so outrageous to the values of the Canadian community that the surrender would be unacceptable” (p. 832).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-34", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 58–59", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Canadian jurisprudence does not suggest that Canada may never deport a person to face treatment elsewhere that would be unconstitutional if imposed by Canada directly, on Canadian soil. To repeat, the appropriate approach is essentially one of balancing. The outcome will depend not only on considerations inherent in the general context but also on considerations related to the circumstances and condition of the particular person whom the government seeks to expel. On the one hand stands the state’s genuine interest in combatting terrorism, preventing Canada from becoming a safe haven for terrorists, and protecting public security. On the other hand stands Canada’s constitutional commitment to liberty and fair process. This said, Canadian jurisprudence suggests that this balance will usually come down against expelling a person to face torture elsewhere. (ii) The International Perspective\n\nWe have examined the argument that from the perspective of Canadian law to deport a Convention refugee to torture violates the principles of fundamental justice. However, that does not end the inquiry. The provisions of the Immigration Act dealing with deportation must be considered in their international context: Pushpanathan, supra. Similarly, the principles of fundamental justice expressed in s. 7 of the Charter and the limits on rights that may be justified under s. 1 of the Charter cannot be considered in isolation from the international norms which they reflect. A complete understanding of the Act and the Charter requires consideration of the international perspective.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-35", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 60", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "International treaty norms are not, strictly speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada’s international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-36", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 61", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "It has been submitted by the intervener, Amnesty International, that the absolute prohibition on torture is a peremptory norm of customary international law, or jus cogens. Articles 53 and 64 of the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, provide that existing or new peremptory norms prevail over treaties. Article 53 defines a peremptory norm as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. This raises the question of whether the prohibition on torture is a peremptory norm. Peremptory norms develop over time and by general consensus of the international community. This is the difficulty in interpreting international law; it is often impossible to pinpoint when a norm is generally accepted and to identify who makes up the international community. As noted by L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status (1988), at pp. 723-24: The clarification of the notion of jus cogens in international law is advancing, but is still far from being completed. On the other hand, the international community of States has been inactive in stating expressly which norms it recognizes as peremptory in the present-day international law. In the opinion of the present writer, this inactivity, and the consequent uncertainty as to which norms are peremptory, constitute at present the main problem of the viability of jus cogens. [Emphasis in original.]", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-37", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 62", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the case at bar, there are three compelling indicia that the prohibition of torture is a peremptory norm. First, there is the great number of multilateral instruments that explicitly prohibit torture: see Geneva Convention Relative to the Treatment of Prisoners of War (1949), Can. T.S. 1965 No. 20, p. 84, Article 3; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), Can. T.S. 1965 No. 20, p. 25, Article 3; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), Can. T.S. 1965 No. 20, p. 55, Article 3; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), Can. T.S. 1965 No. 20, p. 163, Article 3; Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, at 71 (1948), Article 5; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 3452 (XXX), UN Doc. A/10034 (1975); International Covenant on Civil and Political Rights (1966), Can. T.S. 1976 No. 47 (“ICCPR”), Article 7; European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), 213 U.N.T.S. 221, Article 3; American Convention on Human Rights (1969), 1144 U.N.T.S. 123, Article 5; African Charter on Human and Peoples’ Rights (1981), 21 I.L.M. 58, Article 5; Universal Islamic Declaration of Human Rights (1981), 9:2 The Muslim World League Journal 25, Article VII.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-38", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 63–64", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, Amnesty International submitted that no state has ever legalized torture or admitted to its deliberate practice and that governments accused of practising torture regularly deny their involvement, placing responsibility on individual state agents or groups outside the government’s control. Therefore, it argues that the weight of these domestic practices is further evidence of a universal acceptance of the prohibition on torture. Counsel for the respondents, while not conceding this point, did not refer this Court to any evidence of state practice to contradict this submission. However, it is noted in most academic writings that most, if not all states have officially prohibited the use of torture as part of their administrative practices, see : Hannikainen, supra, at p. 503.\n\nLast, a number of international authorities state that the prohibition on torture is an established peremptory norm: see Hannikainen, supra, at p. 509; M. N. Shaw, International Law (4th ed. 1997), at pp. 203-4; Prosecutor v. Furundzija, 38 I.L.M. 317 (1999) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, No. IT-95-17/1-T, December 10, 1998); R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827 (H.L.). Others do not explicitly set it out as a peremptory norm; however, they do generally accept that the protection of human rights or humanitarian rights is a peremptory norm: see I. Brownlie, Principles of Public International Law (5th ed. 1998), at p. 515, and C. Emanuelli, Droit international public: Contribution à l’étude du droit international selon une perspective canadienne (1998), at sections 251, 1394 and 1396.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-39", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 65–66", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although this Court is not being asked to pronounce on the status of the prohibition on torture in international law, the fact that such a principle is included in numerous multilateral instruments, that it does not form part of any known domestic administrative practice, and that it is considered by many academics to be an emerging, if not established peremptory norm, suggests that it cannot be easily derogated from. With this in mind, we now turn to the interpretation of the conflicting instruments at issue in this case.\n\nDeportation to torture is prohibited by both the ICCPR, which Canada ratified in 1976, and the CAT, which Canada ratified in 1987. The relevant provisions of the ICCPR read: Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law . . . . 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. . . . While the provisions of the ICCPR do not themselves specifically address the permissibility of a state’s expelling a person to face torture elsewhere, General Comment 20 to the ICCPR makes clear that Article 7 is intended to cover that scenario, explaining that “. . . States parties must not expose individuals to the danger of torture . . . upon return to another country by way of their extradition, expulsion or refoulement” (para. 9).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-40", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 67", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We do not share Robertson J.A.’s view that General Comment 20 should be disregarded because it “contradicts” the clear language of Article 7. In our view, there is no contradiction between the two provisions. General Comment 20 does not run counter to Article 7; rather, it explains it. Nothing would prevent a state from adhering both to Article 7 and to General Comment 20, and General Comment 20 does not detract from rights preserved or provided by Article 7. The clear import of the ICCPR, read together with the General Comment 20, is to foreclose a state from expelling a person to face torture elsewhere.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-41", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 68", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The CAT takes the same stand. The relevant provisions of that document read: Article 1 1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever . . . may be invoked as a justification of torture. Article 3 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. [Emphasis added.] Article 16 2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-42", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 68–70", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The CAT’s import is clear: a state is not to expel a person to face torture, which includes both the physical and mental infliction of pain and suffering, elsewhere.\n\nRobertson J.A., however, held that the CAT’s clear proscription of deportation to torture must defer to Article 33(2) of the Refugee Convention, which permits a country to return (refouler) a refugee who is a danger to the country’s security. The relevant provisions of the Refugee Convention state: Article 33 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership or a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.\n\nArticle 33 of the Refugee Convention appears on its face to stand in opposition to the categorical rejection of deportation to torture in the CAT. Robertson J.A., faced with this apparent contradiction, attempted to read the two conventions in a way that minimized the contradiction, holding that the anti-deportation provisions of the CAT were not binding, but derogable.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-43", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 71", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We are not convinced that the contradiction can be resolved in this way. It is not apparent to us that the clear prohibitions on torture in the CAT were intended to be derogable. First, the absence of an express prohibition against derogation in Article 3 of the CAT together with the “without prejudice” language of Article 16 do not seem to permit derogation. Nor does it follow from the assertion in Article 2(2) of CAT that “[n]o exceptional circumstances . . . may be invoked as a justification of torture”, that the absence of such a clause in the Article 3 refoulement provision permits acts leading to torture in exceptional circumstances. Moreover, the history of Article 16 of the CAT suggests that it was intended to leave the door open to other legal instruments providing greater protection, not to serve as the means for reducing protection. During the deliberations of the Working Group that drafted the CAT, Article 16 was characterized as a “saving clause affirming the continued validity of other instruments prohibiting punishments or cruel, inhuman, or degrading treatment”: Convention against Torture, travaux préparatoires, UN Doc. E/CN.4/1408, at p. 66. This undermines the suggestion that Article 16 can be used as a means of narrowing the scope of protection that the CAT was intended to provide.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-44", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 72–73", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "In our view, the prohibition in the ICCPR and the CAT on returning a refugee to face a risk of torture reflects the prevailing international norm. Article 33 of the Refugee Convention protects, in a limited way, refugees from threats to life and freedom from all sources. By contrast, the CAT protects everyone, without derogation, from state-sponsored torture. Moreover, the Refugee Convention itself expresses a “profound concern for refugees” and its principal purpose is to “assure refugees the widest possible exercise of . . . fundamental rights and freedoms” (Preamble). This negates the suggestion that the provisions of the Refugee Convention should be used to deny rights that other legal instruments make universally available to everyone.\n\nRecognition of the dominant status of the CAT in international law is consistent with the position taken by the UN Committee against Torture, which has applied Article 3(1) even to individuals who have terrorist associations. (The CAT provides for the creation of a Committee against Torture to monitor compliance with the treaty: see CAT, Part II, Articles 17-24.) More particularly, the Committee against Torture has advised that Canada should “[c]omply fully with article 3(1) . . . whether or not the individual is a serious criminal or security risk”: see Committee against Torture, Conclusions and Recommendations of the Committee against Torture: Canada, UN Doc. CAT/C/XXV/Concl.4, at para. 6(a).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-45", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 74–76", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, we note that the Supreme Court of Israel sitting as the High Court of Justice and the House of Lords have rejected torture as a legitimate tool to use in combatting terrorism and protecting national security: H.C. 6536/95, Hat’m Abu Zayda v. Israel General Security Service, 38 I.L.M. 1471 (1999); Rehman, supra, at para. 54, per Lord Hoffmann.\n\nWe conclude that the better view is that international law rejects deportation to torture, even where national security interests are at stake. This is the norm which best informs the content of the principles of fundamental justice under s. 7 of the Charter . (iii) Application to Section 53(1)(b) of the Immigration Act\n\nThe Canadian rejection of torture is reflected in the international conventions to which Canada is a party. The Canadian and international perspectives in turn inform our constitutional norms. The rejection of state action leading to torture generally, and deportation to torture specifically, is virtually categoric. Indeed, both domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to interests on the other side of the balance, even security interests. This suggests that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter . To paraphrase Lord Hoffmann in Rehman, supra, at para. 54, states must find some other way of ensuring national security.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-46", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 77", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Minister is obliged to exercise the discretion conferred upon her by the Immigration Act in accordance with the Constitution. This requires the Minister to balance the relevant factors in the case before her. As stated in Rehman, supra, at para. 56, per Lord Hoffmann: The question of whether the risk to national security is sufficient to justify the appellant’s deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee. Similarly, Lord Slynn of Hadley stated, at para. 16: Whether there is . . . a real possibility [of an adverse effect on the U.K. even if it is not direct or immediate] is a matter which has to be weighed up by the Secretary of State and balanced against the possible injustice to th[e] individual if a deportation order is made. In Canada, the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter . It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-47", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 78–80", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1. (A violation of s. 7 will be saved by s. 1 “only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like”: see Re B.C. Motor Vehicle Act, supra, at p. 518; and New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 99.) Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.\n\nIn these circumstances, s. 53(1)(b) does not violate s. 7 of the Charter . What is at issue is not the legislation, but the Minister’s obligation to exercise the discretion s. 53 confers in a constitutional manner. (b) Are the Terms “Danger to the Security of Canada” and “Terrorism” Unconstitutionally Vague? (i) “Danger to the Security of Canada”\n\nIn order to deny the benefit of s. 53(1) to a person seeking its protection, the Minister must certify that the person constitutes a “danger to the security of Canada”. Suresh argues that this phrase is unconstitutionally vague.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-48", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 81–82", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "A vague law may be unconstitutional for either of two reasons: (1) because it fails to give those who might come within the ambit of the provision fair notice of the consequences of their conduct; or (2) because it fails to adequately limit law enforcement discretion: see R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. In the same case, this Court held that “a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate” (p. 643).\n\nRobertson J.A. found that the phrase “danger to the security of Canada”, which is not defined in the Immigration Act, is not unconstitutionally vague (paras. 56-64). He conceded that the phrase was imprecise but reasoned that whether a person poses a danger to the security of Canada could be determined by “the individual’s degree of association or complicity with a terrorist organization” (para. 63). The government similarly argues that the phrase is not unconstitutionally vague; it contends that the phrase “refer[s] to the possibility that someone’s presence is harmful to national security in terms of the inadmissible classes” listed in s. 19 and referred to in s. 53. It suggests that the phrase can be “interpreted in the light of international law as a whole” and submits that the security of Canada is dependent on the security of other countries. On this interpretation, it need not be shown that the person’s presence in Canada poses a risk here. All that need be shown is that deportation may have a result that, viewed generally, enhances the security of Canada.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-49", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 83–84", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We agree with the government and Robertson J.A. that the phrase “danger to the security of Canada” is not unconstitutionally vague. However, we do not interpret the phrase exactly as he or the government suggests. We would not conflate s. 19’s reference to membership in a terrorist movement with “danger to the security of Canada”. While the two may be related, “danger to the security of Canada”, in our view, must mean something more than just “person described in s. 19”.\n\nWe would also, contrary to the government’s submission, distinguish “danger to the security of Canada” from “danger to the public”, although we recognize that the two phrases may overlap. The latter phrase clearly is intended to address threats to individuals in Canada, but its application is restricted by requiring that any individual who is declared to be a “danger to the public” have been convicted of a serious offence: Immigration Act, s. 53(1)(a), (c), and (d). The government’s suggested reading of “danger to the security of Canada” effectively does an end-run around the requirement in Article 33(2) of the Refugee Convention that no one may be returned (refoulé) as a danger to the community of the country unless he has first been convicted by a final judgment of a particularly serious crime.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-50", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 85", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Subject to these qualifications, we accept that a fair, large and liberal interpretation in accordance with international norms must be accorded to “danger to the security of Canada” in deportation legislation. We recognize that “danger to the security of Canada” is difficult to define. We also accept that the determination of what constitutes a “danger to the security of Canada” is highly fact-based and political in a general sense. All this suggests a broad and flexible approach to national security and, as discussed above, a deferential standard of judicial review. Provided the Minister is able to show evidence that reasonably supports a finding of danger to the security of Canada, courts should not interfere with the Minister’s decision.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-51", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 86", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The question arises whether the Minister must present direct evidence of a specific danger to the security of Canada. It has been argued that under international law the state must prove a connection between the terrorist activity and the security of the deporting country: Hathaway and Harvey, supra, at pp. 289-90. It has also been suggested that the travaux préparatoires to the Refugee Convention indicate that threats to the security of another state were not intended to qualify as a danger sufficient to permit refoulement to torture. Threats to the security of another state were arguably not intended to come within the term, nor were general concerns about terrorism intended to be sufficient: see Refugee Convention, travaux préparatoires, UN Doc. A/CONF.2/SR.16, at p. 8 (“Among the great mass of refugees it was inevitable that some persons should be tempted to engage in activities on behalf of a foreign Power against the country of their asylum, and it would be unreasonable to expect the latter not to safeguard itself against such a contingency”); see A. Grahl-Madsen, Commentary on the Refugee Convention, 1951 (1997), at p. 236 (“‘[T]he security of the country’ is invoked against acts of a rather serious nature endangering directly or indirectly the constitution (Government), the territorial integrity, the independence or the external peace of the country concerned”).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-52", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 87–88", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Whatever the historic validity of insisting on direct proof of specific danger to the deporting country, as matters have evolved, we believe courts may now conclude that the support of terrorism abroad raises a possibility of adverse repercussions on Canada’s security: see Rehman, supra, per Lord Slynn of Hadley, at paras. 16-17. International conventions must be interpreted in the light of current conditions. It may once have made sense to suggest that terrorism in one country did not necessarily implicate other countries. But after the year 2001, that approach is no longer valid.\n\nFirst, the global transport and money networks that feed terrorism abroad have the potential to touch all countries, including Canada, and to thus implicate them in the terrorist activity. Second, terrorism itself is a worldwide phenomenon. The terrorist cause may focus on a distant locale, but the violent acts that support it may be close at hand. Third, preventive or precautionary state action may be justified; not only an immediate threat but also possible future risks must be considered. Fourth, Canada’s national security may be promoted by reciprocal cooperation between Canada and other states in combating international terrorism. These considerations lead us to conclude that to insist on direct proof of a specific threat to Canada as the test for “danger to the security of Canada” is to set the bar too high. There must be a real and serious possibility of adverse effect to Canada. But the threat need not be direct; rather it may be grounded in distant events that indirectly have a real possibility of harming Canadian security.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-53", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 89–90", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the phrase “danger to the security of Canada” must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, the fact remains that to return (refouler) a refugee under s. 53(1)(b) to torture requires evidence of a serious threat to national security. To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act. Insofar as possible, statutes must be interpreted to conform to the Constitution. This supports the conclusion that while “danger to the security of Canada” must be given a fair, large and liberal interpretation, it nevertheless demands proof of a potentially serious threat.\n\nThese considerations lead us to conclude that a person constitutes a “danger to the security of Canada” if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be “serious”, in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-54", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 91–93", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "This definition of “danger to the security of Canada” does not mean that Canada is unable to deport those who pose a risk to individual Canadians, but not the country. A different provision, the “danger to the public” provision, allows the government to deport those who pose no danger to the security of the country per se — those who pose a danger to Canadians, as opposed to a danger to Canada — provided they have committed a serious crime. Moreover, if a refugee is wanted for crimes in a country that will not torture him or her on return, the government may be free to extradite him or her to face those charges, whether or not he or she has committed crimes in Canada.\n\nWe are satisfied that the term “danger to the security of Canada”, defined as here suggested, gives those who might come within the ambit of the provision fair notice of the consequences of their conduct, while adequately limiting law enforcement discretion. We hold, therefore, that the term is not unconstitutionally vague. (ii) “Terrorism”\n\nThe term “terrorism” is found in s. 19 of the Immigration Act, dealing with denial of refugee status upon arrival in Canada. The Minister interpreted s. 19 as applying to terrorist acts post-admission and relied on alleged terrorist associations in Canada in seeking Suresh’s deportation under s. 53(1)(b), which refers to a class of persons falling under s. 19. We do not in these reasons seek to define terrorism exhaustively — a notoriously difficult endeavour — but content ourselves with finding that the term provides a sufficient basis for adjudication and hence is not unconstitutionally vague. We share the view of Robertson J.A. that the term is not inherently ambiguous “even if the full meaning . . . must be determined on an incremental basis” (para. 69).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-55", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 94", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "One searches in vain for an authoritative definition of “terrorism”. The Immigration Act does not define the term. Further, there is no single definition that is accepted internationally. The absence of an authoritative definition means that, at least at the margins, “the term is open to politicized manipulation, conjecture, and polemical interpretation”: factum of the intervener Canadian Arab Federation (“CAF”), at para. 8; see also W. R. Farrell, The U.S. Government Response to Terrorism: In Search of an Effective Strategy (1982), at p. 6 (“The term [terrorism] is somewhat ‘Humpty Dumpty’ — anything we choose it to be”); O. Schachter, “The Extraterritorial Use of Force Against Terrorist Bases” (1989), 11 Houston J. Int’l L. 309, at p. 309 (“[n]o single inclusive definition of international terrorism has been accepted by the United Nations or in a generally accepted multilateral treaty”); G. Levitt, “Is ‘Terrorism’ Worth Defining?” (1986), 13 Ohio N.U. L. Rev. 97, at p. 97 (“The search for a legal definition of terrorism in some ways resembles the quest for the Holy Grail”); C. C. Joyner, “Offshore Maritime Terrorism: International Implications and the Legal Response” (1983), 36 Naval War C. Rev. 16, at p. 20 (terrorism’s “exact status under international law remains open to conjecture and polemical interpretation”); and J. B. Bell, A Time of Terror: How Democratic Societies Respond to Revolutionary Violence (1978), at p. x (“The very word [terrorism] becomes a litmus test for dearly held beliefs, so that a brief conversation on terrorist matters with almost anyone reveals a special world view, an interpretation of the nature of man, and a glimpse into a desired future.”)", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-56", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 95", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Even amongst those who agree on the definition of the term, there is considerable disagreement as to whom the term should be attached: see, e.g., I. M. Porras, “On Terrorism: Reflections on Violence and the Outlaw” (1994), Utah L. Rev. 119, at p. 124 (noting the general view that “terrorism” is poorly defined but stating that “[w]ith ‘terrorism’ . . . everyone means the same thing. What changes is not the meaning of the word, but rather the groups and activities that each person would include or exclude from the list”); D. Kash, “Abductions of Terrorists in International Airspace and on the High Seas” (1993), 8 Fla. J. Int’l L. 65, at p. 72 (“[A]n act that one state considers terrorism, another may consider as a valid exercise of resistance”). Perhaps the most striking example of the politicized nature of the term is that Nelson Mandela’s African National Congress was, during the apartheid era, routinely labelled a terrorist organization, not only by the South African government but by much of the international community.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-57", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 96", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We are not persuaded, however, that the term “terrorism” is so unsettled that it cannot set the proper boundaries of legal adjudication. The recently negotiated International Convention for the Suppression of the Financing of Terrorism, GA Res. 54/109, December 9, 1999, approaches the definitional problem in two ways. First, it employs a functional definition in Article 2(1)(a), defining “terrorism” as “[a]n act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex”. The annex lists nine treaties that are commonly viewed as relating to terrorist acts, such as the Convention for the Suppression of the Unlawful Seizure of Aircraft, Can. T.S. 1972 No. 23, the Convention on the Physical Protection of Nuclear Material, 18 I.L.M. 1419, and the International Convention for the Suppression of Terrorist Bombings, 37 I.L.M. 249. Second, the Convention supplements this offence-based list with a stipulative definition of terrorism. Article 2(1)(b) defines “terrorism” as: Any . . . act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-58", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 97", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "In its submission to this Court, the CAF argued that this Court should adopt a functional definition of terrorism, rather than a stipulative one. The argument is that defining terrorism by reference to specific acts of violence (e.g. “hijacking, hostage taking and terrorist bombing”) would minimize politicization of the term (CAF factum, at paras. 11-14). It is true that the functional approach has received strong support from international law scholars and state representatives — support that is evidenced by the numerous international legal instruments that eschew stipulative definitions in favour of prohibitions on specific acts of violence. While we are not unaware of the danger that the term “terrorism” may be manipulated, we are not persuaded that it is necessary or advisable to altogether eschew a stipulative definition of the term in favour of a list that may change over time and that may in the end necessitate distinguishing some (proscribed) acts from other (non-proscribed) acts by reliance on a term like “terrorism”. (We note that the CAF, in listing acts, at para. 11, that might be prohibited under a functional definition, lists “terrorist bombing” — a category that clearly would not avoid the necessity of defining “terrorism”.)", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-59", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 98–99", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "In our view, it may safely be concluded, following the International Convention for the Suppression of the Financing of Terrorism, that “terrorism” in s. 19 of the Act includes any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”. This definition catches the essence of what the world understands by “terrorism”. Particular cases on the fringes of terrorist activity will inevitably provoke disagreement. Parliament is not prevented from adopting more detailed or different definitions of terrorism. The issue here is whether the term as used in the Immigration Act is sufficiently certain to be workable, fair and constitutional. We believe that it is. (iii) Conclusion\n\nWe conclude that the terms “danger to the security of Canada” and “terrorism” are not unconstitutionally vague. Applying them to the facts found in this case, they would prima facie permit the deportation of Suresh provided the Minister certifies him to be a substantial danger to Canada and provided he is found to be engaged in terrorism or a member of a terrorist organization as set out in s. 19(1)(e) and (f) of the Immigration Act. (c) Does Deportation for Membership in a Terrorist Organization Unjustifiably Violate the Charter Guarantees of Freedom of Expression and Freedom of Association?", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-60", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 100–101", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Suresh argues that the Minister’s issuance of the certificate under s. 40.1 of the Immigration Act and the order declaring him a danger to the security of Canada under s. 53(1)(b) on the ground that he was a member of the LTTE violate his Charter rights of free expression and free association and cannot be justified. He points out that he has not been involved in actual terrorist activity in Canada, but merely in fund-raising and support activities that may, in some part, contribute to the civil war efforts of Tamils in Sri Lanka. He also points out that it is not a criminal offence to belong to such an organization and that the government seeks to deport him for something that Canadian citizens may lawfully do without sanction. He suggests that inclusion of mere membership in an organization that has been or will be involved in acts of terrorism unjustifiably limits the freedom of Convention refugees to express their views on dissident movements outside the country, as well as their freedom to associate with other people in Canada who come from similar backgrounds. He points out that the alleged terrorist organizations he was found to have been a member of are engaged in many positive endeavours to improve the lives of people in Canada and are not involved in violence here.\n\nThe government, for its part, argues that support of organizations that have engaged in or may assist terrorism is not constitutionally protected expression or association. It argues that constitutional rights cannot be extended to inflict harm on others. This is so, in the government’s submission, even though many of the activities of the organization may be laudable. Accordingly, it says, ss. 2( b ) and 2( d ) of the Charter do not apply.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-61", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 102–103", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 19 of the Immigration Act applies to the entry of refugees into Canada. The Refugee Convention, and following it the Immigration Act, distinguish between the power of a state to refuse entry to a refugee, and its power to deport or “refouler” the refugee once the refugee is established in the country as a Convention refugee. The powers of a state to refuse entry are broader than to deport. The broader powers to refuse entry are based inter alia on the need to prevent criminals escaping justice in their own country from entering into Canada. No doubt the natural desire of states to reject unsuitable persons who by their conduct have put themselves “beyond the pale” also is a factor. See, generally, Hathaway and Harvey, supra.\n\nThe main purport of s. 19(1) is to permit Canada to refuse entry to persons who are or have been engaged in terrorism or who are or have been members of terrorist organizations. However, the Immigration Act uses s. 19(1) in a second and different way. It uses it in s. 53(1), the deportation section, to define the class of Convention refugees who may be deported because they constitute a danger to the security of Canada. Thus a Convention refugee like Suresh may be deported if he comes within a class of persons defined in s. 19(1) and constitutes a danger to the security of Canada.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-62", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 104–106", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "At this point, an ambiguity in the combination of ss. 53 and 19 arises. Is the class of persons designated by the reference to s. 19 those persons who at entry were or had been associated with terrorist acts or members of terrorist organizations? Or was Parliament’s intention to include those who after entry committed terrorist acts or were members of terrorist organizations? The Minister interprets s. 19, as incorporated into s. 53, as including conduct of refugees after entry.\n\nWe do not find it necessary to resolve this ambiguity, as in our opinion on either interpretation, s. 19 as incorporated into s. 53 does not breach the rights of free expression and association guaranteed by ss. 2( b ) and 2( d ) of the Charter . If s. 19 , as used in s. 53 , is interpreted as referring only to conduct prior to the point of entry, no constitutional problem arises. On the other hand, if it is interpreted as referring to post-entry conduct, we are satisfied that the conduct caught by the section, interpreted properly by the Minister, fails to attract constitutional protection because it would be conduct associated with violent activity.\n\nSection 53, as discussed earlier in connection with deportation to face torture, requires the Minister to balance a variety of factors relating on the one hand to concerns of national security, and to fair process to the Convention refugee on the other. In balancing these factors, the Minister must exercise her discretion in conformity with the values of the Charter .", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-63", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 107–108", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is established that s. 2 of the Charter does not protect expressive or associational activities that constitute violence: Keegstra, supra. This Court has, it is true, given a broad interpretation to freedom of expression, extending it, for example, to hate speech and perhaps even threats of violence: Keegstra; R. v. Zundel, [1992] 2 S.C.R. 731. At the same time, the Court has made plain that the restriction of such expression may be justified under s. 1 of the Charter : see Keegstra, at pp. 732-33. The effect of s. 2(b) and the justification analysis under s. 1 of the Charter suggest that expression taking the form of violence or terror, or directed towards violence or terror, is unlikely to find shelter in the guarantees of the Charter .\n\nThe Minister’s discretion to deport under s. 53 of the Immigration Act is confined, on any interpretation of the section, to persons who have been engaged in terrorism or are members of terrorist organizations, and who also pose a threat to the security of Canada. Persons associated with terrorism or terrorist organizations — the focus of this argument — are, on the approach to terrorism suggested above, persons who are or have been associated with things directed at violence, if not violence itself. It follows that so long as the Minister exercises her discretion in accordance with the Act, there will be no ss. 2( b ) or (d) Charter violation.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-64", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 109", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Suresh argues that s. 19 is so broadly drafted that it has the potential to catch persons who are members of or participate in the activities of a terrorist organization in ignorance of its terrorist activities. He points out that many organizations alleged to support terrorism also support humanitarian aid both in Canada and abroad. Indeed, he argues that this is so of the LTTE, the association to which he is alleged to belong. While it seems clear on the evidence that Suresh was not ignorant of the LTTE’s terrorist activities, he argues that it may be otherwise for others who were members or contributed to its activities. Thus without knowingly advocating terrorism and violence, they may be found to be part of the organization and hence subject to deportation. This, he argues, would clearly violate ss. 2( b ) and 2( d ) of the Charter .", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-65", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 110–112", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We believe that it was not the intention of Parliament to include in the s. 19 class of suspect persons those who innocently contribute to or become members of terrorist organizations. This is supported by the provision found at the end of s. 19, which exempts from the s. 19 classes “persons who have satisfied the Minister that their admission would not be detrimental to the national interest”. Section 19 must therefore be read as permitting a refugee to establish that his or her continued residence in Canada will not be detrimental to Canada, notwithstanding proof that the person is associated with or is a member of a terrorist organization. This permits a refugee to establish that the alleged association with the terrorist group was innocent. In such case, the Minister, exercising her discretion constitutionally, would find that the refugee does not fall within the targeted s. 19 class of persons eligible for deportation on national security grounds.\n\nIt follows that the appellant has not established that s. 53’s reference to s. 19 unjustifiably violates his Charter rights of freedom of expression and freedom of association. Moreover, since there is no s. 2 violation, there is no basis to interfere with the s. 40.1 certificate that was issued in October 1995.\n\nThis brings us to Suresh’s final argument, that the process by which the Minister assessed the risk of torture he faces should he be returned to Sri Lanka was flawed and violated his constitutional rights by unjustly exposing him to the risk of torture. 3. Are the Procedures for Deportation Set Out in the Immigration Act Constitutionally Valid?", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-66", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 113", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "This appeal requires us to determine the procedural protections to which an individual is entitled under s. 7 of the Charter . In doing so, we find it helpful to consider the common law approach to procedural fairness articulated by L’Heureux-Dubé J. in Baker, supra. In elaborating what is required by way of procedural protection under s. 7 of the Charter in cases of this kind, we wish to emphasize that our proposals should be applied in a manner sensitive to the context of specific factual situations. What is important are the basic principles underlying these procedural protections. The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty. As Professor Hogg has said, “The common law rules [of procedural fairness] are in fact basic tenets of the legal system, and they have evolved in response to the same values and objectives as s. 7”: see P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.) vol. 2, at para. 44.20. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13, Wilson J. recognized that the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness. Section 7 protects substantive as well as procedural rights: Re B.C. Motor Vehicle Act, supra. Insofar as procedural rights are concerned, the common law doctrine summarized in Baker, supra, properly recognizes the ingredients of fundamental justice.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-67", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 114", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We therefore find it appropriate to look to the factors discussed in Baker in determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of s. 7. In saying this, we emphasize that, as is the case for the substantive aspects of s. 7 in connection with deportation to torture, we look to the common law factors not as an end in themselves, but to inform the s. 7 procedural analysis. At the end of the day, the common law is not constitutionalized; it is used to inform the constitutional principles that apply to this case.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-68", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 115", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "What is required by the duty of fairness — and therefore the principles of fundamental justice — is that the issue at hand be decided in the context of the statute involved and the rights affected: Baker, supra, at para. 21; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J. More specifically, deciding what procedural protections must be provided involves consideration of the following factors: (1) the nature of the decision made and the procedures followed in making it, that is, “the closeness of the administrative process to the judicial process”; (2) the role of the particular decision within the statutory scheme; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and (5) the choice of procedure made by the agency itself: Baker, supra, at paras. 23-27. This is not to say that other factors or considerations may not be involved. This list of factors is non-exhaustive in determining the common law duty of fairness: Baker, supra, at para. 28. It must necessarily be so in determining the procedures demanded by the principles of fundamental justice.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-69", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 116–117", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The nature of the decision to deport bears some resemblance to judicial proceedings. While the decision is of a serious nature and made by an individual on the basis of evaluating and weighing risks, it is also a decision to which discretion must attach. The Minister must evaluate not only the past actions of and present dangers to an individual under her consideration pursuant to s. 53, but also the future behaviour of that individual. We conclude that the nature of the decision militates neither in favour of particularly strong, nor particularly weak, procedural safeguards.\n\nThe nature of the statutory scheme suggests the need for strong procedural safeguards. While the procedures set up under s. 40.1 of the Immigration Act are extensive and aim to ensure that certificates under that section are issued fairly and allow for meaningful participation by the person involved, there is a disturbing lack of parity between these protections and the lack of protections under s. 53(1)(b). In the latter case, there is no provision for a hearing, no requirement of written or oral reasons, no right of appeal — no procedures at all, in fact. As L’Heureux-Dubé J. stated in Baker, supra, “[g]reater procedural protections . . . will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted” (para. 24). This is particularly so where, as here, Parliament elsewhere in the Act has constructed fair and systematic procedures for similar measures.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-70", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 118–119", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The third factor requires us to consider the importance of the right affected. As discussed above, the appellant’s interest in remaining in Canada is highly significant, not only because of his status as a Convention refugee, but also because of the risk of torture he may face on return to Sri Lanka as a member of the LTTE. The greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter . Deportation from Canada engages serious personal, financial and emotional consequences. It follows that this factor militates in favour of heightened procedural protections under s. 53(1)( b ) . Where, as here, a person subject to a s. 53(1)( b ) opinion may be subjected to torture, this factor requires even more substantial protections.\n\nAs discussed above, Article 3 of the CAT, which explicitly prohibits the deportation of persons to states where there are “substantial grounds” for believing that the person would be “in danger of being subjected to torture”, informs s. 7 of the Charter . It is only reasonable that the same executive that bound itself to the CAT intends to act in accordance with the CAT’s plain meaning. Given Canada’s commitment to the CAT, we find that the appellant had the right to procedural safeguards, at the s. 53(1)( b ) stage of the proceedings. More particularly, the phrase “substantial grounds” raises a duty to afford an opportunity to demonstrate and defend those grounds.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-71", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 120–121", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The final factor we consider is the choice of procedures made by the agency. In this case, the Minister is free under the terms of the statute to choose whatever procedures she wishes in making a s. 53(1)(b) decision. As noted above, the Minister must be allowed considerable discretion in evaluating future risk and security concerns. This factor also suggests a degree of deference to the Minister’s choice of procedures since Parliament has signaled the difficulty of the decision by leaving to the Minister the choice of how best to make it. At the same time, this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees like Suresh, who if deported may face torture and violations of human rights in which Canada can neither constitutionally, nor under its international treaty obligations, be complicit.\n\nWeighing these factors together with all the circumstances, we are of the opinion that the procedural protections required by s. 7 in this case do not extend to the level of requiring the Minister to conduct a full oral hearing or a complete judicial process. However, they require more than the procedure required by the Act under s. 53(1)(b) — that is, none — and they require more than Suresh received.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-72", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 122", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We find that a person facing deportation to torture under s. 53(1)(b) must be informed of the case to be met. Subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents, this means that the material on which the Minister is basing her decision must be provided to the individual, including memoranda such as Mr. Gautier’s recommendation to the Minister. Furthermore, fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister. While the Minister accepted written submissions from the appellant in this case, in the absence of access to the material she was receiving from her staff and on which she based much of her decision, Suresh and his counsel had no knowledge of which factors they specifically needed to address, nor any chance to correct any factual inaccuracies or mischaracterizations. Fundamental justice requires that written submissions be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her. The Minister must then consider these submissions along with the submissions made by the Minister’s staff.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-73", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 123–124", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "Not only must the refugee be informed of the case to be met, the refugee must also be given an opportunity to challenge the information of the Minister where issues as to its validity arise. Thus the refugee should be permitted to present evidence pursuant to s. 19 of the Act showing that his or her continued presence in Canada will not be detrimental to Canada, notwithstanding evidence of association with a terrorist organization. The same applies to the risk of torture on return. Where the Minister is relying on written assurances from a foreign government that a person would not be tortured, the refugee must be given an opportunity to present evidence and make submissions as to the value of such assurances.\n\nIt may be useful to comment further on assurances. A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-74", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 125–126", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "In evaluating assurances by a foreign government, the Minister may also wish to take into account the human rights record of the government giving the assurances, the government’s record in complying with its assurances, and the capacity of the government to fulfill the assurances, particularly where there is doubt about the government’s ability to control its security forces. In addition, it must be remembered that before becoming a Convention refugee, the individual involved must establish a well-founded fear of persecution (although not necessarily torture) if deported.\n\nThe Minister must provide written reasons for her decision. These reasons must articulate and rationally sustain a finding that there are no substantial grounds to believe that the individual who is the subject of a s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment, so long as the person under consideration has raised those arguments. The reasons must also articulate why, subject to privilege or valid legal reasons for not disclosing detailed information, the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition, the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. Gautier. Mr. Gautier’s report, explaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor’s brief than a statement of reasons for a decision.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-75", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 127", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "These procedural protections need not be invoked in every case, as not every case of deportation of a Convention refugee under s. 53(1)(b) will involve risk to an individual’s fundamental right to be protected from torture or similar abuses. It is for the refugee to establish a threshold showing that a risk of torture or similar abuse exists before the Minister is obliged to consider fully the possibility. This showing need not be proof of the risk of torture to that person, but the individual must make out a prima facie case that there may be a risk of torture upon deportation. If the refugee establishes that torture is a real possibility, the Minister must provide the refugee with all the relevant information and advice she intends to rely on, provide the refugee an opportunity to address that evidence in writing, and after considering all the relevant information, issue responsive written reasons. This is the minimum required to meet the duty of fairness and fulfill the requirements of fundamental justice under s. 7 of the Charter .", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-76", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 128", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Minister argues that even if the procedures used violated Suresh’s s. 7 rights, that violation is justified as a reasonable limit under s. 1 of the Charter . Despite the legitimate purpose of s. 53(1)(b) of the Immigration Act in striking a balance between the need to fulfil Canada’s commitments with respect to refugees and the maintenance of the safety and good order of Canadian society, the lack of basic procedural protections provided to Suresh cannot be justified by s. 1 in our view. Valid objectives do not, without more, suffice to justify limitations on rights. The limitations must be connected to the objective and be proportional. Here the connection is lacking. A valid purpose for excepting some Convention refugees from the protection of s. 53(1) of the Act does not justify the failure of the Minister to provide fair procedures where this exception involves a risk of torture upon deportation. Nor do the alleged fundraising activities of Suresh rise to the level of exceptional conditions contemplated by Lamer J. in Re B.C. Motor Vehicle Act, supra. Consequently, the issuance of a s. 53(1)(b) opinion relating to him without the procedural protections mandated by s. 7 is not justified under s. 1. 4. Should the Minister’s Order Be Set Aside and a New Hearing Ordered?", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-77", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "paras 129–130", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "We conclude that generally to deport a refugee, where there are grounds to believe that this would subject the refugee to a substantial risk of torture, would unconstitutionally violate the Charter ’s s. 7 guarantee of life, liberty and security of the person. This said, we leave open the possibility that in an exceptional case such deportation might be justified either in the balancing approach under ss. 7 or 1 of the Charter . We reject the argument that the terms “danger to the security of Canada” and “terrorism” are unconstitutionally vague. We also reject the argument that s. 53 , by its reference to s. 19 , unconstitutionally violates the Charter guarantees of freedom of expression and association. Finally, we conclude that the procedures for deportation under the Immigration Act, when applied in accordance with the safeguards outlined in these reasons, are constitutional.\n\nApplying these conclusions in the instant case, we find that Suresh made a prima facie showing that he might be tortured on return if expelled to Sri Lanka. Accordingly, he should have been provided with the procedural safeguards necessary to protect his s. 7 right not to be expelled to torture. He was not provided the required safeguards. We therefore remand the case to the Minister for reconsideration in accordance with the procedures set out in these reasons. V. Conclusion", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-78", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 131", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appeal is allowed with costs throughout on a party and party basis. The constitutional questions are answered as follows: 1. Does s. 53(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2, offend s. 7 of the Canadian Charter of Rights and Freedoms to the extent that it does not prohibit the Minister of Citizenship and Immigration from removing a person from Canada to a country where the person may face a risk of torture? Answer: No. 2. If the answer to question 1 is in the affirmative, is s. 53(1)(b) of the Immigration Act a reasonable limit within the meaning of s. 1 of the Charter on the rights of a person who may face a risk of torture if removed to a particular country? Answer: It is not necessary to answer this question. 3. Do ss. 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the Immigration Act infringe the freedoms guaranteed under ss. 2( b ) and 2( d ) of the Charter ? Answer: Section 19(1) of the Immigration Act, as incorporated by s. 53(1), does not infringe ss. 2( b ) and 2( d ) of the Charter . 4. If the answer to question 3 is in the affirmative, are ss. 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the Immigration Act a reasonable limit on the rights of a person within the meaning of s. 1 of the Charter ? Answer: It is not necessary to answer this question. 5. Is the term “danger to the security of Canada” found in s. 53(1)(b) of the Immigration Act and/or the term “terrorism” found in s. 19(1)(e) and (f) of the Immigration Act void for vagueness and therefore contrary to the principles of fundamental justice under s. 7 of the Charter ? Answer: No. 6. If the answer to question 5 is in the affirmative, are ss. 53(1)(b) and/or s. 19(1)(e) and (f) of the Immigration Act a reasonable limit on the rights of a person within the meaning of s.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-1937-79", - "doc_type": "caselaw", - "act_code": "2002 SCC 1", - "act_short": "Suresh", - "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", - "marginal_note": "para 131", - "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", - "part": "Supreme Court of Canada", - "division": "", - "text": "1 of the Charter ? Answer: It is not necessary to answer this question. Appeal allowed with costs.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 3", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" - }, - { - "id": "scc-17759-1", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 1–2", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The writ of habeas corpus is an ancient legal remedy that remains fundamental to individual liberty and the rule of law today. Dating back to the 13th century, this writ guarantees the individual’s protection from unlawful deprivations of liberty. Entrenched in s. 10( c ) of the Canadian Charter of Rights and Freedoms , the right to habeas corpus permits those in detention to go before a provincial superior court and demand to know whether the detention is justified in law. If the relevant authority cannot provide sufficient justification, the person must be released.\n\nDespite the importance of habeas corpus, this Court has carved out two limited exceptions to its availability. First, a provincial superior court should decline jurisdiction to entertain an application for habeas corpus where a prisoner is using the application to attack the legality of their conviction or sentence, as this is properly accomplished through the ordinary appeal mechanisms set out in the Criminal Code , R.S.C. 1985, c. C-46 (see R. v. Gamble, [1988] 2 S.C.R. 595, at pp. 636-37). Second, a provincial superior court should also decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 40). This second exception has come to be known as the Peiroo exception (see Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253 (C.A.)).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-2", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 3–6", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case, Mr. Chhina applied for habeas corpus, arguing that his immigration detention had become unlawful under the Charter because of its length and uncertain duration. He also challenged his detention on the basis that he was being held in inappropriate lockdown conditions at a maximum security unit.\n\nThis Court must determine whether the Alberta Court of Queen’s Bench erred in declining its jurisdiction to entertain Mr. Chhina’s application for habeas corpus on the basis that the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA ), satisfies the second exception.\n\nThe parties do not contest that the statutory scheme set out in the IRPA provides a complete, comprehensive and expert procedure for the review of immigration matters generally. This was the conclusion reached by the Ontario Court of Appeal in Peiroo. What this case emphasizes, however, is that the determination of whether such a scheme is as broad and advantageous as habeas corpus must be considered with respect to the particular basis upon which the lawfulness of the detention is challenged.\n\nTherefore, the Peiroo exception does not bar habeas corpus applications with respect to all deprivations of liberty arising from the immigration scheme. Rather the question here is whether the IRPA provides a review procedure that is at least as broad and advantageous as habeas corpus regarding the specific challenges to the legality of the detention raised by the habeas corpus application.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-3", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 7–9", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, it does not. Mr. Chhina did not challenge his immigration status, deportation order or detention order as failing to respect the IRPA . Rather, he claimed that his continued detention had become unlawful because its length, conditions and uncertain duration violated his Charter rights. The IRPA does not provide for review that is at least as broad and advantageous as habeas corpus for such matters. Mr. Chhina was therefore entitled to have his application for habeas corpus heard by a judge of the Alberta Court of Queen’s Bench. II. Background\n\nThe respondent, Tusif Chhina, entered Canada under another name in December 2006 and obtained refugee status approximately two years later. In February 2012, Mr. Chhina’s refugee status was vacated and he was declared inadmissible to Canada due to both misrepresentations in his refugee application and his involvement in criminal activity. A deportation order was issued against him.\n\nFollowing time spent in criminal custody, Mr. Chhina was taken into immigration detention in April 2013. However, in light of delays in obtaining travel documents from Pakistan, Mr. Chhina was released with conditions seven months later. Mr. Chhina failed to respect his conditions and disappeared for a year, but he was eventually taken back into immigration custody in November 2015. He was detained in the Calgary Remand Centre, a maximum security unit which keeps inmates on lockdown 22 and a half hours a day. Pursuant to s. 57 of the IRPA , immigration officials reviewed Mr. Chhina’s detention on a monthly basis, each time upholding the decision that he should be detained.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-4", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 10–12", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Chhina filed his habeas corpus application in May 2016, arguing that his immigration detention had become unlawful both because it had become lengthy and indeterminate and because the conditions of his detention were “inappropriate” (Court of Queen’s Bench of Alberta Reasons, No. 160576914X1, September 2, 2016 (unreported), at p. 2). At the time of his application before the Alberta Court of Queen’s Bench, he had spent a total of 13 months in immigration detention.\n\nThe chambers judge declined jurisdiction to consider Mr. Chhina’s application for habeas corpus, citing the IRPA as a comprehensive legislative framework that would satisfy the Peiroo exception.\n\nThe Alberta Court of Appeal (2017 ABCA 248, 56 Alta. L.R. (6th) 1) reversed that decision, holding that the chambers judge should have exercised his discretion to hear Mr. Chhina’s habeas corpus application. Given the importance of the writ, the court noted that exceptions to the availability of habeas corpus must be limited and well-defined. As such, a chambers judge should decline to hear habeas corpus applications only in limited circumstances, beyond which the decision to decline jurisdiction constitutes an error of law.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-5", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 13–14", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "While acknowledging the holding in Peiroo, Greckol J.A., writing for the court, concluded that the exception does not bar habeas corpus applications in all immigration-related matters. She distinguished Mr. Chhina’s challenge noting that, unlike the applicant in Peiroo, Mr. Chhina did not contest determinations regarding his inadmissibility or deportation. Instead, he challenged the legality of his detention, incidental to those determinations, on Charter grounds. The outcome of Mr. Chhina’s habeas corpus application would have no effect on his immigration status or deportation order but, if successful, would affect his immediate liberty.\n\nThrough this lens, Greckol J.A. saw clear differences between the review and relief available via the IRPA process as compared to an application for habeas corpus, finding the latter broader and more advantageous where the challenge related to the length and indeterminate nature of the detention. As such, the Peiroo exception did not apply to Mr. Chhina’s case and the matter was remitted to the Court of Queen’s Bench for a hearing on the merits of the habeas corpus application.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-6", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 15–16", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Travel documents were subsequently obtained for Mr. Chhina and he was removed from Canada in September 2017. Thus, the arguments regarding his detention are now moot. But as Mr. Chhina’s case illustrates, habeas corpus applications are often evasive of review, as the shifting factual circumstances frequently render the application moot before appellate review can be obtained (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 14). Given the importance of clearly delineating the exceptions to habeas corpus, it is appropriate for this Court to consider the legal issues raised by Mr. Chhina’s appeal notwithstanding its mootness. No party has objected to this Court doing so. III. Issues\n\nThis appeal concerns the scope and application of the Peiroo exception, providing the Court with an opportunity to clarify when a complete, comprehensive and expert statutory scheme provides for review that is as broad and advantageous as habeas corpus such that an applicant will be precluded from bringing an application for habeas corpus.[1] IV. Analysis", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-7", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 17", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Provincial superior courts have inherent jurisdiction to hear habeas corpus applications (May, at para. 29). An application for habeas corpus requires the applicant to establish a deprivation of liberty and to raise a legitimate ground for questioning the legality of that deprivation. If this is accomplished, the onus then shifts to the authority in question to show that the deprivation of liberty is lawful. In order for detention to be lawful, the decision-maker must have authority to order detention, the decision-making process must be fair, and the decision to detain must be both reasonable and compliant with the Charter (May, at para. 77; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 72). Changes in conditions or orders leading to further deprivations of liberty may also be challenged in the same manner. Where, as here, the application is brought with certiorari in aid, the court hearing the application conducts its review on the basis of the record that resulted in the decision (J. Farbey, R. J. Sharpe and S. Atrill, The Law of Habeas Corpus (3rd ed. 2011), at p. 45; Mission Institution v. Khela, at para. 35; R. v. Miller, [1985] 2 S.C.R. 613, at p. 624).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-8", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 18–19", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The writ of habeas corpus is not a discretionary remedy; it issues as of right where the applicant successfully challenges the legality of a detention. A provincial superior court may not decline jurisdiction to hear such an application merely because alternative remedies are available (May, at paras. 34 and 44). Such a court may only decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (May, at para. 40; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 65). As Mr. Chhina’s case illustrates, this analysis must be undertaken regarding the nature of the specific challenge to the legality of the detention raised in the habeas corpus application.\n\nHabeas corpus — which roughly translates to “produce the body” — was a familiar phrase in 13th century English civil procedure; it required the defendant of an action to be brought physically before the court (Farbey, Sharpe and Atrill, at p. 2). During the 15th and 16th centuries, habeas corpus took on its modern form, permitting an applicant to demand justification for their detention (at p. 4) and becoming the “great and efficacious writ in all manner of illegal confinement” (W. Blackstone, Commentaries on the Laws of England, Book III: Of Private Wrongs (2016), by T. P. Gallanis, at p. 89). Habeas corpus has never been “a static, narrow, formalistic remedy”; rather, over the centuries, it “has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty” (May, at para. 21, citing Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-9", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 20–22", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Habeas corpus continues to hold a vital and distinguished place in Canada’s modern legal landscape. Before the advent of the Charter , s. 2 of the Canadian Bill of Rights , S.C. 1960, c. 44 , established that no law of Canada would be construed or applied so as to deprive a person of a determination on the validity of their detention, and provided for release where that detention was found to be unlawful. In 1982, habeas corpus became a constitutional right entrenched in s. 10( c ) of the Charter : 10. Everyone has the right on arrest or detention . . . (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.\n\nThe review of legality under habeas corpus is broad, often protecting and interacting with other Charter rights, including: the right to life, liberty and security of the person, as guaranteed by s. 7; the right not to be arbitrarily detained or imprisoned, as guaranteed by s. 9; and the right not to be subjected to any cruel and unusual treatment or punishment, as guaranteed by s. 12.\n\nThe case of Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, helpfully illustrates different circumstances in which a deprivation of liberty may arise, and thus, different ways in which a detention may be challenged. A deprivation of liberty may relate to (1) the initial decision requiring the detention; or to a further deprivation of liberty based on (2) a change in the conditions of the detention; or (3) the continuation of the detention.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-10", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 23–24", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "While not exhaustive, this list may be particularly helpful in pinpointing the nature of a challenge to a deprivation of liberty for reasons beyond those underlying an initial order. As I shall explore in more detail below, these three categories can assist in explaining the relevant case-law. For example, in the immigration context, a finding of inadmissibility may lead to a detention order that constitutes an initial deprivation of liberty: this is the first Dumas category (Peiroo). The transfer of prisoners from a lower to a higher security institution is emblematic of the second type of deprivation: a change in circumstances resulting in an additional deprivation of liberty (May). The third type of deprivation outlined in Dumas can speak to extended detentions or detentions of uncertain duration, which may engage ss. 7 and 9 of the Charter , as was argued here (and in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401, and Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220).\n\nRegardless of how a deprivation of liberty arises, the importance of the “great writ of liberty” underlies the general rule that exceptions to the availability of habeas corpus must be limited and carefully defined.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-11", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 25–26", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "To date, this Court has recognized only two instances where a provincial superior court may decline to hear a habeas corpus application. The first allows a provincial superior court to decline jurisdiction where a prisoner seeks to attack the legality of their conviction or sentence, determinations properly challenged through the appeal mechanisms set out in the Criminal Code (Gamble, at p. 636). The second exception arose in the field of immigration law. In Peiroo, the applicant sought issuance of a writ of habeas corpus with certiorari in aid, contesting a finding that there was no credible basis for her refugee claim and arguing that there was therefore no basis for a removal order issued against her. The Ontario Court of Appeal found that the Immigration Act, R.S.C. 1985, c. I-2, then in force established a comprehensive scheme regulating the determination and review of immigration claims in a manner that was “as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid” (Peiroo, at p. 261).\n\nBoth of these exceptions acknowledge the development of sophisticated procedural vehicles in our modern legal system and their ability to fully protect fundamental rights such as habeas corpus.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-12", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 27–28", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Statutory appeals in criminal matters, previously circumscribed by the common law writs of certiorari and error, were introduced some 500 years after habeas corpus (V. M. Del Buono, “The Right to Appeal in Indictable Cases: A Legislative History” (1978), 16 Alta. L.R. 446, at p. 448). Although the Court affirmed the Criminal Code exception in the context of a Charter challenge in Gamble, the rule pre-empting habeas corpus applications where a statutory appeal is available long pre-dates the Charter (see: In re Trepanier (1885), 12 S.C.R. 111; In re Sproule (1886), 12 S.C.R. 140, at p. 204; Goldhar v. The Queen, [1960] S.C.R. 431, at p. 439; Morrison v. The Queen, [1966] S.C.R. 356; Karchesky v. The Queen, [1967] S.C.R. 547, at p. 551; Korponay v. Kulik, [1980] 2 S.C.R. 265).\n\nThe IRPA , for its part, is a product of the rise of the modern administrative state: a parallel justice system established alongside the courts of law to provide accessible, expert, and expeditious adjudication of a broad spectrum of claims. For example, the decision in Pringle v. Fraser, [1972] S.C.R. 821, holding that the Immigration Act, R.S.C. 1952, c. 325, ousted provincial superior court jurisdiction to entertain a writ of certiorari, was an early recognition of the possibility that a legislature could create alternative avenues of review through administrative bodies.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-13", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 29–31", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Both of these exceptions target similar concerns, primarily the “need to restrict the growth of collateral methods of attacking convictions or other deprivations of liberty” (May, at para. 35). By affirming such statutory schemes, the standard set out in May ensures the constitutional right to habeas corpus is protected, while also realizing judicial economy, avoiding duplicative proceedings, and reducing the possibility of inconsistent decisions and forum shopping.\n\nAt issue in this appeal is the scope of the Peiroo exception and, more specifically, whether that exception precludes habeas corpus for all determinations made under immigration legislation. The appellant argues that it does, pointing to this Court’s description of the Peiroo exception in May, where we stated: “in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded” (May, at para. 40).\n\nIn my view, this statement was never intended to preclude habeas corpus review of every detention arising in the immigration context, whatever the nature of the challenge to the legality of the detention. I do not see May as standing for such a broad proposition. I say this for three reasons.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-14", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 32", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, the IRPA was not before the Court in May. In that case, a number of federal prisoners who were transferred from minimum to medium-security institutions brought habeas corpus applications to challenge this transfer to a more restrictive form of custody. The warden of the institution argued that the Corrections and Conditional Release Act , S.C. 1992, c. 20 (CCRA ), set out a comprehensive statutory scheme that provided effective remedies comparable to habeas corpus — a proposition this Court did not accept. In that context, the Court compared the CCRA not to the IRPA (although it was then in force), but rather to the Immigration Act considered in Peiroo. The Court concluded that, unlike the immigration scheme, the corrections statute did not guarantee impartial review, articulate specific and effective remedies, or even provide clear grounds upon which transfer decisions could be reviewed (May, at para. 62).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-15", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 33–34", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, the jurisprudence relied on by the Court in May — Peiroo, Pringle, and Reza v. Canada, [1994] 2 S.C.R. 394, — did not stand for the broad proposition that habeas corpus will never be available where the detention is related to immigration matters. May must be understood in light of the cases cited; the Court did not purport to extend their holdings. Neither Pringle nor Reza dealt specifically with habeas corpus. Pringle was concerned with certiorari, a writ which, unlike habeas corpus, is not constitutionally protected. Reza did not involve an application for habeas corpus, but a challenge to the constitutionality of the Immigration Act on other grounds. Even Peiroo did not provide that habeas corpus could never lie in the immigration context. It simply determined that the Immigration Act then in force was “as broad as or broader” than habeas corpus for “immigration matters” like Ms. Peiroo’s claim. Ms. Peiroo had argued that the adjudicator erred in finding she had no credible basis for her refugee claim and that her detention was therefore ordered illegally.\n\nFinally, May itself urges us to interpret exceptions to the availability of habeas corpus restrictively: Given the historical importance of habeas corpus in the protection of various liberty interests, jurisprudential developments limiting habeas corpus jurisdiction should be carefully evaluated and should not be allowed to expand unchecked. The exceptions to habeas corpus jurisdiction and the circumstances under which a superior court may decline jurisdiction should be well defined and limited. [para. 50]", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-16", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 35–37", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "For these reasons, I do not think May should be interpreted as holding that the Peiroo exception bars all habeas corpus applications that arise in the immigration context, regardless of the grounds raised to challenge detention.\n\nTwo recent Ontario Court of Appeal cases — Chaudhary and Ogiamien — recognized that the Peiroo exception does not bar all habeas corpus applications targeting a deprivation of liberty that arises from the immigration scheme.\n\nIn Chaudhary, Rouleau J.A., writing for the court, distinguished the case before him from Peiroo by noting that the applicant in Peiroo had challenged aspects of her refugee status itself — an immigration determination for which the IRPA provided review as broad as habeas corpus — whereas the multiple applicants in Chaudhary challenged their detentions on the grounds that the extended duration or indeterminacy of detention offended s. 7 of the Charter . The Court of Appeal concluded that the IRPA was not as broad or advantageous as habeas corpus with respect to such queries. Moreover, the applicants challenged only their detention: the outcome of the applications would have no effect on their immigration status. Ultimately, provincial superior court jurisdiction was a necessary complement to the statutory scheme in order to protect the constitutional right to habeas corpus.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-17", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 38–40", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Sharpe J.A. addressed similar facts in Ogiamien, finding that a 25-month detention — on the basis of an outstanding deportation order — was subject to habeas corpus review. Although the court found it was unnecessary to consider Mr. Ogiamien’s contention that he should have been detained in an immigration holding centre rather than in a maximum security facility — given that specific complaint had been dealt with in a separate application — it noted that the principle applied in Chaudhary was not restricted to situations involving lengthy detentions of uncertain duration. Instead, the principle rested upon the Superior Court’s broad residual jurisdiction to entertain habeas corpus applications subject only to the framework set out in May (Ogiamien, at paras. 38-42).\n\nI agree with the Chaudhary and Ogiamien approach, adopted by the Court of Appeal in this case. This approach properly flows from the principles set out by this Court in May.\n\nIn sum, the Peiroo exception can be more clearly articulated as follows: an application for habeas corpus will be precluded only when a complete, comprehensive and expert scheme provides for review that is at least as broad and advantageous as habeas corpus with respect to the challenges raised by the habeas corpus application. An administrative scheme may be sufficient to safeguard the interests protected by habeas corpus with respect to some types of challenges, but may also need to be re-examined with respect to others. It is thus essential to consider how the challenge to the unlawful detention is framed in the habeas corpus application. A. Determining When the Exception Applies", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-18", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 41–42", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "How, then, does a court determine whether there is “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” such that an applicant will be precluded from bringing an application for habeas corpus (May, at para. 40)?\n\nFirst, it is necessary to ask upon what basis the legality of the detention is being challenged. In other words, what are the grounds in the applicant’s habeas corpus application? Reference to the categories in Dumas may be helpful to this inquiry. Is the applicant challenging an initial decision that resulted in detention, such as a removal order? Are they challenging the conditions of their detention? Or are they challenging the length and uncertain duration of their detention? Precisely delineating the grounds for the habeas corpus application is necessary in order to determine whether there is an effective statutory remedy to address those grounds.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-19", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 43–44", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, it is necessary to ask whether there is a complete, comprehensive and expert scheme that is as broad and advantageous as habeas corpus in relation to the specific grounds in the habeas corpus application. Elements of the IRPA detention review scheme may speak to whether the scheme is complete, comprehensive and expert. However, the main issue in this case, and the focus of the parties’ submissions, is whether IRPA review is as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina challenged the legality of his detention. In this inquiry, it may be helpful to look at whether a statutory scheme fails entirely to include the grounds set out in the application for habeas corpus. If so, the scheme will not be as broad and advantageous as habeas corpus. The scheme will also fail to oust habeas corpus if it provides for review on the grounds in the application, but the review process is not as broad and advantageous as that available through habeas corpus, considering both the nature of the process and any advantages each procedural vehicle may offer.\n\nAs I shall explain, applying this framework to the facts of Mr. Chhina’s case reveals that while the statutory scheme set out in the IRPA , including judicial review, may provide adequate review with respect to some matters, it is unable to effectively address the challenge raised by Mr. Chhina’s application in a manner that is as broad and advantageous as habeas corpus. B. Identifying the Grounds of Mr. Chhina’s Challenge", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-20", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 45–47", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first step is to identify the grounds raised in the habeas corpus application. Mr. Chhina challenged the legality of his detention on two grounds: that he was being held in inappropriate conditions and that the duration of his detention had become indeterminate and overly lengthy. Mr. Chhina argued that the length and duration of his detention violated his rights under ss. 7 and 9 of the Charter because there was no reasonable prospect that the immigration-related purposes justifying his detention would be achieved within a reasonable time. The courts below proceeded on the basis of this second ground: that the lengthy detention of indeterminate duration violated the Charter .\n\nUnlike in Peiroo, Mr. Chhina’s application for habeas corpus had nothing to do with whether his inadmissibility or deportation were rightly or wrongly decided. C. The IRPA Statutory Review Scheme\n\nIn determining whether the scheme provides for review as broad and advantageous as habeas corpus, the court should look at the actual alternatives for detention review realistically available to someone in Mr. Chhina’s circumstances. As this Court stated in May, a “purposive approach . . . requires that we look at the entire context”, which in that case included the relative disadvantages of judicial review in the Federal Court (May, at para. 65). This examination may include any administrative adjudicators, tribunals, and internal appeal mechanisms, as well as available judicial review or statutory appeal routes. In this case, I consider both the Immigration Division and the judicial review processes in the Federal Courts.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-21", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 48–49", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "I begin first with a general overview of how the IRPA scheme functions before considering whether it offers review as broad and advantageous as habeas corpus. The IRPA provides a detailed scheme to deal with the review of detention in the immigration context. Just as in the criminal context, a deprivation of liberty ordered pursuant to the IRPA must always be justified. Release is the default except where the Minister establishes that: the detainee is a danger to the public or is unlikely to appear at a hearing; the Minister is inquiring as to inadmissibility due to security risks, human rights violations or criminality; or the Minister has concerns about establishing the person’s identity (IRPA , s. 58(1) ). Each of these grounds of detention is determined in accordance with a list of immigration-specific factors set out in the Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 244 to 249 (IRPR).\n\nOnce an initial detention order has been made, the IRPA review process provides for periodic internal review of detention by members of the Immigration Division of the Immigration and Refugee Board, who are appointed in accordance with the Public Service Employment Act, S.C. 2003, c. 22 (IRPA , ss. 151 and 172(2) ). A member of the Immigration Division must conduct an initial review within 48 hours of an individual being taken into immigration custody, as well as a review within the 7 following days, and additional reviews every 30 days thereafter (IRPA , s. 57 ).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-22", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 50–54", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA also explicitly provides for judicial review of those decisions by the Federal Court (IRPA , s. 72 ). An appeal from this judicial review is available to the Federal Court of Appeal on a certified question of general importance (IRPA , s. 74 (d)). All the review processes are intimately linked, as judicial review is circumscribed by the statutory mandate of the original decision-maker.\n\nLastly, it should be noted that immigration officials are experts in applying their statutory mandate. Given its role in judicial review, the Federal Court has also developed significant familiarity with the immigration context and contributes an additional layer of immigration-related expertise.\n\nAs this examination reveals, the review process set out in the IRPA is detailed and clear. The grounds for ordering or continuing detention are clear. Independent review is assured by judicial review through the Federal Courts. Clear remedies, namely release, exist.\n\nHowever, as I shall explain, IRPA proceedings do not provide for review as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina has challenged the legality of his detention. D. Is Review Under the IRPA as Broad and Advantageous as Habeas Corpus?\n\nThe scope of review under the IRPA must, of course, actually include the grounds Mr. Chhina has raised.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-23", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 55–56", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Once the Minister has established grounds for detention, immigration officers and members of the Immigration Division must consider factors which may weigh in favour of release, set out at s. 248 of the IRPR: (a) the reason for detention; (b) the length of time in detention; (c) whether . . . that detention is likely to continue and, if so, [how long]; (d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; and (e) the existence of alternatives to detention.\n\nTo this list, the Federal Court of Appeal has added that the decision-maker must be mindful of the principles applicable to s. 7 of the Charter (Canada (Minister of Citizenship & Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572, at para. 14).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-24", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 57–58", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Chhina challenged the length, uncertain duration and conditions of his detention. The conditions in which a person is detained are notably absent from the language of s. 248 of the IRPR. Counsel for the appellant conceded as much, adding that the conditions of detention are properly within the ambit of the provincial correctional authorities or the Canadian Border Services Agency, not the Immigration Division (Brown v. Canada (Citizenship and Immigration), 2017 FC 710, 25 Admin. L.R. (6th) 191, at para. 138). The Immigration Division has no explicit power to examine harsh or illegal conditions. This is to be contrasted with habeas corpus, which provides for review of any unlawful form of detention. The inability of a scheme to respond to the specific ground raised in an application of habeas corpus would mean that the scheme does not preclude habeas corpus. However, this ground of Mr. Chhina’s habeas corpus application was not addressed by the Court of Appeal, nor was it argued before this Court.\n\nIn contrast to the absence of conditions, the regulations do provide for consideration of the length and likely duration of detention (IRPR, s. 248(c) and (d)). The question thus becomes whether review of the length and duration of detention under the IRPA is as broad and advantageous as that available through habeas corpus. This requires consideration of the nature of the review process and any advantages provided by each procedural vehicle.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-25", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 59", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "I conclude that the IRPA does not provide for review as broad and advantageous as habeas corpus where the applicant alleges their immigration detention is unlawful on the grounds that it is lengthy and of uncertain duration. Taken as a whole, the scheme falls short in at least three important ways. First, the onus in detention review under the IRPA is less advantageous to detainees than in habeas corpus proceedings. Second, the scope of review before the Federal Courts is narrower than that of a provincial superior court’s consideration of a habeas corpus application. Third, habeas corpus provides a more timely remedy than that afforded by judicial review.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-26", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 60", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Under the IRPA, the Minister need only make out a prima facie case for continued detention (e.g., indicate that the detainee is a continued flight risk) in order to shift the onus to the detainee to justify release. While the IRPA places the onus on the Minister to demonstrate a ground for detention (IRPA , s. 58 ), the regulations simply state that the length and likely duration of detention (among other factors) “shall be considered before a decision is made on detention or release” (IRPR, s. 248). The Federal Court has interpreted the regulations as imposing the onus on the detainees to demonstrate that their continued detention would be unlawful in light of the s. 248 factors (Thanabalasingham, at para. 16; Chaudhary, at para. 86; Canada (Public Safety and Emergency Preparedness) v. Lunyamila, 2016 FC 1199, [2017] 3 F.C.R. 428). This understanding of who bears the onus is consistent with the general principle that a Charter applicant bears the onus of establishing a Charter infringement. In addition, while s. 248 provides that an Immigration Division member must consider certain factors, the regulations provide no guidance as to how the length and duration of detention are to be considered and, crucially, when these factors might be outweighed by others — such as the reason for detention. Thus, as Rouleau J.A. has correctly observed, the IRPA does not require the Minister to explain or justify the length and uncertain duration of a detention, because the Minister need only establish one of the grounds at s. 58 of the scheme in order to shift the onus to the detainee (Chaudhary, at para. 86). This contrasts sharply with habeas corpus where, subject to raising a legitimate ground, the onus is on the Minister to justify the legality of the detention in any respect.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-27", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 60–62", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "As noted by this Court in Mission Institution v. Khela, the onus in habeas corpus is of particular historical significance: This particular shift in onus is unique to the writ of habeas corpus. Shifting the legal burden on the detaining authorities is compatible with the very foundation of the law of habeas corpus, namely that a deprivation of liberty is permissible only if the party effecting the deprivation can demonstrate that it is justified. [para. 40]\n\nFurther, on judicial review to the Federal Court, the onus lies squarely upon the applicant to establish that the decision is unreasonable (Mission Institution v. Khela, at para. 40).\n\nMoreover, under the IRPA the Minister may satisfy its onus by relying on reasons given at a prior detention hearing. This practice has been encouraged by the Federal Courts, which have held that, while previous detention decisions are not binding, “if a member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out” (Thanabalasingham, at para. 10; see also, among others: Canada (Public Safety and Emergency Preparedness) v. Mehmedovic, 2018 FC 729, at para. 19 (CanLII); Canada (Public Safety and Emergency Preparedness) v. Torres, 2017 FC 918, at para. 20 (CanLII); Canada (Minister of Public Safety and Emergency Preparedness) v. Karimi-Arshad, 2010 FC 964, 373 F.T.R. 292, at para. 16). In other words, immigration officials may rely entirely on reasons given by previous officials to order continued detention and remain fully compliant with the IRPA scheme. In practice, the periodic reviews mandated by the IRPA are susceptible to self-referential reasoning, instead of constituting a fresh and independent look at a detainee’s circumstances.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-28", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 63", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Thus, the scheme fails to provide the detainee with the fresh and focussed review provided by habeas corpus, where the Minister bears the onus. The fresh evidence filed before this Court emphasizes the above points. An external audit commissioned by the chair of the Immigration and Refugee Board offers a timely, and frankly unfortunate, picture of how the scheme is being administered for those in long-term detention. The 2018 audit highlights how, in practice, detainees do not receive the full benefit of the scheme: - in principle, the Immigration Division should place the onus on the Minister to continue detention; in practice they often fail to do so (2017/2018, Audit, at p. 18); - in principle, the Immigration Division should be approaching each detention review afresh; in practice, the Immigration Division is overly reliant on past detention review decisions (2017/2018, Audit, pp. 31-32); - in principle, the Immigration Division should be impartial and independent from the Canadian Border Services Agency; in practice, the Immigration Division often overly relies on the Canada Border Services Agency’s submissions (2017/2018, Audit, pp. 17-18); and - in principle, the Immigration Division should be reviewing IRPA detentions for compliance with ss. 7 , 9 , and 12 of the Charter ; in practice, as a result of their failure to consider each detention review afresh, they do not do so (2017/2018, Audit, pp. 31-32).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-29", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 64", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The second disadvantage of the IRPA scheme is the scope of review. As a practical matter, the Immigration Division does not conduct a fresh review of each periodic detention, as discussed above; as such, the scope of review before the Federal Courts is correspondingly narrower than review on habeas corpus. The broad review provided by habeas corpus grapples with detention as a whole. This case, for example, required a holistic consideration of Mr. Chhina’s Charter rights and how they may have been violated — not by an individual decision but by the overall context of his detention. This type of inquiry is closely tied to the expertise of the provincial superior courts (May, at para. 68; see also Mission Institution v. Khela, at para. 45; Chaudhary, at para. 102). Relief through judicial review on the other hand, may be sought only with respect to a single decision, which in the IRPA context is generally the most recent 30-day review (Federal Courts Rules, SOR/98-106, r. 302).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-30", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 65", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Further, the remedies available on judicial review are more limited and less advantageous to a detainee than on habeas corpus. Although the Federal Courts do have limited powers of mandamus — the power to require a decision-maker to take positive action, such as requiring the Immigration Division to release a detainee — I am aware of no cases in which release has been ordered. To the extent that they can exercise this power, the remedy is granted only where “certain relatively rarely occurring prerequisites are met” (Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132, at para. 28 (CanLII)). Instead, a successful judicial review will generally result in an order for redetermination, requiring further hearings to obtain release and thereby extending detention. This is to be contrasted with habeas corpus, where release is ordered immediately once the relevant authority has failed to justify the deprivation of liberty.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-31", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 66", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Lastly, habeas corpus provides a more timely remedy than those available through the IRPA . Leave is required for judicial review of a detention decision made under the IRPA , and perfecting an application for leave on judicial review can take up to 85 days (IRPA , s. 72(2) (b); Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, rr. 10(1), 11 and 13). As the Federal Court has acknowledged, even in the best of circumstances, it is thus impracticable for judicial review to occur before the next 30-day detention review has been held, rendering the outcome of the judicial review moot (Canada (Citizenship and Immigration) v. B386, 2011 FC 175, [2012] 4 F.C.R. 220, at para. 13; Chaudhary, at para. 94). The remedy of a rehearing restarts the review process, leading to further delays. This cycle of mootness at the judicial review stage acts as a barrier to timely and effective relief.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-32", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 67–69", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In contrast, the importance of habeas corpus as a “swift and imperative remedy” has long been recognized (Mission Institution v. Khela, at para. 3; In re Storgoff, [1945] S.C.R. 526, at p. 591). Courts across the country have acknowledged this by enacting rules that prioritize the hearing of habeas corpus applications. Habeas corpus writs are “returnable immediately” before a superior court judge in Ontario, and the hearing of habeas corpus applications have priority over other business of the court in both Quebec and Nova Scotia (Habeas Corpus Act, R.S.O. 1990, c. H.1, s. 1(1); Code of Civil Procedure, CQLR, c. C-25.01, art. 82 para. 3; Nova Scotia Civil Procedure Rules, r. 7.13(1); see also Criminal Procedure Rules of the Supreme Court of the Northwest Territories, Canada Gazette, SI/98-78, ss. 103 to 107). The advantages habeas corpus offers with respect to timeliness are especially relevant to an application like Mr. Chhina’s, which was primarily concerned with the duration of his detention.\n\nIn sum, the IRPA fails to provide relief that is as broad and advantageous as habeas corpus in response to Mr. Chhina’s challenge to the legality of the length and uncertain duration of his detention. V. Motion to Vary the Record\n\nOn appeal before this Court, the respondent brought a motion to vary the record and file new evidence. This new evidence included a troubling audit that found examples of maladministration within the IRPA scheme, resulting in some detainees being kept in a cycle of long-term detention.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-33", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 70", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the evidence was not necessary to resolve this appeal, it is admissible pursuant to Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. The evidence is new, relevant, credible and confirmatory in that it provides statistical evidence supporting the argument that the IRPA scheme is not as broad and advantageous as habeas corpus for lengthy detentions, particularly with regards to the onus borne by the applicant at each successive detention review. In this case, even without regard to this evidence, it was clear that the statutory scheme, including judicial review at the Federal Courts, is not as advantageous as habeas corpus given the nature of the challenge. VI. Conclusion", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-34", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 71", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Habeas corpus is a fundamental and historic remedy which allows individuals to seek a determination as to the legality of their detention. A provincial superior court should decline its habeas corpus jurisdiction only when faced with a complete, comprehensive and expert scheme which provides review that is at least as broad and advantageous as habeas corpus with respect to the grounds raised by the applicant. Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was in the days of King John” and any exceptions to its availability must be carefully limited (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 28). The IRPA has been held to be a complete, comprehensive and expert scheme for immigration matters generally, but it is unable to respond to Mr. Chhina’s challenge in a manner that is as broad and advantageous as habeas corpus and the Alberta Court of Queen’s Bench erred in declining to hear Mr. Chhina’s habeas corpus application. For these reasons, I would allow the motion to adduce new evidence and dismiss the appeal with costs on the basis agreed by the parties. The following are the reasons delivered by", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-35", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 72–73", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Abella J. (dissenting) — I share the majority’s view that there should be assertive and rigorous scrutiny of the lawfulness of any deprivation of liberty. That is why, in my respectful view, the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA ), should be interpreted in a way that guarantees the fullest possible range of scrutiny for detention, including the conditions of detention. I see nothing in the language of the Act that precludes such a comprehensive review. In fact, I think the basis for the entire scheme requires it. On the other hand, interpreting it in a way that restricts the contours of the scrutiny unduly interferes with the rights of the detainee and with the legislature’s intention that those rights be fully and generously integrated with the purposes of the whole scheme.\n\nMoreover, interpreting the Act in a way that excludes the possibility of reviewing all aspects of immigration detention, including its conditions and lawfulness, essentially and inappropriately reads out the detention review process in IRPA . Why would any detainee settle for a partial review of his or her detention under IRPA if they could receive a more expansive one under habeas corpus? By narrowing the range of detention review available under IRPA , the majority’s interpretation has the effect of elevating habeas corpus into the only meaningful route offering detainees a full review of their detention. This relegates the Act to a second-best role, and creates a two-tier process of detention review whereby those who choose the Act’s menu are deemed to be consigned to a lesser remedial buffet.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-36", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 74–77", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The better approach is to continue to read the language of IRPA in a manner that is as broad and advantageous as habeas corpus and ensures the complete, comprehensive and expert review of immigration detention that it was intended to provide, as all of this Court’s previous jurisprudence has done. It is far more consistent with the purposes of the scheme to breathe the fullest possible remedial life into the Act than to essentially invite detainees to avoid the exclusive scheme and pursue their analogous remedies elsewhere. I. Background\n\nTusif Ur Rehman Chhina was born in Pakistan. He entered Canada in December 2006 and obtained refugee status under a false name. When the Minister of Citizenship and Immigration discovered Mr. Chhina’s misrepresentation, he applied to the Refugee Protection Division of the Immigration and Refugee Board to remove Mr. Chhina’s refugee status.\n\nThe Refugee Protection Division granted the Minister’s application in February 2012. It determined that Mr. Chhina was inadmissible to Canada on the basis of serious criminality, and issued a deportation order against him. In response to the deportation order, the Canadian Border Services Agency began taking steps to obtain the necessary travel documents for Mr. Chhina’s return to Pakistan.\n\nBefore he could be deported from Canada, Mr. Chhina was convicted of various criminal offences and incarcerated for three years. When he was released in April 2013, Mr. Chhina was taken immediately into immigration detention on the grounds that he would likely pose a danger to the public and would be unlikely to appear for his removal from Canada if released.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-37", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 78–79", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "As required by the Act, a member of the Immigration Division of the Immigration and Refugee Board reviewed Mr. Chhina’s detention within 48 hours of this detention and again within 7 days. Thereafter, the Immigration Division reviewed his detention at least every 30 days. His release was ordered on terms and conditions by Leeann King after a detention review in November 2013. Member King explained: [I]t will be an indeterminate amount of time before Pakistan issues a travel document if they even ever do because there’s no way to know what the holdup is at this point after full cooperation from Mr. Chhina and his family . . . . So what I have to consider is the Regulations under 248 which are borrowed verbatim from the decision of Sahin which relates to section 7 of the Charter and detaining people for lengthy and indeterminate amounts of time when there are alternatives to look at, alternatives to detention that could reduce the risks posed. (A.R., vol. II, at p. 106)\n\nMr. Chhina breached the conditions of his release by failing to report to the Canadian Border Services Agency as required. Border Services issued a warrant for his arrest in December 2013, but Mr. Chhina could not be located for a year. He was finally arrested by the police in December 2014 for crimes committed since his release. He was detained on those criminal charges until November 2015, at which point he was again taken directly into immigration detention.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-38", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 80–82", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Immigration Division reviewed his detention the next day and ordered his continued detention on the bases that he was unlikely to appear for removal from Canada and that he posed a danger to the public. The Immigration Division continued to review Mr. Chhina’s detention as required by ss. 57 and 58 of IRPA and s. 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), which guarantee immigration detainees like Mr. Chhina an opportunity to challenge the lawfulness of their detention before the Immigration Division at least every 30 days.\n\nBorder Services continued its efforts to return Mr. Chhina to Pakistan. It requested travel documents from Pakistan on three occasions over three and one half years. Pakistan did not accede to these requests. While Pakistan had at one time acknowledged that Mr. Chhina was a Pakistani citizen, it subsequently resiled from that position and said it would not issue a travel document because it could not verify Mr. Chhina’s national status. Border Services learned that Pakistan refused to issue a travel document in December 2015 and then made efforts to establish his true identity.\n\nMr. Chhina pursued the statutory remedies available to him to challenge the lawfulness of his continued detention under IRPA . But he also sought to access the alternative remedy of habeas corpus by emphasizing the constitutional nature of his challenge based on ss. 7 , 9 and 12 of the Canadian Charter of Rights and Freedoms .", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-39", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 83–85", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The application judge in the Court of Queen’s Bench, Mahoney J., declined to exercise habeas corpus jurisdiction on the basis that the IRPA scheme for immigration detention review provides a complete, comprehensive and expert procedure for the review of Immigration Division decisions. He found that the case was an immigration matter within the jurisdiction and expertise of the Federal Court.\n\nThe Alberta Court of Appeal held that the application judge erred in declining to exercise habeas corpus jurisdiction. In its view, habeas corpus review offers greater advantages to detainees like Mr. Chhina than the IRPA scheme.\n\nThe Alberta Court of Appeal’s decision, which followed and endorsed the Court of Appeal for Ontario’s decision in Chaudhary v. Canada (Minister of Public Safety & Emergency Preparedness) (2015), 127 O.R. (3d) 401 (C.A.), departed from settled law. This Court has repeatedly held that the IRPA scheme for the review of immigration detention decisions is a complete, comprehensive and expert scheme that is at least as broad as, and no less advantageous than, review by way of habeas corpus. I see no reason to depart from it now. If anything, this case presents an opportunity to confirm that the process and substance of detention reviews under IRPA should be as advantageous as habeas corpus, so that detainees get expeditious access to the fullest possible review of the terms and conditions of their detention. II. Analysis", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-40", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 86–88", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Habeas corpus, the traditional route to assessing the lawfulness of deprivations of liberty, has historic roots which have spawned a variety of statutory remedies whose goal is to preserve the same protections. These can be found, among other statutes, in the Criminal Code , R.S.C. 1985, c. C-46 , which confers jurisdiction on appellate courts to correct the errors of a lower court and release the applicant (see, for example, R. v. Gamble, [1988] 2 S.C.R. 595, at pp. 636-37; R. v. Pearson, [1992] 3 S.C.R. 665 (bail review); Staetter v. British Columbia (Adult Forensic Psychiatric Services), 2017 BCCA 68 (Review Board custodial dispositions)).\n\nThey are also found in IRPA . Their legitimacy as a genuine alternative to habeas corpus was judicially considered and endorsed in Pringle v. Fraser, [1972] S.C.R. 821; Peiroo v. Canada (Minister of Employment & Immigration) (1989), 69 O.R. (2d) 253 (C.A.), leave to appeal refused, [1989] 2 S.C.R. x; Reza v. Canada, [1994] 2 S.C.R. 394; May v. Ferndale Institution, [2005] 3 S.C.R. 809. Each of these decisions emphasized that the habeas corpus-like remedies available in what was intended to be an exclusive statutory scheme, were “as broad as or broader than the traditional scope of review by way of habeas corpus” (Peiroo, at p. 261).\n\nThe issue in this appeal is whether that remains the case, namely, that the immigration scheme is able to continue to provide as fulsome a package of protections as does habeas corpus, or whether the scheme no longer provides analogous benefits, thereby justifying a departure from our jurisprudence.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-41", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 89–91", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Statutory schemes like IRPA that replace habeas corpus with equally effective remedies have long been upheld (Judith Farbey and Robert J. Sharpe, with Simon Atrill, The Law of Habeas Corpus (3rd ed. 2011), at p. 49). As the Court of Appeal for Ontario recently observed in Ogiamien v. Ontario (Community Safety and Correctional Services) (2017), 55 Imm. L.R. (4th) 220 (Ont. C.A.), habeas corpus cannot be used to mount a collateral attack on immigration decisions for which a comprehensive review process exists (para. 14).\n\nThe statutory scheme for immigration detention review set out in IRPA , together with the Regulations and the Immigration Division Rules, SOR/2002-229, mandates prompt, regular, accessible and Charter-compliant review of immigration detention decisions by the Immigration Division of the Immigration and Refugee Board, an independent, quasi-judicial administrative tribunal with specialized knowledge of immigration matters, including immigration detention.\n\nThe IRPA scheme was intended to provide the same fulsome, Charter-compliant review of immigration detention as habeas corpus. Section 3(3) (d) of IRPA codifies the Immigration Division members’ obligation to exercise their discretion in accordance with the Charter ; Application (3) This Act is to be construed and applied in a manner that . . . (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms , including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-42", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 92–93", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "This means that the Charter governs the exercise of discretion under the Act and informs the interpretation of its provisions in a manner that allows for the fullest possible review of a detainee’s loss of liberty. The Act must therefore be interpreted in a way that does not circumscribe its purposes but instead gives it the widest possible scope for implementing its objectives through rigorous substantive detention review. The application of the Charter to the IRPA scheme guarantees the full panoply of rights to detained individuals. This extends to matters of timeliness and access to the statutory remedies, the nature of the review, onus and expertise.\n\nThe suggestion that a full review of detention can only occur under habeas corpus is a bow to the seductive attraction of the label without recognizing that it unnecessarily fetters the comprehensive review of the lawfulness of detention provided in the Act. It also departs from a long-standing jurisprudential consensus: that the IRPA scheme for the review of immigration detention decisions provides a remedy to detainees that is at least as broad, and no less advantageous than review by way of habeas corpus. In my respectful view, there is no principled reason to abandon the sound logic in Pringle, Peiroo, Reza and May.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-43", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 94–95", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the time Pringle was decided in 1972, the Immigration Appeal Board Act, S.C. 1966-67, c. 90, had recently been amended to provide a scheme for the review of deportation orders by the Immigration Appeal Board, an independent administrative tribunal vested with all the powers of a superior court of record. The applicant appealed to the Board after an immigration official issued a deportation order against him. At the same time, he commenced certiorari proceedings in the superior court to have the deportation order quashed. His application for certiorari was dismissed at first instance but granted on appeal to the Court of Appeal for Ontario. Before this Court, the appeal turned on whether the superior court had certiorari jurisdiction to quash a deportation order made pursuant to the Immigration Act, R.S.C. 1952, c. 325.\n\nLaskin J. concluded that amendments to the Immigration Appeal Board Act establishing the Immigration Appeal Board and conferring certain power to it had “brought into the law a wider avenue for initial appeal from deportation orders than theretofore existed” (p. 825). He wrote: [The Immigration Appeal Board Act] and the Immigration Act, and the Regulations promulgated under each of them, constitute a code for the administration of immigration matters and for the review of proceedings in such matters. There is no common law of immigration. Parliament’s authority to establish such a code is not challenged; nor is Parliament’s authority to deny or remove certiorari jurisdiction from provincial superior courts over deportation orders. [p. 825]", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-44", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 96", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Laskin J. held that the amended Immigration Appeal Board Act, with its new scheme for the administrative review of immigration deportation orders, ousted the certiorari jurisdiction of the superior court. He rejected the contention that Parliament, in enacting the new immigration scheme, had not clearly expressed an intention that the scheme should remove certiorari jurisdiction from the provincial superior courts. On the contrary, he saw s. 22 of the scheme as expressly endowing the Immigration Appeal Board with “sole and exclusive jurisdiction to hear and determine all questions of fact or law, including questions of jurisdiction”. In Laskin J.’s view, the plain meaning of the statute was to exclude any other court or tribunal from entertaining the same proceedings: The result I would reach goes beyond literal justification in the language of s. 22. The facts of the present case show the incompatibility of the appellate jurisdiction vested in the Board with the survival of certiorari in provincial superior courts. It was not suggested that the appeal to the Board would be aborted by proceedings to quash taken in the Supreme Court of Ontario. In fact, Fraser did not abandon his appeal upon taking certiorari proceedings. However, I do not propose to deal with this case as if an election of remedies had been made and that this must determine the outcome. Certainly, the likelihood of two conflicting decisions (each ultimately appealable to this Court) has nothing to commend it. The only practical resolution is to recognize the exclusiveness of the special procedure ordained by Parliament. [p. 827]", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-45", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 97–99", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Laskin J. compared certiorari to habeas corpus, holding that both are remedial proceedings whose “availability may depend on whether [they are] prescribed as a remedy by the competent legislature” (p. 826, citing In re Storgoff, [1945] S.C.R. 526). These remedies have “no necessary ongoing life in relation to all matters for which [they] could be used, if competent excluding legislation is enacted” (pp. 826-27).\n\nThe principles articulated in Pringle were adopted in Peiroo. In Peiroo, the applicant made a refugee claim in Canada. The Convention Refugee Determination Division of the Immigration and Refugee Board determined there was no credible basis to her claim and issued a removal order pursuant to the provisions of what was then the Immigration Act, R.S.C. 1985, c. I-2. Ms. Peiroo was placed in immigration detention. She sought to contest the finding of no credible basis and the removal order by applying to the provincial superior court for habeas corpus with certiorari in aid. Her application was dismissed and she appealed to the Court of Appeal for Ontario.\n\nThe Court of Appeal considered whether it should decline to exercise its habeas corpus jurisdiction to review Ms. Peiroo’s detention in favour of the alternative remedies available to her to challenge the impugned immigration decisions. Catzman J.A., writing for the court, noted that habeas corpus is an extraordinary remedy that does not generally lie where there is an alternative remedy available (see Peiroo, at p. 257, citing Cameron Harvey, The Law of Habeas Corpus in Canada (1974), at p. 13; Roger Salhany, Canadian Criminal Procedure (4th ed. 1984), at p. 521).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-46", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 100", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Catzman J.A. compared habeas corpus with the available remedies under the Immigration Act to challenge removal orders and credible basis findings. The Act expressly provided for an appeal with leave to the Federal Court of Canada. Catzman J.A. observed that the grounds and scope of review set out in the appeal provisions of the Federal Court Act , R.S.C. 1985, c. F-7 , “are as broad as, and — in the power to examine erroneous findings of fact — probably broader than, those on which the [superior court] exercises its jurisdiction on applications for habeas corpus with certiorari in aid” (p. 258).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-47", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 101", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Catzman J.A. concluded that the review and appeal mechanisms contemplated in the Act were “as broad as or broader than the traditional scope of review by way of habeas corpus”. As a result, the statutory scheme did not run afoul of the principle that individuals “should not be refused the ancient remedy of habeas corpus on account of the availability of some less expeditious and advantageous alternative remedy” (p. 258, citing R. v. Governor of Pentonville Prison, ex parte Azam, [1973] 2 All E.R. 741 (C.A.), at p. 758, aff’d [1973] 2 All E.R. 765 (H.L.)). He explained: Parliament has established in the [Immigration Act], particularly in the recent amendments which specifically address the disposition of claims of persons in the position of the appellant, a comprehensive scheme to regulate the determination of such claims and to provide for review and appeal in the Federal Court of Canada of decisions and orders made under the Act, the ambit of which review and appeal is as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid. In the absence of any showing that the available review and appeal process established by Parliament is inappropriate or less advantageous than the habeas corpus jurisdiction of the [provincial superior court], it is my view that this court should, in the exercise of its discretion, decline to grant relief upon the application for habeas corpus in the present case, which clearly falls within the purview of that statutory review and appeal process.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-48", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 101–102", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "I am fortified in this conclusion by the observation that similar considerations appear to have moved the Supreme Court of Canada to hold that where there is a legislative initiative purporting to provide a whole scheme or code for the administration and review of proceedings in a field like immigration (Pringle v. Fraser . . . [1972] S.C.R. 821), or human rights (Board of Governors of Seneca College of Applied Arts & Technology v. Bhadauria . . . [1981] 2 S.C.R. 181 . . .), such a scheme should not be by-passed, either by evolving a new cause of action (as in Bhadauria) or by the use of a prerogative writ (as in Pringle). Both jurisprudence and logic would suggest that this Court should leave the review of immigration matters with the Federal Court of Canada, which has review and appeal jurisdiction with respect to many aspects of immigration law and which has geographical jurisdiction throughout Canada, and thus can deal with claims of refugee claimants wherever their point of entry. [pp. 261-62]\n\nThis became known as “the Peiroo exception”, namely, where Parliament has put in place a complete, comprehensive and expert statutory scheme providing for review of detention that is at least as broad as, and no less advantageous than habeas corpus review, superior courts should decline to exercise their habeas corpus jurisdiction in favour of that statutory scheme.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-49", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 103", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court applied the Peiroo exception in Reza. Like Peiroo, Reza involved a refugee claim. Mr. Reza claimed protection in Canada as a Convention refugee. A tribunal established under the Transitional Provisions of the Immigration Act, R.S.C. 1985, c. 28 (4th Supp.), determined that there was no credible basis to his claim and issued a deportation order against him. Mr. Reza was unsuccessful at his review by an immigration officer on humanitarian grounds and sought leave to commence judicial review of the immigration officer’s decision in the Federal Court.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-50", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 104", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Reza subsequently challenged the constitutionality of the Immigration Act in the superior court. The motion judge stayed the constitutional challenge because the Federal Court had concurrent jurisdiction and was the more appropriate forum for the challenge. Concluding that he was bound by Peiroo, he said: In the absence of any showing that the available review process and appeal process is inappropriate or less advantageous than the habeas corpus jurisdiction of this Court, this Court should, in the exercise of its discretion, decline to grant relief on a habeas corpus application. Both jurisprudence and logic would support that this Court should leave the review of the immigration matters with the Federal Court of Canada: Re Peiroo (1989), 69 O.R. (2d) 253 (O.C.A.). To the same effect is the C.A. decision in Sheperd (1989) 52 C.C.C. (3d) 386. I am of course bound by these decisions. The case at bar does not involve an application for habeas corpus relief, but the relief sought, by way of declaration and injunctive relief, is also discretionary in this Court. The Federal Court has jurisdiction to grant the relief sought in this application and in my view the principles set out by the C.A. in Peiroo and in Sheperd are applicable to the case at bar. The circumstances described by Campbell in Bembeneck 69 C.C.C. (3d) 34 which influenced the Court to take jurisdiction, are not present here. As to whether the process is less advantageous in the Federal Court, as indicated, the relief is available in that Court and in my view the requirement of leave in that Court to make a claim for a declaratory judgment does not make the process less advantageous . . . . Accordingly, it is my view that this proceeding should be stayed and I so order. [pp. 399-400]", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-51", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 105–108", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "A majority in the Court of Appeal for Ontario reversed the motion judge’s decision. This Court allowed the appeal on the basis of the comprehensive scheme dealing with the same issues. The Immigration Act in force at the time gave the Federal Court an exclusive statutory mandate over immigration matters. As in Peiroo, the Court found that Parliament, in enacting the Immigration Act and granting exclusive jurisdiction to the Federal Court, intended the Federal Court to be the appropriate forum for deciding immigration cases. This weighed against the exercise of concurrent jurisdiction, suggesting instead that the statutory grant of exclusive jurisdiction to the Federal Court demonstrated legislative intent to bar individuals from pursuing parallel remedies in the superior courts.\n\nSecond, the factors of expertise and experience also favoured the Federal Court’s exclusive mandate over immigration matters. The Federal Court has expertise in immigration law, administrative law, and Federal Court procedure. While on the surface Mr. Reza’s case appeared to be a constitutional one, at its core the nature of the Charter challenge was fundamentally linked with immigration policy and process.\n\nThird, superior courts should decline to exercise jurisdiction in immigration cases where the Federal Court has concurrent jurisdiction to avoid issues of forum-shopping, inconsistent decision making and multiplicity of proceedings (see also Reference re Constitution Act, 1867, s. 92(10)(a) (1988), 64 O.R. (2d) 393 (C.A.)).\n\nThe motion judge had therefore rightly declined to exercise jurisdiction on the basis that Parliament had created a comprehensive scheme of review of immigration matters and the Federal Court was an effective and appropriate forum.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-52", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 109–111", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court considered Pringle, Peiroo and Reza in May. In May, we confirmed two exceptions to the availability of habeas corpus: it is not available to challenge the legality of a criminal conviction where a statute provides for a right of appeal; and it is not available “in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded”, namely the Peiroo exception (para. 40).\n\nThe grievance procedures under s. 81(1) of the Corrections and Conditional Release Regulations, SOR/92-620, were at issue in May: 81 (1) Where an offender decides to pursue a legal remedy for the offender’s complaint or grievance in addition to the complaint and grievance procedure referred to in these Regulations, the review of the complaint or grievance pursuant to these Regulations shall be deferred until a decision on the alternate remedy is rendered or the offender decides to abandon the alternate remedy.\n\nThe Court concluded that this language did not reveal a legislative intention to oust the superior courts’ habeas corpus jurisdiction (para. 60). Instead, the statute was found to contemplate that an inmate may choose to pursue a remedy like habeas corpus in addition to filing an administrative grievance. The language reflected a legislative intent that the statutory scheme operate in conjunction with the superior courts’ habeas corpus jurisdiction.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-53", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 112–113", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court held that for immigration detainees seeking to challenge their continued detention as a violation of their Charter rights, the IRPA scheme governing matters of immigration law was a complete, comprehensive and expert scheme that is at least as broad as, and no less advantageous than review by way of habeas corpus in terms of expertise, onus, the nature of the remedy, and timeliness. Provincial superior courts should, as a result, decline to exercise their concurrent jurisdiction to review immigration detention by way of habeas corpus in favour of review before the Immigration Division and the Federal Court under the IRPA scheme.\n\nSection 162(1) of IRPA confirms the clear legislative intent to grant exclusive original jurisdiction to the Immigration Division over immigration matters: Sole and exclusive jurisdiction 162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. In Pringle, Laskin J. found that this language barred courts from entertaining the types of immigration proceedings over which the Board had been granted exclusive statutory authority. This specialized and exclusive expertise underlies the Peiroo exception to the availability of habeas corpus review in immigration matters.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-54", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 114–115", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court has consistently endorsed the Peiroo exception limiting the availability of habeas corpus review for immigration matters. In the absence of evidence that the “complete, comprehensive and expert statutory scheme” does not provide for a review at least as broad and no less advantageous than habeas corpus, I see no reason to disturb the Court’s jurisprudence by opening an alternative route, one that will lead to the forum shopping, inconsistent decision making, and multiplicity of proceedings the Court warned against in Reza. There is nothing in the language of the statutory scheme that restricts the scope of IRPA detention review to a partial review which must be supplemented by habeas corpus. On the contrary, the IRPA scheme is structured to provide detainees with at least the same rights they would receive on habeas corpus review.\n\nTo begin, the IRPA scheme for immigration detention review provides that all detentions must be reviewed regularly. Individuals detained for immigration purposes have the right to appear before the Immigration Division within 48 hours following their initial detention (s. 57(1)). A second review must take place during the next 7 days, and regular reviews at least once every 30 days thereafter (s. 57(2)). The detainee may make an application to the Immigration Division requesting a detention review before the expiry of the 7 or 30-day period (Immigration Division Rules, r. 9). Review hearings are structured to be expeditious and accessible, and they must be dealt with as informally and quickly as the circumstances and considerations of fairness and natural justice permit.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-55", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 116–117", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA scheme provides that immigration officers are responsible for bringing the detainee before the Immigration Division for all review hearings (s. 57(3)). The Immigration Division has a corresponding power to order immigration officials to bring the detainee to a location specified by the Division (Immigration Division Rules, r. 23). The Immigration Division can also facilitate access to the remedy by requiring the parties to appear at a conference to discuss any matter that would make the proceedings more fair and efficient, or to participate in scheduling the proceedings (Immigration Division Rules, rr. 20(1) and 21).\n\nUpon conducting a detention review, the Immigration Division may order the continued detention of a detainee, their unconditional release, or their release on any conditions the Immigration Division considers necessary. The Immigration Division makes its decisions in furtherance of the purposes of IRPA , which include protecting public safety and maintaining the security of Canadian society (s. 3(1)(h)).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-56", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 118–119", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the majority of detention review hearings occur before the Immigration Division, a detainee who is dissatisfied with the Immigration Division’s decision, whether on Charter grounds or otherwise, may apply for leave and judicial review to the Federal Court (IRPA , s. 72(1)). I agree with the comments of Catzman J.A. in Peiroo, rejecting the argument that the requirement for leave to appeal immigration decisions to the Federal Court rendered that remedy less advantageous than habeas corpus, where leave is not required. Catzman J.A. wrote: I consider the suggested distinction to be more apparent than real. In order to succeed on an application for habeas corpus, an applicant must show reasonable and probable ground for his complaint: Habeas Corpus Act, R.S.O. 1980, c. 193, s. 1(1). The requirement for leave imposed by s. 83.1(1) is clearly intended to be one of a series of screening mechanisms created by the Act to discour[a]ge the assertion of spurious or meritless claims. I have difficulty accepting that an applicant who is in a position to show reasonable and probable ground for complaint regarding the decision or order in respect of which he seeks review would fail to be accorded the requisite leave to bring an application for such review. Indeed, counsel have advised that such leave was granted in the present case . . . . [p. 259]\n\nMr. Chhina’s application for judicial review before the Federal Court was, in fact, expedited. It took one week less to be heard and decided than his application for habeas corpus before the Alberta Court of Queen’s Bench.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-57", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 120–121", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In any event, the requirement for leave to appeal to the Federal Court does not change the nature of the comprehensive detention review process under IRPA , which is governed by s. 58 of IRPA and s. 248 of the Regulations. The Immigration Division must order the release of a detainee unless the Minister has satisfied the Immigration Division that one or more of the grounds in s. 58(1) of IRPA are met: (a) The detainee is a danger to the public; (b) The detainee is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister; (c) The Minister is taking necessary steps to inquire into a reasonable suspicion that the detainee is inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; (d) The detainee’s identity has not been, but may be, established; or (e) If the detainee is a designated foreign national, the Minister is of the opinion that the identity of the detainee has not been established.\n\nIf s. 58 grounds are established, s. 248 of the Regulations requires the Immigration Division to consider the following additional factors to determine if detention should continue: (a) The reason for detention; (b) Length of time in detention; (c) Factors that may assist in determining how long detention is likely to continue; (d) Delays or lack of diligence on the detainee or the government’s part; and (e) Alternatives to detention.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-58", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 122–124", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The factors in s. 248 of the Regulations codify the factors articulated by Rothstein J. in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.). The s. 248 factors were endorsed by this Court in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350. They ensure that extended periods of detention do not violate the Charter .\n\nAs Rothstein J. noted in Sahin, through IRPA , “Parliament has dealt with the right of society to be protected from those who pose a danger to society and the right of Canada to control who enters and remains in this country” (p. 229). To achieve these purposes, the IRPA scheme confers upon members of the Immigration Division the power to detain individuals in anticipation of their likely danger to the public or likely failure to appear for removal from Canada.\n\nWhen making a decision as to whether to detain or release an individual under IRPA , Immigration Division members must always exercise their discretion in a way that accords with the Charter (see IRPA , s. 3(3)(d) ). There is a statutory presumption in favour of release before the Immigration Division, which “shall order the release” of a detainee unless it is satisfied that at least one of the grounds set out in s. 58 of IRPA is met, taking into account the factors in s. 248 of the Regulations.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-59", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 125–126", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Significantly, the mandatory s. 248 inquiry on review before the Immigration Division requires the Division to assess the lawfulness of ongoing immigration detention without placing any onus on the detainee. Unlike habeas corpus applications, where the detainee must raise a legitimate ground upon which to question the lawfulness of his or her detention, the Minister bears the onus throughout of justifying the detention before the Immigration Division. The detainee bears no onus to produce evidence as to any of the factors enunciated in s. 58 of IRPA or s. 248 of the Regulations.\n\nTo the extent that the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 572, and the Court of Appeal for Ontario in Chaudhary reached the contrary conclusion, they were, in my respectful view, wrongly decided. Moreover, the holding in Chaudhary that the Minister can satisfy his or her onus before the Immigration Division “simply by relying on the reasons given at prior detention hearings” (para. 87) is inconsistent with the Immigration Division’s obligation to conduct a fresh inquiry into the lawfulness of detention at each review. At each Immigration Division hearing, detainees are entitled to the same fresh review of their detention as they would be on habeas corpus review. In cases like Mr. Chhina’s, the Immigration Division must always reassess the prior evidence in light of the detainee’s Charter arguments.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-60", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 127–128", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "In particular, where a detainee challenges their detention as a violation of the Charter , the time between the prior and present review hearing will constitute new evidence that must inform the Immigration Division’s application of s. 58 of IRPA and s. 248 of the Regulations. It is not enough for the Minister to rely on previous Immigration Division decisions to satisfy the Immigration Division on the s. 58 and s. 248 inquiry. The integrity of the IRPA process is dependent on a fulsome review of the lawfulness of detention, including its Charter compliance, at every review hearing.\n\nThe Charter both guides the exercise of discretionary administrative decision making under IRPA and informs our interpretation of the scheme itself. The IRPA scheme must therefore be interpreted harmoniously with the Charter values that shape the contours of its application. As Justices Iacobucci and Arbour stated in Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248: The modern approach [to statutory interpretation] recognizes the multi-faceted nature of statutory interpretation. Textual considerations must be read in concert with legislative intent and established legal norms. Underlying this approach is the presumption that legislation is enacted to comply with constitutional norms, including the rights and freedoms enshrined in the Charter . . . . This presumption acknowledges the centrality of constitutional values in the legislative process, and more broadly, in the political and legal culture of Canada. [paras. 34-35]", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-61", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 129–130", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Importing Charter principles into the exercise of administrative discretion under IRPA requires that Immigration Division members apply the scheme in a manner that is at least as rigorous and fair as habeas corpus review. It is not enough that a statutory scheme is as broad and advantageous on paper as habeas corpus review, the scheme must also be applied in a manner that preserves the rights of detainees and the integrity of the process in the most comprehensive way possible.\n\nThat means that in carrying out their duties under the IRPA scheme, members of the Immigration Division must ensure the fullest possible review of immigration detention. This includes, and has always included, an obligation to weigh the purposes served by immigration detention against the detained individual’s ss. 7 , 9 and 12 Charter rights. The Immigration Division’s inquiry into the lawfulness of detention must take into account the detained individual’s s. 7 Charter right not to be deprived of liberty except in accordance with the principles of fundamental justice, his or her s. 9 right not to be arbitrarily detained or imprisoned, and the s. 12 right not to be subjected to cruel and unusual treatment or punishment. As Rothstein J. observed in Sahin, “it is not the words of [IRPA ] that vest adjudicators with such jurisdiction, but rather, the application of Charter principles to the exercise of discretion under [the scheme]” (p. 230).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-62", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 131–132", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "That, in my respectful view, necessarily includes the Immigration Division’s ability to consider the conditions of detention. A comprehensive, Charter-infused analysis of immigration detention may reveal that the length or conditions of detention are such that continued detention is not in accordance with the principles of fundamental justice (s. 7), is arbitrary because it is no longer reasonably furthering the state objective (s. 9) and/or amounts to cruel and unusual punishment (s. 12). The application of ss. 7 , 9 and 12 of the Charter to the IRPA scheme brings to light the Immigration Division’s obligation to assess the length, future duration and conditions of detention when balancing the state’s objectives against the detained individual’s rights.\n\nThe IRPA scheme therefore ensures the protection of other Charter rights by calling on the Immigration Division to consider whether detentions have become unlawful because of their length, uncertain duration and conditions. There is no principled reason to interpret the review provisions in a way that precludes scrutiny of conditions. Why apply a narrow, constrictive interpretation of a remedial statute when a wider, more protective interpretation is not only available, it is mandated by the purposes underlying the scheme. As these reasons seek to clarify, the s. 248 factors guide the Immigration Division in assessing whether ongoing detention is justified pursuant to the Charter based on: (a) The reason for detention; (b) Length of time in detention; (c) Factors that may assist in determining how long detention is likely to continue; (d) Delays or lack of diligence on the detainee or the government’s part; and (e) Alternatives to detention.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-63", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "para 133", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 248(a) requires the Immigration Division to weigh the state’s immigration objectives against the detained individual’s right to be free from arbitrary or indefinite restraints on liberty. As in habeas corpus review assessing compliance with the Charter , the Immigration Division must assess the strength of the reason for detention. A prior, fact-driven Immigration Division determination that the individual constitutes a flight risk or a danger to the public is entitled to deference on both IRPA and habeas corpus review (see Thanabalasingham, at para. 10 (IRPA review) and Brown v. Canada (Public Safety) (2018), 420 D.L.R. (4th) 124 (Ont. C.A.), at para. 29 (habeas corpus review)). The greater the danger posed to the public, the stronger the justification for ongoing detention (Sahin, at p. 231 (IRPA review); Ali v. Canada (Minister of Public Safety and Emergency Preparedness) (2017), 137 O.R. (3d) 498 (C.A.), at para. 24 (habeas corpus review)).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-64", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 134–135", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "As for s. 248(b), the justification for continued detention decreases as the length of time in detention increases. The Immigration Division must accord “significant weight” to the length of detention (see Sahin, at pp. 231-32). The strength of an immigration detainee’s argument that his ongoing detention has become a violation of the Charter increases with each subsequent review hearing. The detaining authorities bear a correlative onus to justify continued detention in the face of a continually solidifying Charter claim. A longer period of detention signifies that immigration authorities have had more time to effect removal, which they are expected to do as soon as reasonably possible. Accordingly, the evidentiary burden on the detaining authority to justify continued immigration detention increases as the length of detention increases. This approach to the length of detention is no different from habeas corpus (see Chaudhary, Ali and Brown).\n\nThe anticipated future length of detention in s. 248(c) of the Regulations requires an estimation of how long detention is likely to continue. A detention that is lawful for the purpose of removal may become arbitrary and in violation of s. 9 of the Charter when it becomes unhinged from its immigration-related purpose. Where removal appears unlikely and the future duration of detention cannot be ascertained, this is a factor that weighs in favour of release (Sahin, at p. 231; Charkaoui, at para. 115).", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-65", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 136–137", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "That is the same inquiry as in habeas corpus review. As Rouleau J.A. noted in Chaudhary: A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control. Where there is no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will violate the detainee’s ss. 7 and 9 Charter rights and no longer be legal. [para. 81]\n\nThe Immigration Division is, moreover, better positioned to assess and address the future duration of detention than the superior courts on habeas corpus review. As Létourneau J.A. held for the court in Canada (Minister of Citizenship and Immigration) v. Li, [2010] 2 F.C.R. 433 (C.A.), the short 30-day period between each Immigration Division review “allows for an estimation based on actual facts and pending proceedings instead of an estimation based on speculation as to potential facts and proceedings” (para. 66). The Immigration Division obtains an accurate picture of the detention every 30 days. It can assess progress over time by reviewing past proceedings and anticipating pending proceedings to guard against a violation of the detainee’s Charter rights.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-66", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 138–139", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 248(d) requires a consideration of delays or lack of diligence on the part of the detained individual or the immigration authorities. As Rothstein J. held in Sahin and this Court held in Charkaoui, unexplained delay or lack of diligence should count against the offending party (Sahin, at p. 231; Charkaoui, at para. 114). Superior courts reviewing immigration detention for compliance with ss. 7 , 9 and 12 of the Charter undertake the same inquiry. They look to the complexity of effecting the applicant’s removal from Canada, the reasonableness of the steps taken by immigration authorities to effect removal, and the extent to which the applicant has prolonged their detention by failing to cooperate with immigration authorities’ removal efforts (see Brown, at para. 36; Canada v. Dadzie, 2016 ONSC 6045, at para. 46 (CanLII)).\n\nIn Dadzie, a foreign national detained under IRPA applied to be released by way of habeas corpus. Clark J. applied the Charkaoui and Sahin principles about delay and diligence in immigration review in the habeas corpus context (para. 36). Mr. Dadzie’s lack of cooperation led Clark J. to conclude that Mr. Dadzie had not met his onus of showing that his detention had been exceptionally lengthy.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-67", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 140–141", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, s. 248(e) of the Regulations requires the Immigration Division to consider alternatives to detention. Alternatives to detention include outright release; a bond or guarantee; reporting requirements; confinement to a specific geographic area; and detention in a less restrictive form (Sahin, at p. 231). An assessment of the conditions of detention is a vital component of the inquiry into alternatives to detention under s. 248(e). Given the Immigration Division’s statutory mandate to assess alternatives to detention; the requirement to make Charter-compliant decisions; and its ability to exercise discretion as to the terms of release, the Division’s power to release a detainee on conditions must include an ability to modify the conditions of detention. Like the provincial superior courts on habeas corpus review, Immigration Division members must be taken to have the power to release the detainee from a “prison within a prison” pursuant to s. 58(3) (see R. v. Miller, [1985] 2 S.C.R. 613, at p. 637, per Le Dain J.; Robert J. Sharpe, The Law of Habeas Corpus (1976), at p. 149).\n\nIn sum, the process of review before the Immigration Division governed by s. 58 of IRPA and s. 248 of the Regulations demands that the Division consider the reasons for detention; the length of time in detention; the anticipated future length of detention; delays or lack of diligence; and the availability, effectiveness and appropriateness of alternatives to detention, including changes in the conditions of detention. These are the same considerations that superior courts weigh to assess whether ongoing immigration detention violates ss. 7 , 9 or 12 of the Charter on habeas corpus review.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-68", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 142–143", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Immigration Division has the same constitutional mandate as well as an overarching duty to give effect to “a legislative initiative purporting to provide a whole scheme . . . for the administration and review of proceedings in . . . immigration” (Peiroo, at p. 262; see also Reza v. Canada (1992), 11 O.R. (3d) 65 (C.A.), at p. 80). Mr. Chhina is attempting to ignore the body explicitly and exclusively tasked with carrying out the purposes of IRPA by wrapping his immigration detention with a Charter ribbon.\n\nThis Court in Reza rejected the applicant’s similar attempt to bypass the immigration scheme in search of a favourable constitutional disposition. In so doing, we acknowledged that the expertise of the Immigration Division in immigration matters extends to the constitutional aspects of immigration matters. As La Forest J. wrote in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5: It must be emphasized that the process of Charter decision making is not confined to abstract ruminations on constitutional theory. In the case of Charter matters which arise in a particular regulatory context, the ability of the decision maker to analyze competing policy concerns is critical . . . . . . . It is apparent, then, that an expert tribunal . . . can bring its specialized expertise to bear in a very functional and productive way in the determination of Charter issues which make demands on such expertise. [pp. 16-18]", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-17759-69", - "doc_type": "caselaw", - "act_code": "2019 SCC 29", - "act_short": "Chhina", - "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", - "section": "", - "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", - "marginal_note": "paras 144–147", - "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", - "part": "Supreme Court of Canada", - "division": "", - "text": "Despite Mr. Reza’s attempt to recast his challenge as a constitutional one, the Court recognized that his Charter arguments were fundamentally grounded in immigration policy. The same is true of Mr. Chhina’s Charter complaints, which arose in relation to the Immigration Division’s decisions to continue his detention. These are matters which lie at the heart of immigration policy. The Immigration Division is the most appropriate forum to integrate Charter rights within the overall scheme and purposes of IRPA .\n\nProperly interpreted, it is clear from the preceding review that the IRPA scheme for the review of immigration detention offers a remedy to detainees that is at least as broad, and no less advantageous than review by way of habeas corpus. It provides for the fullest possible review of the merits of a challenge to immigration detention. And where an individual is subject to an immigration detention that is said to violate his or her ss. 7 , 9 and 12 Charter rights, the Immigration Division’s review process, guided by s. 58 of IRPA and s. 248 of the Regulations, allows for at least the same substantive assessment as that undertaken by superior courts on habeas corpus review.\n\nThis Court has repeatedly affirmed that habeas corpus will not lie if the statutory alternative provides a remedy that is at least as favourable. In my respectful view, it does. Mr. Chhina’s case is therefore captured by the Peiroo exception to the availability of habeas corpus review. The superior court properly declined to exercise its habeas corpus jurisdiction in favour of the complete, comprehensive and expert scheme to which Mr. Chhina was entitled under the Act.\n\nI would allow the appeal. Appeal dismissed, Abella J. dissenting.", - "current_to": "2019-05-10", - "last_amended": "", - "history": "[2019] 2 SCR 467", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" - }, - { - "id": "scc-1717-1", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 1–2", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "L’Heureux-Dubé J. -- Regulations made pursuant to s. 114(2) of the Immigration Act, R.S.C., 1985, c. I-2, empower the respondent Minister to facilitate the admission to Canada of a person where the Minister is satisfied, owing to humanitarian and compassionate considerations, that admission should be facilitated or an exemption from the regulations made under the Act should be granted. At the centre of this appeal is the approach to be taken by a court to judicial review of such decisions, both on procedural and substantive grounds. It also raises issues of reasonable apprehension of bias, the provision of written reasons as part of the duty of fairness, and the role of children’s interests in reviewing decisions made pursuant to s. 114(2). I. Factual Background\n\nMavis Baker is a citizen of Jamaica who entered Canada as a visitor in August of 1981 and has remained in Canada since then. She never received permanent resident status, but supported herself illegally as a live-in domestic worker for 11 years. She has had four children (who are all Canadian citizens) while living in Canada: Paul Brown, born in 1985, twins Patricia and Peter Robinson, born in 1989, and Desmond Robinson, born in 1992. After Desmond was born, Ms. Baker suffered from post-partum psychosis and was diagnosed with paranoid schizophrenia. She applied for welfare at that time. When she was first diagnosed with mental illness, two of her children were placed in the care of their natural father, and the other two were placed in foster care. The two who were in foster care are now again under her care, since her condition has improved.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-2", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 3–4", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant was ordered deported in December 1992, after it was determined that she had worked illegally in Canada and had overstayed her visitor’s visa. In 1993, Ms. Baker applied for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate considerations, pursuant to s. 114(2) of the Immigration Act. She had the assistance of counsel in filing this application, and included, among other documentation, submissions from her lawyer, a letter from her doctor, and a letter from a social worker with the Children’s Aid Society. The documentation provided indicated that, although she was still experiencing psychiatric problems, she was making progress. It also stated that she might become ill again if she were forced to return to Jamaica, since treatment might not be available for her there. Ms. Baker’s submissions also clearly indicated that she was the sole caregiver for two of her Canadian-born children, and that the other two depended on her for emotional support and were in regular contact with her. The documentation suggested that she too would suffer emotional hardship if she were separated from them.\n\nThe response to this request was contained in a letter dated April 18, 1994 and signed by Immigration Officer M. Caden, stating that a decision had been made that there were insufficient humanitarian and compassionate grounds to warrant processing Ms. Baker’s application for permanent residence within Canada. This letter contained no reasons for the decision.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-3", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 5", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Upon request of the appellant’s counsel, she was provided with the notes made by Immigration Officer G. Lorenz, which were used by Officer Caden when making his decision. After a summary of the history of the case, Lorenz’s notes read as follows: PC is unemployed - on Welfare. No income shown - no assets. Has four Cdn.-born children- four other children in Jamaica- HAS A TOTAL OF EIGHT CHILDREN Says only two children are in her “direct custody”. (No info on who has ghe [sic] other two). There is nothing for her in Jamaica - hasn’t been there in a long time - no longer close to her children there - no jobs there - she has no skills other than as a domestic - children would suffer - can’t take them with her and can’t leave them with anyone here. Says has suffered from a mental disorder since ’81 - is now an outpatient and is improving. If sent back will have a relapse. Letter from Children’s Aid - they say PC has been diagnosed as a paranoid schizophrenic. - children would suffer if returned - Letter of Aug. ’93 from psychiatrist from Ont. Govm’t. Says PC had post-partum psychosis and had a brief episode of psychosis in Jam. when was 25 yrs. old. Is now an out-patient and is doing relatively well - deportation would be an extremely stressful experience. Lawyer says PS [sic] is sole caregiver and single parent of two Cdn born children. Pc’s mental condition would suffer a setback if she is deported etc. This case is a catastrophy [sic]. It is also an indictment of our “system” that the client came as a visitor in Aug. ’81, was not ordered deported until Dec. ’92 and in APRIL ’94 IS STILL HERE! The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-4", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 5–6", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity. However, because of the circumstances involved, there is a potential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region. There is also a potential for violence - see charge of “assault with a weapon” [Capitalization in original.]\n\nFollowing the refusal of her application, Ms. Baker was served, on May 27, 1994, with a direction to report to Pearson Airport on June 17 for removal from Canada. Her deportation has been stayed pending the result of this appeal. II. Relevant Statutory Provisions and Provisions of International Treaties", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-5", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 7", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Immigration Act, R.S.C., 1985, c. I-2 82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court -- Trial Division. 83. (1) A judgment of the Federal Court -- Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court -- Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. 114. . . . (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. Immigration Regulations, 1978, SOR/78-172, as amended by SOR/93-44 2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. Convention on the Rights of the Child, Can. T.S. 1992 No. 3 Article 3 1.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-6", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 7", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. 4.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-7", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 7", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned. Article 12 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. III. Judgments A. Federal Court -- Trial Division (1995), 101 F.T.R. 110", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-8", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 8", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Simpson J. delivered oral reasons dismissing the appellant’s judicial review application. She held that since there were no reasons given by Officer Caden for his decision, no affidavit was provided, and no reasons were required, she would assume, in the absence of evidence to the contrary, that he acted in good faith and made a decision based on correct principles. She rejected the appellant’s argument that the statement in Officer Lorenz’s notes that Ms. Baker would be a strain on the welfare system was not supported by the evidence, holding that it was reasonable to conclude from the reports provided that Ms. Baker would not be able to return to work. She held that the language of Officer Lorenz did not raise a reasonable apprehension of bias, and also found that the views expressed in his notes were unimportant, because they were not those of the decision-maker, Officer Caden. She rejected the appellant’s argument that the Convention on the Rights of the Child mandated that the appellant’s interests be given priority in s. 114(2) decisions, holding that the Convention did not apply to this situation, and was not part of domestic law. She also held that the evidence showed the children were a significant factor in the decision-making process. She rejected the appellant’s submission that the Convention gave rise to a legitimate expectation that the children’s interests would be a primary consideration in the decision.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-9", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 9", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Simpson J. certified the following as a “serious question of general importance” under s. 83(1) of the Immigration Act: “Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?” B. Federal Court of Appeal, [1997] 2 F.C. 127", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-10", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 10", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The reasons of the Court of Appeal were delivered by Strayer J.A. He held that pursuant to s. 83(1) of the Immigration Act, the appeal was limited to the question certified by Simpson J. He also rejected the appellant’s request to challenge the constitutional validity of s. 83(1). Strayer J.A. noted that a treaty cannot have legal effect in Canada unless implemented through domestic legislation, and that the Convention had not been adopted in either federal or provincial legislation. He held that although legislation should be interpreted, where possible, to avoid conflicts with Canada’s international obligations, interpreting s. 114(2) to require that the discretion it provides for must be exercised in accordance with the Convention would interfere with the separation of powers between the executive and legislature. He held that such a principle could also alter rights and obligations within the jurisdiction of provincial legislatures. Strayer J.A. also rejected the argument that any articles of the Convention could be interpreted to impose an obligation upon the government to give primacy to the interests of the children in a proceeding such as deportation. He held that the deportation of a parent was not a decision “concerning” children within the meaning of article 3. Finally, Strayer J.A. considered the appellant’s argument based on the doctrine of legitimate expectations. He noted that because the doctrine does not create substantive rights, and because a requirement that the best interests of the children be given primacy by a decision-maker under s. 114(2) would be to create a substantive right, the doctrine did not apply. IV. Issues", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-11", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 11", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Because, in my view, the issues raised can be resolved under the principles of administrative law and statutory interpretation, I find it unnecessary to consider the various Charter issues raised by the appellant and the interveners who supported her position. The issues raised by this appeal are therefore as follows: (1) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review? (2) Were the principles of procedural fairness violated in this case? (i) Were the participatory rights accorded consistent with the duty of procedural fairness? (ii) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness? (iii) Was there a reasonable apprehension of bias in the making of this decision? (3) Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker’s children? I note that it is the third issue that raises directly the issues contained in the certified question of general importance stated by Simpson J. V. Analysis A. Stated Questions Under Section 83(1) of the Immigration Act", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-12", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 12", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court of Appeal held, in accordance with its decision in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4, that the requirement, in s. 83(1), that a “serious question of general importance” be certified for an appeal to be permitted restricts an appeal court to addressing the issues raised by the certified question. However, in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 25, this Court held that s. 83(1) does not require that the Court of Appeal address only the stated question and issues related to it: The certification of a “question of general importance” is the trigger by which an appeal is justified. The object of the appeal is still the judgment itself, not merely the certified question. Rothstein J. noted in Ramoutar v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 370 (T.D.), that once a question has been certified, all aspects of the appeal may be considered by the Court of Appeal, within its jurisdiction. I agree. The wording of s. 83(1) suggests, and Pushpanathan confirms, that if a “question of general importance” has been certified, this allows for an appeal from the judgment of the Trial Division which would otherwise not be permitted, but does not confine the Court of Appeal or this Court to answering the stated question or issues directly related to it. All issues raised by the appeal may therefore be considered here. B. The Statutory Scheme and the Nature of the Decision", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-13", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 13–14", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Before examining the various grounds for judicial review, it is appropriate to discuss briefly the nature of the decision made under s. 114(2) of the Immigration Act, the role of this decision in the statutory scheme, and the guidelines given by the Minister to immigration officers in relation to it.\n\nSection 114(2) itself authorizes the Governor in Council to authorize the Minister to exempt a person from a regulation made under the Act, or to facilitate the admission to Canada of any person. The Minister’s power to grant an exemption based on humanitarian and compassionate (H & C) considerations arises from s. 2.1 of the Immigration Regulations, which I reproduce for convenience: The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. For the purpose of clarity, I will refer throughout these reasons to decisions made pursuant to the combination of s. 114(2) of the Act and s. 2.1 of the Regulations as “H & C decisions”.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-14", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 15", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Applications for permanent residence must, as a general rule, be made from outside Canada, pursuant to s. 9(1) of the Act. One of the exceptions to this is when admission is facilitated owing to the existence of compassionate or humanitarian considerations. In law, pursuant to the Act and the Regulations, an H & C decision is made by the Minister, though in practice, this decision is dealt with in the name of the Minister by immigration officers: see, for example, Minister of Employment and Immigration v. Jiminez-Perez, [1984] 2 S.C.R. 565, at p. 569. In addition, while in law, the H & C decision is one that provides for an exemption from regulations or from the Act, in practice, it is one that, in cases like this one, determines whether a person who has been in Canada but does not have status can stay in the country or will be required to leave a place where he or she has become established. It is an important decision that affects in a fundamental manner the future of individuals’ lives. In addition, it may also have an important impact on the lives of any Canadian children of the person whose humanitarian and compassionate application is being considered, since they may be separated from one of their parents and/or uprooted from their country of citizenship, where they have settled and have connections.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-15", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 16", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Immigration officers who make H & C decisions are provided with a set of guidelines, contained in chapter 9 of the Immigration Manual: Examination and Enforcement. The guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them. These guidelines are also available to the public. A number of statements in the guidelines are relevant to Ms. Baker’s application. Guideline 9.05 emphasizes that officers have a duty to decide which cases should be given a favourable recommendation, by carefully considering all aspects of the case, using their best judgment and asking themselves what a reasonable person would do in such a situation. It also states that although officers are not expected to “delve into areas which are not presented during examination or interviews, they should attempt to clarify possible humanitarian grounds and public policy considerations even if these are not well articulated”.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-16", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 17", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The guidelines also set out the bases upon which the discretion conferred by s. 114(2) and the Regulations should be exercised. Two different types of criteria that may lead to a positive s. 114(2) decision are outlined -- public policy considerations and humanitarian and compassionate grounds. Immigration officers are instructed, under guideline 9.07, to assure themselves, first, whether a public policy consideration is present, and if there is none, whether humanitarian and compassionate circumstances exist. Public policy reasons include marriage to a Canadian resident, the fact that the person has lived in Canada, has become established, and has become an “illegal de facto resident”, and the fact that the person may be a long-term holder of employment authorization or has worked as a foreign domestic. Guideline 9.07 states that humanitarian and compassionate grounds will exist if “unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada”. The guidelines also directly address situations involving family dependency, and emphasize that the requirement that a person leave Canada to apply from abroad may result in hardship for close family members of a Canadian resident, whether parents, children, or others who are close to the claimant, but not related by blood. They note that in such cases, the reasons why the person did not apply from abroad and the existence of family or other support in the person’s home country should also be considered. C. Procedural Fairness", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-17", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 18–19", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first ground upon which the appellant challenges the decision made by Officer Caden is the allegation that she was not accorded procedural fairness. She suggests that the following procedures are required by the duty of fairness when parents have Canadian children and they make an H & C application: an oral interview before the decision-maker, notice to her children and the other parent of that interview, a right for the children and the other parent to make submissions at that interview, and notice to the other parent of the interview and of that person’s right to have counsel present. She also alleges that procedural fairness requires the provision of reasons by the decision-maker, Officer Caden, and that the notes of Officer Lorenz give rise to a reasonable apprehension of bias.\n\nIn addressing the fairness issues, I will consider first the principles relevant to the determination of the content of the duty of procedural fairness, and then address Ms. Baker’s arguments that she was accorded insufficient participatory rights, that a duty to give reasons existed, and that there was a reasonable apprehension of bias.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-18", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 20–21", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Both parties agree that a duty of procedural fairness applies to H & C decisions. The fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty of fairness: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653. Clearly, the determination of whether an applicant will be exempted from the requirements of the Act falls within this category, and it has been long recognized that the duty of fairness applies to H & C decisions: Sobrie v. Canada (Minister of Employment and Immigration) (1987), 3 Imm. L.R. (2d) 81 (F.C.T.D.), at p. 88; Said v. Canada (Minister of Employment and Immigration) (1992), 6 Admin. L.R. (2d) 23 (F.C.T.D.); Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.). (1) Factors Affecting the Content of the Duty of Fairness\n\nThe existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. As I wrote in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal, supra, at p. 654; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-19", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 22", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-20", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 23", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances. One important consideration is the nature of the decision being made and the process followed in making it. In Knight, supra, at p. 683, it was held that “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making”. The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. See also Old St. Boniface, supra, at p. 1191; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.), at p. 118; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p. 896, per Sopinka J.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-21", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 24", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "A second factor is the nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”: Old St. Boniface, supra, at p. 1191. The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted: see D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 7-66 to 7-67.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-22", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 25", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1113: A high standard of justice is required when the right to continue in one’s profession or employment is at stake. . . . A disciplinary suspension can have grave and permanent consequences upon a professional career. As Sedley J. (now Sedley L.J.) stated in R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651 (Q.B.), at p. 667: In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts, and public law has since Ridge v. Baldwin [1963] 2 All E.R. 66, [1964] A.C. 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it “judicial” in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body. The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-23", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 26", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.). Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded: D. J. Mullan, Administrative Law (3rd ed. 1996), at pp. 214-15; D. Shapiro, “Legitimate Expectation and its Application to Canadian Immigration Law” (1992), 8 J.L. & Social Pol’y 282, at p. 297; Canada (Attorney General) v. Human Rights Tribunal Panel (Canada) (1994), 76 F.T.R. 1. Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-24", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 26–28", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.\n\nFifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, per Gonthier J.\n\nI should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights. The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. (2) Legitimate Expectations", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-25", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 29", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "I turn now to an application of these principles to the circumstances of this case to determine whether the procedures followed respected the duty of procedural fairness. I will first determine whether the duty of procedural fairness that would otherwise be applicable is affected, as the appellant argues, by the existence of a legitimate expectation based upon the text of the articles of the Convention and the fact that Canada has ratified it. In my view, however, the articles of the Convention and their wording did not give rise to a legitimate expectation on the part of Ms. Baker that when the decision on her H & C application was made, specific procedural rights above what would normally be required under the duty of fairness would be accorded, a positive finding would be made, or particular criteria would be applied. This Convention is not, in my view, the equivalent of a government representation about how H & C applications will be decided, nor does it suggest that any rights beyond the participatory rights discussed below will be accorded. Therefore, in this case there is no legitimate expectation affecting the content of the duty of fairness, and the fourth factor outlined above therefore does not affect the analysis. It is unnecessary to decide whether an international instrument ratified by Canada could, in other circumstances, give rise to a legitimate expectation. (3) Participatory Rights", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-26", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 30", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The next issue is whether, taking into account the other factors related to the determination of the content of the duty of fairness, the failure to accord an oral hearing and give notice to Ms. Baker or her children was inconsistent with the participatory rights required by the duty of fairness in these circumstances. At the heart of this analysis is whether, considering all the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully and fairly. The procedure in this case consisted of a written application with supporting documentation, which was summarized by the junior officer (Lorenz), with a recommendation being made by that officer. The summary, recommendation, and material was then considered by the senior officer (Caden), who made the decision.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-27", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 31", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Several of the factors described above enter into the determination of the type of participatory rights the duty of procedural fairness requires in the circumstances. First, an H & C decision is very different from a judicial decision, since it involves the exercise of considerable discretion and requires the consideration of multiple factors. Second, its role is also, within the statutory scheme, as an exception to the general principles of Canadian immigration law. These factors militate in favour of more relaxed requirements under the duty of fairness. On the other hand, there is no appeal procedure, although judicial review may be applied for with leave of the Federal Court -- Trial Division. In addition, considering the third factor, this is a decision that in practice has exceptional importance to the lives of those with an interest in its result -- the claimant and his or her close family members -- and this leads to the content of the duty of fairness being more extensive. Finally, applying the fifth factor described above, the statute accords considerable flexibility to the Minister to decide on the proper procedure, and immigration officers, as a matter of practice, do not conduct interviews in all cases. The institutional practices and choices made by the Minister are significant, though of course not determinative factors to be considered in the analysis. Thus, it can be seen that although some of the factors suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-28", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 32–33", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Balancing these factors, I disagree with the holding of the Federal Court of Appeal in Shah, supra, at p. 239, that the duty of fairness owed in these circumstances is simply “minimal”. Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.\n\nHowever, it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations. The Federal Court has held that procedural fairness does not require an oral hearing in these circumstances: see, for example, Said, supra, at p. 30.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-29", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 34", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "I agree that an oral hearing is not a general requirement for H & C decisions. An interview is not essential for the information relevant to an H & C application to be put before an immigration officer, so that the humanitarian and compassionate considerations presented may be considered in their entirety and in a fair manner. In this case, the appellant had the opportunity to put forward, in written form through her lawyer, information about her situation, her children and their emotional dependence on her, and documentation in support of her application from a social worker at the Children’s Aid Society and from her psychiatrist. These documents were before the decision-makers, and they contained the information relevant to making this decision. Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not, in my opinion, constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances, particularly given the fact that several of the factors point toward a more relaxed standard. The opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case. (4) The Provision of Reasons", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-30", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 35–36", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant also submits that the duty of fairness, in these circumstances, requires that reasons be given by the decision-maker. She argues either that the notes of Officer Lorenz should be considered the reasons for the decision, or that it should be held that the failure of Officer Caden to give written reasons for his decision or a subsequent affidavit explaining them should be taken to be a breach of the principles of fairness.\n\nThis issue has been addressed in several cases of judicial review of humanitarian and compassionate applications. The Federal Court of Appeal has held that reasons are unnecessary: Shah, supra, at pp. 239-40. It has also been held that the case history notes prepared by a subordinate officer are not to be considered the decision-maker’s reasons: see Tylo v. Minister of Employment and Immigration (1995), 90 F.T.R. 157, at pp. 159-60. In Gheorlan v. Canada (Secretary of State) (1995), 26 Imm. L.R. (2d) 170 (F.C.T.D.), and Chan v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 62, it was held that the notes of the reviewing officer should not be taken to be the reasons for decision, but may help in determining whether a reviewable error exists. In Marques v. Canada (Minister of Citizenship and Immigration) (No. 1) (1995), 116 F.T.R. 241, an H & C decision was set aside because the decision-making officer failed to provide reasons or an affidavit explaining the reasons for his decision.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-31", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 37–38", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "More generally, the traditional position at common law has been that the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions: Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684; Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219, at p. 233; Public Service Board of New South Wales v. Osmond (1986), 159 C.L.R. 656 (H.C.A.), at pp. 665-66.\n\nCourts and commentators have, however, often emphasized the usefulness of reasons in ensuring fair and transparent decision-making. Though Northwestern Utilities dealt with a statutory obligation to give reasons, Estey J. held as follows, at p. 706, referring to the desirability of a common law reasons requirement: This obligation is a salutary one. It reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal. . . . The importance of reasons was recently reemphasized by this Court in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at paras. 180-81.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-32", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 39", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: R. A. Macdonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123, at p. 146; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.), at para. 38. Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given: de Smith, Woolf, & Jowell, Judicial Review of Administrative Action (5th ed. 1995), at pp. 459-60. I agree that these are significant benefits of written reasons.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-33", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 40", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Others have expressed concerns about the desirability of a written reasons requirement at common law. In Osmond, supra, Gibbs C.J. articulated, at p. 668, the concern that a reasons requirement may lead to an inappropriate burden being imposed on administrative decision-makers, that it may lead to increased cost and delay, and that it “might in some cases induce a lack of candour on the part of the administrative officers concerned”. Macdonald and Lametti, supra, though they agree that fairness should require the provision of reasons in certain circumstances, caution against a requirement of “archival” reasons associated with court judgments, and note that the special nature of agency decision-making in different contexts should be considered in evaluating reasons requirements. In my view, however, these concerns can be accommodated by ensuring that any reasons requirement under the duty of fairness leaves sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-34", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 41", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "In England, a common law right to reasons in certain circumstances has developed in the case law: see M. H. Morris, “Administrative Decision-makers and the Duty to Give Reasons: An Emerging Debate” (1997), 11 C.J.A.L.P. 155, at pp. 164-68; de Smith, Woolf & Jowell, supra, at pp. 462-65. In R. v. Civil Service Appeal Board, ex parte Cunningham, [1991] 4 All E.R. 310 (C.A.), reasons were required of a board deciding the appeal of the dismissal of a prison official. The House of Lords, in R. v. Secretary of State for the Home Department, ex parte Doody, [1994] 1 A.C. 531, imposed a reasons requirement on the Home Secretary when exercising the statutory discretion to decide on the period of imprisonment that a prisoner who had been imposed a life sentence should serve before being entitled to a review. Lord Mustill, speaking for all the law lords on the case, held that although there was no general duty to give reasons at common law, in those circumstances, a failure to give reasons was unfair. Other English cases have held that reasons are required at common law when there is a statutory right of appeal: see Norton Tool Co. v. Tewson, [1973] 1 W.L.R. 45 (N.I.R.C.), at p. 49; Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] I.C.R. 120 (N.I.R.C.).", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-35", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 42", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Some Canadian courts have imposed, in certain circumstances, a common law obligation on administrative decision-makers to provide reasons, while others have been more reluctant. In Orlowski v. British Columbia (Attorney-General) (1992), 94 D.L.R. (4th) 541 (B.C.C.A.), at pp. 551-52, it was held that reasons would generally be required for decisions of a review board under Part XX.1 of the Criminal Code , based in part on the existence of a statutory right of appeal from that decision, and also on the importance of the interests affected by the decision. In R.D.R. Construction Ltd. v. Rent Review Commission (1982), 55 N.S.R. (2d) 71 (C.A.), the court also held that because of the existence of a statutory right of appeal, there was an implied duty to give reasons. Smith D.J., in Taabea v. Refugee Status Advisory Committee, [1980] 2 F.C. 316 (T.D.), imposed a reasons requirement on a ministerial decision relating to refugee status, based upon the right to apply to the Immigration Appeal Board for redetermination. Similarly, in the context of evaluating whether a statutory reasons requirement had been adequately fulfilled in Boyle v. Workplace Health, Safety and Compensation Commission (N.B.) (1996), 179 N.B.R. (2d) 43 (C.A.), Bastarache J.A. (as he then was) emphasized, at p. 55, the importance of adequate reasons when appealing a decision. However, the Federal Court of Appeal recently rejected the submission that reasons were required in relation to a decision to declare a permanent resident a danger to the public under s. 70(5) of the Immigration Act: Williams, supra.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-36", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 43", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-37", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 44", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision. Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary, as emphasized by Macdonald and Lametti, supra, when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways. I conclude that the notes of Officer Lorenz satisfy the requirement for reasons under the duty of procedural fairness in this case, and they will be taken to be the reasons for decision. (5) Reasonable Apprehension of Bias", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-38", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 45", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker. The respondent argues that Simpson J. was correct to find that the notes of Officer Lorenz cannot be considered to give rise to a reasonable apprehension of bias because it was Officer Caden who was the actual decision-maker, who was simply reviewing the recommendation prepared by his subordinate. In my opinion, the duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision. The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, the decision itself cannot be said to have been made in an impartial manner. In addition, as discussed in the previous section, the notes of Officer Lorenz constitute the reasons for the decision, and if they give rise to a reasonable apprehension of bias, this taints the decision itself.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-39", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 46", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The test for reasonable apprehension of bias was set out by de Grandpré J., writing in dissent, in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394: . . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . [T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” This expression of the test has often been endorsed by this Court, most recently in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 11, per Major J.; at para. 31, per L’Heureux-Dubé and McLachlin JJ.; and at para. 111, per Cory J.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-40", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 47", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Old St. Boniface, supra, at p. 1192. The context here is one where immigration officers must regularly make decisions that have great importance to the individuals affected by them, but are also often critical to the interests of Canada as a country. They are individualized, rather than decisions of a general nature. They also require special sensitivity. Canada is a nation made up largely of people whose families migrated here in recent centuries. Our history is one that shows the importance of immigration, and our society shows the benefits of having a diversity of people whose origins are in a multitude of places around the world. Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, an understanding of others, and an openness to difference.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-41", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 48", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my opinion, the well-informed member of the community would perceive bias when reading Officer Lorenz’s comments. His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. Most unfortunate is the fact that they seem to make a link between Ms. Baker’s mental illness, her training as a domestic worker, the fact that she has several children, and the conclusion that she would therefore be a strain on our social welfare system for the rest of her life. In addition, the conclusion drawn was contrary to the psychiatrist’s letter, which stated that, with treatment, Ms. Baker could remain well and return to being a productive member of society. Whether they were intended in this manner or not, these statements give the impression that Officer Lorenz may have been drawing conclusions based not on the evidence before him, but on the fact that Ms. Baker was a single mother with several children, and had been diagnosed with a psychiatric illness. His use of capitals to highlight the number of Ms. Baker’s children may also suggest to a reader that this was a reason to deny her status. Reading his comments, I do not believe that a reasonable and well-informed member of the community would conclude that he had approached this case with the impartiality appropriate to a decision made by an immigration officer. It would appear to a reasonable observer that his own frustration with the “system” interfered with his duty to consider impartially whether the appellant’s admission should be facilitated owing to humanitarian or compassionate considerations. I conclude that the notes of Officer Lorenz demonstrate a reasonable apprehension of bias. D.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-42", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 48–50", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Review of the Exercise of the Minister’s Discretion\n\nAlthough the finding of reasonable apprehension of bias is sufficient to dispose of this appeal, it does not address the issues contained in the “serious question of general importance” which was certified by Simpson J. relating to the approach to be taken to children’s interests when reviewing the exercise of the discretion conferred by the Act and the Regulations. Since it is important to address the central questions which led to this appeal, I will also consider whether, as a substantive matter, the H & C decision was improperly made in this case.\n\nThe appellant argues that the notes provided to her show that, as a matter of law, the decision should be overturned on judicial review. She submits that the decision should be held to a standard of review of correctness, that principles of administrative law require this discretion to be exercised in accordance with the Convention, and that the Minister should apply the best interests of the child as a primary consideration in H & C decisions. The respondent submits that the Convention has not been implemented in Canadian law, and that to require that s. 114(2) and the Regulations made under it be interpreted in accordance with the Convention would be improper, since it would interfere with the broad discretion granted by Parliament, and with the division of powers between the federal and provincial governments. (1) The Approach to Review of Discretionary Decision-Making", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-43", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 51–52", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "As stated earlier, the legislation and Regulations delegate considerable discretion to the Minister in deciding whether an exemption should be granted based upon humanitarian and compassionate considerations. The Regulations state that “[t]he Minister is . . . authorized to” grant an exemption or otherwise facilitate the admission to Canada of any person “where the Minister is satisfied that” this should be done “owing to the existence of compassionate or humanitarian considerations”. This language signals an intention to leave considerable choice to the Minister on the question of whether to grant an H & C application.\n\nThe concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries. As K. C. Davis wrote in Discretionary Justice (1969), at p. 4: A public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction. It is necessary in this case to consider the approach to judicial review of administrative discretion, taking into account the “pragmatic and functional” approach to judicial review that was first articulated in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and has been applied in subsequent cases including Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at pp. 601-7, per L’Heureux-Dubé J., dissenting, but not on this issue; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; and Pushpanathan, supra.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-44", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 53", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations: see, for example, Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pp. 7-8; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231. A general doctrine of “unreasonableness” has also sometimes been applied to discretionary decisions: Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223 (C.A.). In my opinion, these doctrines incorporate two central ideas -- that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker’s jurisdiction. These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-45", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 53–54", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "121), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038).\n\nIt is, however, inaccurate to speak of a rigid dichotomy of “discretionary” or “non-discretionary” decisions. Most administrative decisions involve the exercise of implicit discretion in relation to many aspects of decision making. To give just one example, decision-makers may have considerable discretion as to the remedies they order. In addition, there is no easy distinction to be made between interpretation and the exercise of discretion; interpreting legal rules involves considerable discretion to clarify, fill in legislative gaps, and make choices among various options. As stated by Brown and Evans, supra, at p. 14-47: The degree of discretion in a grant of power can range from one where the decision-maker is constrained only by the purposes and objects of the legislation, to one where it is so specific that there is almost no discretion involved. In between, of course, there may be any number of limitations placed on the decision-maker’s freedom of choice, sometimes referred to as “structured” discretion.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-46", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 55", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The “pragmatic and functional” approach recognizes that standards of review for errors of law are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less: Pezim, supra, at pp. 589-90; Southam, supra, at para. 30; Pushpanathan, supra, at para. 27. Three standards of review have been defined: patent unreasonableness, reasonableness simpliciter, and correctness: Southam, at paras. 54-56. In my opinion the standard of review of the substantive aspects of discretionary decisions is best approached within this framework, especially given the difficulty in making rigid classifications between discretionary and non-discretionary decisions. The pragmatic and functional approach takes into account considerations such as the expertise of the tribunal, the nature of the decision being made, and the language of the provision and the surrounding legislation. It includes factors such as whether a decision is “polycentric” and the intention revealed by the statutory language. The amount of choice left by Parliament to the administrative decision-maker and the nature of the decision being made are also important considerations in the analysis. The spectrum of standards of review can incorporate the principle that, in certain cases, the legislature has demonstrated its intention to leave greater choices to decision-makers than in others, but that a court must intervene where such a decision is outside the scope of the power accorded by Parliament. Finally, I would note that this Court has already applied this framework to statutory provisions that confer significant choices on administrative bodies, for example, in reviewing the exercise of the remedial powers conferred by the statute at issue in Southam, supra.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-47", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 56–57", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Incorporating judicial review of decisions that involve considerable discretion into the pragmatic and functional analysis for errors of law should not be seen as reducing the level of deference given to decisions of a highly discretionary nature. In fact, deferential standards of review may give substantial leeway to the discretionary decision-maker in determining the “proper purposes” or “relevant considerations” involved in making a given determination. The pragmatic and functional approach can take into account the fact that the more discretion that is left to a decision-maker, the more reluctant courts should be to interfere with the manner in which decision-makers have made choices among various options. However, though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter . (2) The Standard of Review in This Case\n\nI turn now to an application of the pragmatic and functional approach to determine the appropriate standard of review for decisions made under s. 114(2) and Regulation 2.1, and the factors affecting the determination of that standard outlined in Pushpanathan, supra. It was held in that case that the decision, which related to the determination of a question of law by the Immigration and Refugee Board, was subject to a standard of review of correctness. Although that decision was also one made under the Immigration Act, the type of decision at issue was very different, as was the decision-maker. The appropriate standard of review must, therefore, be considered separately in the present case.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-48", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 58–59", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first factor to be examined is the presence or absence of a privative clause, and, in appropriate cases, the wording of that clause: Pushpanathan, at para. 30. There is no privative clause contained in the Immigration Act, although judicial review cannot be commenced without leave of the Federal Court -- Trial Division under s. 82.1. As mentioned above, s. 83(1) requires the certification of a “serious question of general importance” by the Federal Court -- Trial Division before that decision may be appealed to the Court of Appeal. Pushpanathan shows that the existence of this provision means there should be a lower level of deference on issues related to the certified question itself. However, this is only one of the factors involved in determining the standard of review, and the others must also be considered.\n\nThe second factor is the expertise of the decision-maker. The decision- maker here is the Minister of Citizenship and Immigration or his or her delegate. The fact that the formal decision-maker is the Minister is a factor militating in favour of deference. The Minister has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-49", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 60–61", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The third factor is the purpose of the provision in particular, and of the Act as a whole. This decision involves considerable choice on the part of the Minister in determining when humanitarian and compassionate considerations warrant an exemption from the requirements of the Act. The decision also involves applying relatively “open-textured” legal principles, a factor militating in favour of greater deference: Pushpanathan, supra, at para. 36. The purpose of the provision in question is also to exempt applicants, in certain circumstances, from the requirements of the Act or its Regulations. This factor, too, is a signal that greater deference should be given to the Minister. However, it should also be noted, in favour of a stricter standard, that this decision relates directly to the rights and interests of an individual in relation to the government, rather than balancing the interests of various constituencies or mediating between them. Its purpose is to decide whether the admission to Canada of a particular individual, in a given set of circumstances, should be facilitated.\n\nThe fourth factor outlined in Pushpanathan considers the nature of the problem in question, especially whether it relates to the determination of law or facts. The decision about whether to grant an H & C exemption involves a considerable appreciation of the facts of that person’s case, and is not one which involves the application or interpretation of definitive legal rules. Given the highly discretionary and fact-based nature of this decision, this is a factor militating in favour of deference.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-50", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 62", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as “patent unreasonableness”. I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter. (3) Was this Decision Unreasonable?", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-51", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 63–64", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "I will next examine whether the decision in this case, and the immigration officer’s interpretation of the scope of the discretion conferred upon him, were unreasonable in the sense contemplated in the judgment of Iacobucci J. in Southam, supra, at para. 56: An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. In particular, the examination of this question should focus on the issues arising from the “serious question of general importance” stated by Simpson J.: the question of the approach to be taken to the interests of children when reviewing an H & C decision.\n\nThe notes of Officer Lorenz, in relation to the consideration of “H & C factors”, read as follows: The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-52", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 65", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my opinion, the approach taken to the children’s interests shows that this decision was unreasonable in the sense contemplated in Southam, supra. The officer was completely dismissive of the interests of Ms. Baker’s children. As I will outline in detail in the paragraphs that follow, I believe that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of the immigration officer. Professor Dyzenhaus has articulated the concept of “deference as respect” as follows: Deference as respect requires not submission but a respectful attention to the reasons offered or which could be offered in support of a decision. . . . (D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286.) The reasons of the immigration officer show that his decision was inconsistent with the values underlying the grant of discretion. They therefore cannot stand up to the somewhat probing examination required by the standard of reasonableness.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-53", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 66", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The wording of s. 114(2) and of Regulation 2.1 requires that a decision-maker exercise the power based upon “compassionate or humanitarian considerations” (emphasis added). These words and their meaning must be central in determining whether an individual H & C decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person’s admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner. This Court has found that it is necessary for the Minister to consider an H & C request when an application is made: Jiminez-Perez, supra. Similarly, when considering it, the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-54", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 67", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Determining whether the approach taken by the immigration officer was within the boundaries set out by the words of the statute and the values of administrative law requires a contextual approach, as is taken to statutory interpretation generally: see R. v. Gladue, [1999] 1 S.C.R. 688; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 20-23. In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children. Children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children’s interests as important considerations governing the manner in which H & C powers should be exercised may be found, for example, in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself. (a) The Objectives of the Act", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-55", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 68–69", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The objectives of the Act include, in s. 3(c): to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad; Although this provision speaks of Parliament’s objective of reuniting citizens and permanent residents with their close relatives from abroad, it is consistent, in my opinion, with a large and liberal interpretation of the values underlying this legislation and its purposes to presume that Parliament also placed a high value on keeping citizens and permanent residents together with their close relatives who are already in Canada. The obligation to take seriously and place important weight on keeping children in contact with both parents, if possible, and maintaining connections between close family members is suggested by the objective articulated in s. 3(c). (b) International Law\n\nAnother indicator of the importance of considering the interests of children when making a compassionate and humanitarian decision is the ratification by Canada of the Convention on the Rights of the Child, and the recognition of the importance of children’s rights and the best interests of children in other international instruments ratified by Canada. International treaties and conventions are not part of Canadian law unless they have been implemented by statute: Francis v. The Queen, [1956] S.C.R. 618, at p. 621; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141, at pp. 172-73. I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-56", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 70", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330: [T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.] The important role of international human rights law as an aid in interpreting domestic law has also been emphasized in other common law countries: see, for example, Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257 (C.A.), at p. 266; Vishaka v. Rajasthan, [1997] 3 L.R.C. 361 (S.C. India), at p. 367. It is also a critical influence on the interpretation of the scope of the rights included in the Charter : Slaight Communications, supra; R. v. Keegstra, [1990] 3 S.C.R. 697.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-57", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 71", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The values and principles of the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future. In addition, the preamble, recalling the Universal Declaration of Human Rights, recognizes that “childhood is entitled to special care and assistance”. A similar emphasis on the importance of placing considerable value on the protection of children and their needs and interests is also contained in other international instruments. The United Nations Declaration of the Rights of the Child (1959), in its preamble, states that the child “needs special safeguards and care”. The principles of the Convention and other international instruments place special importance on protections for children and childhood, and on particular consideration of their interests, needs, and rights. They help show the values that are central in determining whether this decision was a reasonable exercise of the H & C power. (c) The Ministerial Guidelines", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-58", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 72", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "Third, the guidelines issued by the Minister to immigration officers recognize and reflect the values and approach discussed above and articulated in the Convention. As described above, immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-59", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 73", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the “humanitarian” and “compassionate” considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned. In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to Jamaica might cause Ms. Baker, given the fact that she had been in Canada for 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be separated from at least some of her children.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-60", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 74", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "It follows that I disagree with the Federal Court of Appeal’s holding in Shah, supra, at p. 239, that a s. 114(2) decision is “wholly a matter of judgment and discretion” (emphasis added). The wording of s. 114(2) and of the Regulations shows that the discretion granted is confined within certain boundaries. While I agree with the Court of Appeal that the Act gives the applicant no right to a particular outcome or to the application of a particular legal test, and that the doctrine of legitimate expectations does not mandate a result consistent with the wording of any international instruments, the decision must be made following an approach that respects humanitarian and compassionate values. Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner. While deference should be given to immigration officers on s. 114(2) judicial review applications, decisions cannot stand when the manner in which the decision was made and the approach taken are in conflict with humanitarian and compassionate values. The Minister’s guidelines themselves reflect this approach. However, the decision here was inconsistent with it.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-61", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 75–76", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. E. Conclusions and Disposition\n\nTherefore, both because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the H & C discretion was unreasonable, I would allow this appeal.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-62", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 77–78", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant requested that solicitor-client costs be awarded to her if she were successful in her appeal. The majority of this Court held as follows in Young v. Young, [1993] 4 S.C.R. 3, at p. 134: Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. There has been no such conduct on the part of the Minister shown during this litigation, and I do not believe that this is one of the exceptional cases where solicitor-client costs should be awarded. I would allow the appeal, and set aside the decision of Officer Caden of April 18, 1994, with party-and-party costs throughout. The matter will be returned to the Minister for redetermination by a different immigration officer. The reasons of Cory and Iacobucci JJ. were delivered by\n\nIacobucci J. - I agree with L’Heureux-Dubé J.’s reasons and disposition of this appeal, except to the extent that my colleague addresses the effect of international law on the exercise of ministerial discretion pursuant to s. 114(2) of the Immigration Act, R.S.C., 1985, c. I-2. The certified question at issue in this appeal concerns whether federal immigration authorities must treat the best interests of the child as a primary consideration in assessing an application for humanitarian and compassionate consideration under s. 114(2) of the Act, given that the legislation does not implement the provisions contained in the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, a multilateral convention to which Canada is party. In my opinion, the certified question should be answered in the negative.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-63", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "paras 79–80", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is a matter of well-settled law that an international convention ratified by the executive branch of government is of no force or effect within the Canadian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation: Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141. I do not agree with the approach adopted by my colleague, wherein reference is made to the underlying values of an unimplemented international treaty in the course of the contextual approach to statutory interpretation and administrative law, because such an approach is not in accordance with the Court’s jurisprudence concerning the status of international law within the domestic legal system.\n\nIn my view, one should proceed with caution in deciding matters of this nature, lest we adversely affect the balance maintained by our Parliamentary tradition, or inadvertently grant the executive the power to bind citizens without the necessity of involving the legislative branch. I do not share my colleague’s confidence that the Court’s precedent in Capital Cities, supra, survives intact following the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation. Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-1717-64", - "doc_type": "caselaw", - "act_code": "[1999] 2 SCR 817", - "act_short": "Baker", - "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", - "marginal_note": "para 81", - "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", - "part": "Supreme Court of Canada", - "division": "", - "text": "The primacy accorded to the rights of children in the Convention, assuming for the sake of argument that the factual circumstances of this appeal are included within the scope of the relevant provisions, is irrelevant unless and until such provisions are the subject of legislation enacted by Parliament. In answering the certified question in the negative, I am mindful that the result may well have been different had my colleague concluded that the appellant’s claim fell within the ambit of rights protected by the Canadian Charter of Rights and Freedoms . Had this been the case, the Court would have had an opportunity to consider the application of the interpretive presumption, established by the Court’s decision in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, and confirmed in subsequent jurisprudence, that administrative discretion involving Charter rights be exercised in accordance with similar international human rights norms. Appeal allowed with costs.", - "current_to": "1999-07-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" - }, - { - "id": "scc-39-1", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 1", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177\n\nHarbhajan Singh Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nSadhu Singh Thandi Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nParamjit Singh Mann Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nKewal Singh Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nCharanjit Singh Gill Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nIndrani Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nSatnam Singh Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nFederation of Canadian Sikh Societies and Canadian Council of Churches Interveners.\n\nFile Nos.: 18209, 17997, 17952, 17898, 18207, 18235, 17904.\n\n1984: April 30, May 1; 1985: April 4.\n\nPresent: Dickson C.J. and Ritchie*, Beetz, Estey, McIntyre, Lamer and Wilson JJ.\n\n*Ritchie J. took no part in the judgment.\n\non appeal from the federal court of appeal\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Security of the person ‑‑ Immigration ‑‑ Convention refugee ‑‑ Whether procedures for determination of refugee status in accordance with principles of fundamental justice ‑‑ Whether refugee claimants entitled to the protection of s. 7 of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 26 , 32(1) ‑‑ Constitution Act, 1982, s. 52(1) ‑‑ Immigration Act, 1976, 1976‑77 (Can.), c. 52, ss. 2, 45, 55, 70, 71.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-2", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 2", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "Constitutional law ‑‑ Charter of Rights ‑‑ Remedies ‑‑ Court of competent jurisdiction ‑‑ Appeals from applications for judicial review under s. 28 of the Federal Court Act ‑‑ Remedial power under s. 24(1) of the Charter limited to decisions made on a judicial or quasi‑judicial basis ‑‑ Canadian Charter of Rights and Freedoms, s. 24(1) ‑‑ Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28.\n\nCivil rights ‑‑ Immigration ‑‑ Convention refugee ‑‑ Whether procedures for determination of refugee status in accordance with principles of fundamental justice ‑‑ Remedy ‑‑ Canadian Bill of Rights, R.S.C. 1970, App. III, ss. 1, 2(e) ‑‑ Canadian Charter of Rights and Freedoms, s. 26 ‑‑ Immigration Act, 1976, 1976‑77 (Can.), c. 52, ss. 2, 71 ‑‑ Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.\n\nAppellants claim Convention refugee status as defined in s. 2(1) of the Immigration Act, 1976. The Minister of Employment and Immigration, acting on the advice of the Refugee Status Advisory Committee, determined pursuant to s. 45 of the Act that none of the appellants was a Convention refugee. The Immigration Appeal Board, acting under s. 71(1) of the Act, denied the subsequent applications for redetermination of status and the Federal Court of Appeal refused applications, made under s. 28 of the Federal Court Act, for judicial review of those decisions. The Court considered whether the procedures for the adjudication of refugee status claims set out in the Immigration Act, 1976 violate s. 7 of the Canadian Charter of Rights and Freedoms and s. 2(e) of the Canadian Bill of Rights.\n\nHeld: The appeals should be allowed.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-3", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 3", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "Per Dickson C.J. and Lamer and Wilson JJ.: Appellants, in the determination of their claims, are entitled to assert the protection of s. 7 of the Charter which guarantees \"everyone ... the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice\". The term \"everyone\" in s. 7 includes every person physically present in Canada and by virtue of such presence amenable to Canadian law. The phrase \"security of the person\" encompasses freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself. A Convention refugee has the right under s. 55 of the Immigration Act, 1976 not to \"... be removed from Canada to a country where his life or freedom would be threatened ...\". The denial of such a right amounts to a deprivation of \"security of the person\" within the meaning of s. 7. Although appellants are not entitled at this stage to assert rights as Convention refugees, having regard to the potential consequences for them of a denial of that status if they are in fact persons with a \"well‑founded fear of persecution\", they are entitled to fundamental justice in the adjudication of their status.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-4", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 4", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "The procedure for determining refugee status claims established in the Immigration Act, 1976 is inconsistent with the requirements of fundamental justice articulated in s. 7. At a minimum, the procedural scheme set up by the Act should provide the refugee claimant with an adequate opportunity to state his case and to know the case he has to meet. The administrative procedures, found in ss. 45 to 48 of the Immigration Act, 1976, require the Refugee Status Advisory Committee and the Minister to act fairly in carrying out their duties but do not envisage an opportunity for the refugee claimant to be heard other than through his claim and the transcript of his examination under oath. Further, the Act does not envisage the refugee claimant's being given an opportunity to comment on the advice the Refugee Status Advisory Committee has given the Minister. Under section 71(1) of the Act, the Immigration Appeal Board must reject an application for redetermination unless it is of the opinion that it is more likely than not that the applicant will be able to succeed. An application, therefore, will usually be rejected before the refugee claimant has even had an opportunity to discover the Minister's case against him in the context of a hearing. Such procedures do not accord the refugee claimant fundamental justice and are incompatible with s. 7 of the Charter . Respondent failed to demonstrate that these procedures constitute a reasonable limit on the appellants' rights within the meaning of s. 1 of the Charter . Pursuant to s. 52(1) of the Constitution Act, 1982 , s. 71(1) of the Immigration Act, 1976 is, to the extent of the inconsistency with s. 7, of no force and effect.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-5", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 5", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 24(1) of the Charter grants broad remedial powers to \"a court of competent jurisdiction\". This phrase premises the existence of jurisdiction from a source external to the Charter itself. These are appeals from the Federal Court of Appeal on applications for judicial review under s. 28 of the Federal Court Act. Accordingly, this Court's jurisdiction is no greater than that of the Federal Court of Appeal and is limited to decisions made on a judicial or quasi‑judicial basis. Only the decisions of the Immigration Appeal Board were therefore reviewable. All seven cases are remanded to the Board for a hearing on the merits in accordance with the principles of fundamental justice.\n\nCases Cited", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-6", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 6", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Queen v. Operation Dismantle Inc., [1983] 1 F.C. 745; Collin v. Lussier, [1983] 1 F.C. 218; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; Singh v. Minister of Employment and Immigration, [1982] 2 F.C. 689; Boun‑Leua v. Minister of Employment and Immigration, [1981] 1 F.C. 259; Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470; Brempong v. Minister of Employment and Immigration, [1981] 1 F.C. 211; Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639; Hurt v. Minister of Manpower and Immigration, [1978] 2 F.C. 340; Mensah v. Minister of Employment and Immigration, [1982] 1 F.C. 70; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373 (U.K.); Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Wieckowska v. Lanthier, [1980] 1 F.C. 655; Kwiatkowsky v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856, affirming (1980), 34 N.R. 237 (F.C.A.); Lugano v. Minister of Manpower and Immigration, [1976] 2 F.C. 438; Alliance des Professeurs Catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140; Singh v. Minister of Employment and Immigration, [1983] 2 F.C. 347; Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Morgentaler v. The Queen, [1976] 1 S.C.R. 616; Curr v. The Queen, [1972] S.C.R. 889; R. v. Berrie (1975), 24 C.C.C. (2d) 66; Rebrin v. Bird and Minister of Citizenship and Immigration, [1961] S.C.R. 376; Louie Yuet Sun v. The Queen, [1961] S.C.R. 70; U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); Mitchell v. The Queen, [1976] 2 S.C.R.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-7", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 7", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "570; The Japanese Immigrant Case, 189 U.S. 86 (1903); Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953); Immigration and Naturalization Service v. Chadha, 77 L Ed (2d) 317 (1983); Duke v. The Queen, [1972] S.C.R. 917; Stein v. The Ship \"Kathy K\", [1976] 2 S.C.R. 802; Permaul v. Minister of Employment and Immigration, F.C.A., No. A‑576‑83, November 24, 1983; Saraos v. Minister of Employment and Immigration, [1982] 1 F.C. 304; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; City of Toronto v. Outdoor Neon Displays Ltd., [1960] S.C.R. 307; Rescue Army v. Municipal Court, 331 U.S. 549 (1947), referred to.\n\nPer Beetz, Estey and McIntyre JJ.: The procedures followed for determining Convention refugee status in these cases are in conflict with s. 2(e) of the Canadian Bill of Rights. Where a process which comes under the legislative authority of the Parliament involves the determination of \"rights and obligations\", this paragraph grants the right to \"a fair hearing in accordance with the principles of fundamental justice\". These principles do not impose an oral hearing in all cases. The procedural content required by fundamental justice in any given case depends on the nature of the legal rights at issue and on the severity of the consequences to the individuals concerned. With respect to the type of hearing warranted in the circumstances, threats to life or liberty by a foreign power are relevant.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-8", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 8", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "Appellants' claims to refugee status have been denied without their being afforded a full oral hearing at a single stage of the proceedings before any of the bodies or officials empowered to adjudicate upon their claims on the merits. In order to comply with s. 2(e), such a hearing had to be held. Under the Immigration Act, 1976, a Convention refugee has the right to \"remain\" in Canada or, if a Minister's permit cannot be obtained, at least the right not to be removed to a country where life and freedom is threatened, and to re‑enter Canada if no safe country is willing to accept him. These rights are of vital importance to the appellants. Moreover, where life or liberty may depend on findings of fact and credibility, the opportunity to make written submissions, even if coupled with an opportunity to reply in writing to allegations of fact and law against interest, is not sufficient.\n\nThis Court, in these appeals from applications for judicial review under s. 28 of the Federal Court Act, is only concerned with the determination made by the Immigration Appeal Board pursuant to s. 71(1) of the Immigration Act, 1976. This subsection, as drafted, is inconsistant with the holding of an oral hearing and, accordingly, in these cases, is incompatible with s. 2(e) of the Canadian Bill of Rights. This Court declared \"inoperative\" in these cases all the words of s. 71(1) following the words \"Where the Board...consider the application\". The Immigration Appeal Board, as a result, will hold hearings on the merits to decide the cases and, in doing so, shall take into account only the facts or materials specified in s. 70(2) of the Act.\n\nCases Cited", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-9", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 9", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Queen v. Drybones, [1970] S.C.R. 282, applied; Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639, considered; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; Mitchell v. The Queen, [1976] 2 S.C.R. 570, distinguished; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109; Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12; Komo Construction Inc. v. Commission des relations de travail du Québec, [1968] S.C.R. 172; MacDonald v. The Queen, [1977] 2 S.C.R. 665; Kwiatkowski v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856, referred to.\n\nStatutes and Regulations Cited\n\nAct for the Recognition and Protection of Human Rights and Fundamental Freedoms, 1960 (Can.), c. 44, s. 5(2).\n\nCanada Evidence Act, 1980‑81‑82‑83 (Can.), c. 111, Schedule III, s. 36.1.\n\nCanadian Bill of Rights, R.S.C. 1970, App. III, ss. 1, 2(e).\n\nCanadian Charter of Rights and Freedoms , ss. 1 , 7 , 24(1) , 26 , 32(1) .\n\nConstitution Act, 1982 , s. 52(1) .\n\nFederal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28.\n\nImmigration Act, 1976, 1976‑77 (Can.), c. 52, ss. 2, 3g), 4, 5(1), 23, 27, 32, 37, 45 to 48, 55, 70, 71, 72.\n\nUnited Nations Convention Relating to the Status of Refugees, chap. 1, art. 1, para. A(2).\n\nUniversal Declaration of Human Rights (1948), art. 25(1).\n\nAuthors Cited\n\nCanada, Law Reform Commission. Working Paper No. 26, Medical Treatment and Criminal Law, Ottawa, Minister of Supply and Services Canada, 1980.\n\nCanada, Minister of Employment and Immigration. The Refugee Status Determination Process, Ottawa, 1981.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-10", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 10", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "Garant, Patrice. \"Fundamental Freedoms and Natural Justice\" in W. Tarnopolsky and G.‑A. Beaudoin (eds.), The Canadian Charter of Rights and Freedoms , Toronto, Carswell, 1982.\n\nManning, Morris. Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982, Toronto, Emond‑Montgomery, 1983.\n\nPue, W. Wesley. Natural Justice in Canada, Vancouver, Butterworth (Western Canada), 1981.\n\nScharpf, Fritz W. \"Judicial Review and the Political Question: A Functional Analysis\" (1966), 75 Yale L.J. 517.\n\nTarnopolsky, Walter. The Canadian Bill of Rights, 2nd ed., Toronto, McClelland & Stewart, 1975.\n\nAPPEALS from judgments of the Federal Court of Appeal dismissing appellants' applications for judicial review of decisions of the Immigration Appeal Board dismissing appellants' applications for redetermination of their refugee claims. Appeals allowed.\n\nIan Scott, Q.C., for the appellants Harbhajan Singh, Sadhu Singh Thandi, Paramjit Singh Mann, Kewal Singh, Charanjit Singh Gill and Indrani.\n\nC. D. Coveney, for the appellant Satnam Singh.\n\nE. A. Bowie, Q.C., and Roslyn Levine, for the respondent.\n\nMendel M. Green, Q.C., Barbara Jackman and Donald Chiasson, for the interveners.\n\nJUDGMENT\n\nThe appeals are allowed and the decisions of the Federal Court of Appeal and the Immigration Appeal Board are set aside. The applications of the appellants for redetermination of their refugee claims are remanded to the Immigration Appeal Board for a hearing on the merits in accordance with principles of fundamental justice.\n\nThe appellants are entitled to a declaration that s. 71(1) of the Immigration Act, 1976 in its present form has no application to them.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nThe reasons of Dickson C.J. and Lamer and Wilson JJ. were delivered by", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-11", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 11", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "1. Wilson J.‑‑The issue raised by these appeals is whether the procedures set out in the Immigration Act, 1976, 1976‑77 (Can.), c. 52 as amended, for the adjudication of the claims of persons claiming refugee status in Canada deny such claimants rights they are entitled to assert under s. 7 of the Canadian Charter of Rights and Freedoms .\n\n2. On February 16, 1984 the Court granted leave to appeal in these seven cases and they were consolidated for hearing on April 30, 1984. Six of the appellants were unrepresented by counsel when they made their applications for leave to appeal and counsel was appointed to represent them at the hearing of the appeal. The seventh appellant, Mr. Satnam Singh, was represented by his own counsel both at the hearing of the leave application and at the hearing of the appeal. The Court also had the benefit of a joint submission by counsel for two interveners, the Federation of Canadian Sikh Societies and the Canadian Council of Churches. During the hearing on April 30 and May 1, 1984 submissions by counsel were confined to the application of the Canadian Charter of Rights and Freedoms . On December 7, 1984 counsel were invited to make written submissions to the Court on the application of the Canadian Bill of Rights.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-12", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 12", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "3. At the hearing of the appeals in April and May 1984 counsel took somewhat different approaches to the presentation of the issues but I think it is fair to say that in substance the appeals were argued on the basis that the Court should approach the appeals in three stages. First, the Court should decide whether refugee claimants physically present in Canada are entitled to the protection of s. 7 of the Charter . If the answer to this question is yes, then the Court should consider whether the relevant provisions of the Immigration Act, 1976, in particular s. 71(1), deny the appellants' rights under s. 7 of the Charter . Finally, if the Court answers the second question in the affirmative, it should determine whether any limitation on the appellants' rights imposed by the Act is justified within the meaning of s. 1 of the Charter .\n\n4. In the written submissions presented in December 1984 counsel considered whether the procedures for the adjudication of refugee status claims violated the Canadian Bill of Rights, in particular s. 2(e). There can be no doubt that this statute continues in full force and effect and that the rights conferred in it are expressly preserved by s. 26 of the Charter . However, since I believe that the present situation falls within the constitutional protection afforded by the Canadian Charter of Rights and Freedoms , I prefer to base my decision upon the Charter .\n\n5. I think the suggestion of counsel that the appeals should be approached in three stages is a good one and I am adopting it in the analysis which follows. First, however, it is important to present the facts and the legislative context within which the appeals have arisen.\n\n1. The facts", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-13", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 13", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "6. The facts and procedural history of the seven appeals have a great deal in common and it was because of these similarities that the Court felt it appropriate to consolidate the hearing. Each appellant, in accordance with the procedures set out in the Immigration Act, 1976, asserted a claim to Convention refugee status as defined in s. 2(1) of the Act. The Minister of Employment and Immigration, acting on the advice of the Refugee Status Advisory Committee, made determinations pursuant to s. 45 of the Act that none of the appellants was a Convention refugee. Each of the appellants then made an application for redetermination of his or her refugee claim by the Immigration Appeal Board pursuant to s. 70 of the Act. In accordance with s. 71(1) of the Act the Immigration Appeal Board in each case refused to allow the application to proceed on the basis that it did not believe that there were \"reasonable grounds to believe that a claim could, upon the hearing of the application, be established...\". Each applicant then sought judicial review of the Board's decision pursuant to the provisions of s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. These applications were denied by the Federal Court of Appeal.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-14", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 14", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "7. So much for the similarities. There are a number of distinctions, both substantive and procedural, which can be drawn among the cases of the seven appellants. Six of the appellants are citizens of India who claim Convention refugee status on the basis of their fear of persecution by Indian authorities as a result of their political activities and beliefs, in particular their association with the Akali Dal party in that country. The seventh appellant, Ms. Indrani, is a citizen of Guyana who is of Indian extraction. Her claim to Convention refugee status is based on her fear of persecution on racial, religious and political grounds. Each appellant, in the course of his or her examination under oath pursuant to s. 45 of the Act, set out different facts in support of their refugee status claims. It is common ground that the Court is not concerned on these appeals with the merits of the individual claims made by the appellants.\n\n8. The procedure whereby each appellant came to assert his or her refugee status claim also varies from case to case. Four of the appellants (Mr. Harbhajan Singh, Mr. Sadhu Singh Thandi, Mr. Charanjit Singh Gill and Mr. Satnam Singh) were refused admission into Canada at a port of entry. Inquiries were held pursuant to s. 23 of the Act to determine whether removal orders should be made against them and it was in the course of these inquiries that the appellants raised their claim to refugee status. In accordance with the procedures under s. 45, the s. 23 inquiries were continued until it was determined that removal orders should be made against the appellants. At that point the inquiries under s. 23 were adjourned and each appellant was examined under oath respecting his claim by a senior immigration officer pursuant to s. 45(1).", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-15", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 15", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "9. The other three appellants asserted their refugee claims in the course of inquiries conducted pursuant to s. 27(4) of the Act to determine whether they should be removed after having been admitted to Canada. One of the appellants, Mr. Paramjit Singh Mann, succeeded in eluding inquiry within the meaning of s. 27(2)(f) when he first came to Canada in July 1977. This came to the attention of immigration officials when he surrendered himself in November 1980 with the result that a s. 27 inquiry was held. Ms. Indrani came to Canada in October 1979 using a false passport and was granted visitor status until November 30, 1979. It eventually came to the attention of immigration officials that she was working illegally and in March 1981 she was arrested. On the basis of ss. 27(2)(b) and 27(2)(g) an inquiry was held during the course of which she asserted her refugee status claim. Finally, Mr. Kewal Singh came to Canada in November 1980 and was granted temporary status as a visitor. When his visitor status expired he surrendered himself to immigration authorities and, because he had ceased to be a visitor, an inquiry was held on the basis of s. 27(2)(e).", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-16", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 16", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "10. Inquiries under s. 27 differ from those under s. 23 principally in their effect; in the former case the outcome is liable to be the issuance of a deportation order or a departure notice pursuant to s. 32(6) whereas the latter is liable to lead to a removal order pursuant to s. 32(5), the nature of the order being of significance in its effect on the person's right to return to Canada at some point in the future. The procedures for the determination of refugee status found in ss. 45 to 48 of the Act and the procedures for redetermination by the Immigration Appeal Board found in ss. 70 and 71 do not draw a significant distinction between inquiries held pursuant to s. 23 and those held pursuant to s. 27.\n\n11. Counsel have presented these appeals on the basis that in terms of the application of the Charter the factual and procedural differences just adverted to have no significance. While I believe this to be the case I am also of the view that it is useful to bear the existence of such differences in mind, particularly as the scheme of the Immigration Act, 1976 itself is being explored.\n\n2. The Scheme of the Immigration Act, 1976", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-17", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 17", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "12. The appellants allege that the procedural mechanisms set out in the Immigration Act, 1976, as opposed to the application of those procedures to their particular cases, have deprived them of their rights under the Charter . It is important, therefore, to understand these provisions in the context of the Act as a whole. If, as a matter of statutory interpretation, the procedural fairness sought by the appellants is not excluded by the scheme of the Act, there is, of course, no basis for resort to the Charter . The issue may be resolved on other grounds. In City of Toronto v. Outdoor Neon Displays Ltd., [1960] S.C.R. 307, at p. 314, this Court refused counsel's invitation to express an opinion as to the constitutional validity of a statute in a situation in which it was not necessary to the Court's decision to do so. I note as well that the United States Supreme Court has on many occasions articulated a policy of not deciding constitutional issues in a context where it was not strictly necessary to do so: see Rescue Army v. Municipal Court, 331 U.S. 549 (1947) at pp. 568‑75, and cases cited therein. Accordingly, I believe that the Court should scrutinize closely:\n\n(a) the rights which Convention refugees are accorded under the Act; and\n\n(b) the procedures the Act sets out for adjudicating claims for refugee status\n\nbefore turning to the application of the Charter in this context.\n\n(a) The Rights of Convention Refugees under the Immigration Act, 1976", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-18", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 18", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "13. The appellants make no attempt to assert a constitutional right to enter and remain in Canada analogous to the right accorded to Canadian citizens by s. 6(1) of the Charter . Equally, at common law an alien has no right to enter or remain in Canada except by leave of the Crown: Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376. As Martland J. expressed the law in Prata at p. 380 \"The right of aliens to enter and remain in Canada is governed by the Immigration Act\" and s. 5(1) states that \"No person, other than a person described in section 4 , has a right to come into or remain in Canada\".", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-19", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 19", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "14. However, the Immigration Act, 1976 does provide Convention refugees with certain limited rights to enter and remain in Canada. The Act envisages the assertion of a refugee claim under s. 45 in the context of an inquiry, which presupposes that the refugee claimant is physically present in Canada and within the jurisdiction of the Canadian authorities. The Act and Regulations do envisage the resettlement in Canada of refugees who are outside the country but the following observations are not made with reference to these individuals. When a person who is in Canada has been determined to be a Convention refugee, s. 47(1) requires the adjudicator to reconvene the inquiry held pursuant to s. 23 or s. 27 in order to determine whether the individual is a person described in s. 4(2) of the Act. Section 4(2) provides that a Convention refugee \"while lawfully in Canada [has] a right to remain in Canada...\" except where it is established that he or she falls into the category of criminal or subversive persons set out in s. 4(2)(b). If it is determined that the person is a Convention refugee described in s. 4(2), s. 47(3) requires the adjudicator to allow the person to remain in Canada notwithstanding any other provisions of the Act or Regulations.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-20", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 20", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "15. The scope of the refugee's right to remain in Canada is made problematic by the existence in s. 4(2) of the phrase \"while lawfully in Canada\". Since it is a prerequisite to the holding of an examination under s. 45 that a refugee claimant be a person against whom a removal order or departure notice may be made (see Singh v. Minister of Employment and Immigration, [1982] 2 F.C. 689), it is apparent that nobody who is determined to be a Convention refugee will, in one sense, be lawfully in Canada. In practice this circularity is avoided by the issuance of a Minister's permit pursuant to s. 37 at the time a person is determined to be a Convention refugee, thus regularizing the individual's status for purposes of s. 4(2). The case of Boun‑Leua v. Minister of Employment and Immigration, [1981] 1 F.C. 259, is illustrative of the difficulties which can arise where a Minister's permit is not issued.\n\n16. In Boun‑Leua the applicant was a stateless person who was born in Laos but had been granted refugee status in France and had taken up residence there. He came to Canada as a visitor in December 1978 and, when his visitor status expired in January 1979, he surrendered himself to immigration officials and made a refugee claim. In due course it was determined that he was a Convention refugee but he was not issued a Minister's permit. At the resumption of the inquiry held pursuant to s. 47(1) the adjudicator determined that he was not a Convention refugee \"lawfully in Canada\" and she issued him a departure notice. The applicant sought judicial review of this decision pursuant to s. 28 of the Federal Court Act. Urie J., writing for the Federal Court of Appeal, dismissed the application. At pages 263‑64 he made the following observations:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-21", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 21", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "A Convention refugee, on the other hand, is not given the right to reside permanently in Canada nor, by being designated such, is he given the right to remain in Canada for a specific period of time. Presumably his right to remain is dependent upon his continuing to be a refugee from the country of his nationality. If for any reason, he no longer can fulfil the requirements to be characterized as a Convention refugee, he is subject to a removal or deportation order. The duration of his stay, as a Convention refugee, can only be fixed by a Ministerial permit issued pursuant to section 37 of the Act. If no such permit issued then, if he is within an inadmis‑ sible class, he may be the subject of a removal or deportation order. The only rights accorded to a Convention refugee are first, not to be returned to a country where his life or freedom would be threatened, a right granted by virtue of section 55 of the Act, and, second, to be able to appeal a removal order or a deportation order made against him on a question of law or fact or of mixed law and fact and \"on the ground that, having regard to the existence of compassionate or humanitarian considerations\" he should not be removed from Canada (sections 72(2)(a) and (b) and 72(3)).", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-22", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 22", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "From all of the above, I can only conclude that the determination by the Minister that a person is a Convention refugee does not, as urged by applicant's counsel, confer on that person a status of some undefined nature. It gives him only the rights to which I have previously alluded. In this case the applicant as a refugee admitted to France can return to France at least so long as his travel permit, issued by that country to him, is valid. France having found him to be a refugee, then Canada as a signatory to the United Nations Convention Relating to the Status of Refugees would find it difficult to determine that he was not a refugee. Whether or not such is the case is immaterial in this case. Since he can return to France, which is not the country of his nationality, or where his life or freedom would be threatened, there is no obligation on the Minister to permit him to remain in Canada. The applicant has no legal right to do so. In my view, therefore, applicant counsel's submission that the determination by the Minister that his client was a Convention refugee gave him the right to remain in Canada must fail.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-23", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 23", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "17. Although I agree with Urie J.'s decision on the facts before him, I believe that his reasons may have placed the position of the Convention refugee under the Act too low. In addition to the important rights set out in ss. 55 and 72, it seems to me that a Convention refugee is entitled to require the Minister to exercise his discretion to give a permit under s. 37 fairly and in accordance with proper principles and, if the Minister fails to do so, the Convention refugee may have a right to take proceedings under s. 18(a) of the Federal Court Act: see Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470 at p. 479 (per Spence J.); Brempong v. Minister of Employment and Immigration, [1981] 1 F.C. 211.\n\n18. In the Boun‑Leua case, as Urie J. pointed out, the applicant was able to return to France where his life or liberty would not be threatened and it would not be inconsistent with Canada's obligations to refugees to require him to return there. On the other hand, s. 2(2) and s. 3(g) of the Immigration Act, 1976 envisage that the Act will be administered in a way that fulfils Canada's international legal obligations. These provisions read as follows:\n\n2. ...\n\n(2) The term \"Convention\" in the expression \"Convention refugee\" refers to the United Nations Convention Relating to the Status of Refugees signed at Geneva on the 28th day of July, 1951 and includes the Protocol thereto signed at New York on the 31st day of January, 1967.\n\n3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need\n\n...", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-24", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 24", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "(g) to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;\n\n19. The Preamble to the Convention and Protocol provides:\n\nConsidering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on December 10 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.\n\nConsidering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms,\n\n...\n\nThe term \"refugee\" is defined in the Convention as follows:\n\nA. For the purposes of the present Convention, the term `refugee' shall apply to any person who:\n\n...owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.\n\n...\n\n(United Nations Convention Relating to the Status of Refugees. HCR/INF/29/Rev. 2, Chap. 1, Article 1, paragraph A(2).)", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-25", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 25", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "20. I believe therefore that a Convention refugee who does not have a safe haven elsewhere is entitled to rely on this country's willingness to live up to the obligations it has undertaken as a signatory to the United Nations Convention Relating to the Status of Refugees: (see Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639 at pp. 657‑62 (per Pigeon J. dissenting); Hurt v. Minister of Manpower and Immigration, [1978] 2 F.C. 340).\n\n(b) The Procedures for the Determination of Convention Refugee Status\n\n21. The term \"Convention refugee\" is defined in s. 2(1) of the Act as follows:\n\n\"Convention refugee\" means any person who, by reason of a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,\n\n(a) is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or\n\n(b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country;\n\n22. As noted above, the procedures for determination of whether an individual is a Convention refugee and for redetermination of claims by the Immigration Appeal Board are set out in ss. 45 to 48 and 70 to 71 respectively. Focussing first on the initial determination, s. 45 provides as follows:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-26", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 26", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "45. (1) Where, at any time during an inquiry, the person who is the subject of the inquiry claims that he is a Convention refugee, the inquiry shall be continued and, if it is determined that, but for the person's claim that he is a Convention refugee, a removal order or a departure notice would be made or issued with respect to that person, the inquiry shall be adjourned and that person shall be examined under oath by a senior immigration officer respecting his claim.\n\n(2) When a person who claims that he is a Convention refugee is examined under oath pursuant to subsection (1), his claim, together with a transcript of the examination with respect thereto, shall be referred to the Minister for determination.\n\n(3) A copy of the transcript of an examination under oath referred to in subsection (1) shall be forwarded to the person who claims that he is a Convention refugee.\n\n(4) Where a person's claim is referred to the Minister pursuant to subsection (2), the Minister shall refer the claim and the transcript of the examination under oath with respect thereto to the Refugee Status Advisory Committee established pursuant to section 48 for consideration and, after having obtained the advice of that Committee, shall determine whether or not the person is a Convention refugee.\n\n(5) When the Minister makes a determination with respect to a person's claim that he is a Convention refugee, the Minister shall thereupon in writing inform the senior immigration officer who conducted the examination under oath respecting the claim and the person who claimed to be a Convention refugee of his determination.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-27", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 27", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "(6) Every person with respect to whom an examination under oath is to be held pursuant to subsection (1) shall be informed that he has the right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at his examination and shall be given a reasonable opportunity, if he so desires and at his own expense, to obtain such counsel.\n\nIt is difficult to characterize this procedure as a \"hearing\" in the traditional sense: see Brempong, supra, at pp. 217‑18. As Urie J. noted in Brempong at p. 217, n. 7, the procedure is technically \"non‑adversarial\" since only the claimant is entitled to be represented by counsel. Urie J. described the procedure as \"purely administrative in nature\" and this characterization was adopted by counsel for the respondent Minister in the course of argument on these appeals.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-28", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 28", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "23. In Mensah v. Minister of Employment and Immigration, [1982] 1 F.C. 70, Pratte J. observed at p. 71 that by enacting s. 45 \"Parliament did not intend to subject either the Minister or the Refugee Status Advisory Committee to the procedural duty of fairness invoked by the applicant\". If Pratte J. intended by this statement to suggest that Parliament has excluded the duty of fairness articulated in this Court's decision in Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, I believe that he must have been mistaken. In Nicholson at p. 324, Laskin C.J. expressly adopted the statement of Megarry J. in Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373 (U.K.), at p. 1378 \"that in the sphere of the so‑called quasi‑judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness\". In other words, the mere classification of the Minister's duty under s. 45 as administrative does not eliminate the duty of fairness set out in Nicholson: see Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at p. 750 (per Estey J.); Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602 at pp. 623‑24, 628‑31 (per Dickson J., as he then was).", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-29", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 29", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "24. The existence of a duty of fairness does not, however, define its content. I believe, therefore, that Pratte J.'s observation in Mensah was intended to make the point that the duty of fairness imposed on the Minister in the context of s. 45 did not require the Minister to allow a refugee claimant to respond to the Minister's objections to his claim as counsel in that case had submitted. In his concurring reasons in Martineau, supra, Dickson J. (as he then was) observed at p. 630 that \"The content of the principles of natural justice and fairness in application to the individual cases will vary according to the circumstances of each case . . .\". As Estey J. pointed out in the Inuit Tapirisat case at p. 755: \"It is always a question of construing the statutory scheme as a whole in order to see to what degree, if any, the legislator intended the principle [of procedural fairness] to apply\".", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-30", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 30", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "25. Counsel for the respondent in this case submitted that the Act did not contemplate an oral hearing before the Minister or the Refugee Status Advisory Committee and that the Minister and the Committee were entitled to rely upon what he described as \"the government's knowledge of world affairs\" in rendering a decision. As I read s. 45, and in particular s. 45(4), these submissions appear to be correct. It is clear from s. 45(4) that the Act does not envisage an opportunity for the refugee claimant to be heard other than through his claim and the transcript of his examination under oath. Nor does the Act appear to envisage the refugee claimant's being given an opportunity to comment on the advice the Refugee Status Advisory Committee has given to the Minister. The insulation of the process is reinforced by the fact that the Minister is entitled under s. 123 of the Act to delegate his powers under s. 45 and in fact these powers are customarily delegated to the Registrar of the Refugee Status Advisory Committee: see Wieckowska v. Lanthier, [1980] 1 F.C. 655 at p. 656. In substance, therefore, it would appear that the Refugee Status Advisory Committee acts as a decision‑making body isolated from the persons whose status it is adjudicating and that it applies policies and makes use of information to which the refugee claimants themselves have no access. The Committee and the Minister have an obligation to act fairly in carrying out their duties in the sense that decisions cannot be made arbitrarily and they must make an effort to treat equivalent cases in equivalent fashion.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-31", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 31", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "I do not think, however, that the courts can import into the duty of fairness procedural constraints on the Committee's operation which are incompatible with the decision‑making scheme set up by Parliament.\n\n26. In any event, the Minister's exercise of his jurisdiction under s. 45 is not reviewable on these appeals. As Urie J. noted in the Brempong case, supra, judicial review under s. 28 of the Federal Court Act is unavailable with respect to \"a decision or order of an administrative nature not required by law to be made on a judicial or quasi‑judicial basis . . .\".Thus, despite Nicholson's tendency to eliminate the significance of the distinction between administrative and judicial or quasi‑judicial functions for purposes of determining whether procedural fairness in decision‑making is required, the Federal Court Act preserves the significance of the distinction for purposes of determining whether judicial review is available by means of certiorari under s. 18(a) or by way of review under s. 28: see Martineau, supra, at pp. 629 and 637. Since the appellants did not challenge the procedural fairness of the Minister's decision under s. 45 of the Immigration Act, 1976 by the proper procedures, I do not believe that the Court has any jurisdiction on these appeals to review those decisions or the mechanisms by which they were taken except for purposes of developing a greater understanding of the procedural scheme of the Act with respect to refugee claims.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-32", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 32", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "27. The refugee claimant's status, however, need not be conclusively determined by the Minister's decision on the advice of the Refugee Status Advisory Committee made pursuant to s. 45. Under s. 70(1) of the Act a person whose refugee claim has been refused by the Minister may, within a period prescribed in Regulation 40(1) as fifteen days from the time he is so informed, apply for a redetermination of his claim by the Immigration Appeal Board. Section 70(2) requires the refugee claimant to submit with such an application a copy of the transcript of the examination under oath which was conducted pursuant to s. 45(1) and a declaration under oath setting out the basis of the application, the facts upon which the appellant relies and the information and evidence the applicant intends to offer at a redetermination hearing. The applicant is also permitted pursuant to s. 70(2)(d) to set out in his declaration such other representations as he deems relevant to his application.\n\n28. The Immigration Appeal Board's duties in considering an application for redetermination of a refugee status claim are set out in s. 71 which reads as follows:\n\n71. (1) Where the Board receives an application referred to in subsection 70(2), it shall forthwith consider the application and if, on the basis of such consideration, it is of the opinion that there are reasonable grounds to believe that a claim could, upon the hearing of the application, be established, it shall allow the application to proceed, and in any other case it shall refuse to allow the application to proceed and shall thereupon determine that the person is not a Convention refugee.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-33", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 33", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "(2) Where pursuant to subsection (1) the Board allows an application to proceed, it shall notify the Minister of the time and place where the application is to be heard and afford the Minister a reasonable opportunity to be heard.\n\n(3) Where the Board has made its determination as to whether or not a person is a Convention refugee, it shall, in writing, inform the Minister and the applicant of its decision.\n\n(4) The Board may, and at the request of the applicant or the Minister shall, give reasons for its determination.\n\n29. If the Board were to determine pursuant to s. 71(1) that the application should be allowed to proceed, the parties are all agreed that the hearing which would take place pursuant to s. 71(2) would be a quasi‑judicial one to which full natural justice would apply. The Board is not, however, empowered by the terms of the statute to allow a redetermination hearing to proceed in every case. It may only do so if \"it is of the opinion that there are reasonable grounds to believe that a claim could, upon the hearing of the application, be established ...\". In Kwiatkowsky v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856, this Court interpreted those words as requiring the Board to allow the claim to proceed only if it is of the view that \"it is more likely than not\" that the applicant will be able to establish his claim at the hearing, following the test laid down by Urie J. in Lugano v. Minister of Manpower and Immigration, [1976] 2 F.C. 438.\n\n30. In his concurring reasons for the Federal Court of Appeal's decision in Kwiatkowsky (1980), 34 N.R. 237, Le Dain J. made the following observation about the Immigration Appeal Board's authority under s. 71(1) at p. 240:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-34", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 34", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "This is a somewhat unusual authority to determine at a preliminary stage, not whether there is an arguable case, but whether there is a probability or likelihood of success, without knowing what a full hearing might add to the strength of the case. It is an authority that gives rise to the understandable concern, but it is one that Parliament appears clearly to have conferred upon the board for reasons which it has judged sound. In effect, it is an authority to determine the issue of refugee status upon a consideration of the examination under oath and the declaration under oath.\n\n(Emphasis added.)\n\n31. I agree with these remarks. The issue directly before this Court in Kwiatkowsky was not whether there had been a denial of natural justice but whether the Immigration Appeal Board had applied the wrong test in exercising its power under s. 71(1). It is implicit in the Court's decision, however, that the Act imposes limitations on the scope of the hearing afforded to refugee claimants which it is difficult to reconcile with the principles of natural justice: see Ernewein v. Minister of Employment and Immigration, supra, at pp. 659‑60 (per Pigeon J. dissenting).\n\n32. In Alliance des Professeurs Catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140, Rinfret C.J. expressed this Court's commitment to the interpretation of statutes in accordance with the principles of natural justice in the following terms at p. 154:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-35", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 35", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "[TRANSLATION] The rule that no one should be convicted or deprived of his rights without a hearing, and especially without even being informed that his rights would be in question, is a universal rule of equity, and the silence of a statute should not be relied on as a basis for ignoring it. In my opinion, there would have to be nothing less than an express statement by the legislator for this rule to be superseded: it applies to all courts and to all bodies required to make a decision that might have the effect of destroying a right enjoyed by an individual.\n\n(Emphasis added.)\n\nIn the same case, at p. 166, Fauteux J. (as he then was) stated:\n\n[TRANSLATION] It is well established that application of the audi alteram partem rule implicitly underlies legislation giving administrative bodies functions of a judicial nature: see Maxwell, On Interpretation of Statutes, 9th ed., 368. The legislator is presumed to take this rule into consideration in enacting such statutes. For its application to be suspended, the statute must contain an express provision to this effect or an inference with equivalent effect.\n\n(Emphasis added.)\n\nIn a number of subsequent cases including Nicholson, supra, this Court has come to the same conclusion: see Pue, Natural Justice in Canada (1981), at pp. 82‑84. In the present instance, however, it seems to me that s. 71(1) is precisely the type of express provision which prevents the courts from reading the principles of natural justice into a statutory scheme for the adjudication of the rights of individuals.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-36", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 36", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "33. The substance of the appellants' case, as I understand it, is that they did not have a fair opportunity to present their refugee status claims or to know the case they had to meet. I do not think there is any basis for suggesting that the procedures set out in the Immigration Act, 1976 were not followed correctly in the adjudication of these individuals' claims. Nor do I believe that there is any basis for interpreting the relevant provisions of the Immigration Act, 1976 in a way that provides a significantly greater degree of procedural fairness or natural justice than I have set out in the preceding discussion. The Act by its terms seems to preclude this. Accordingly, if the appellants are to succeed, I believe that it must be on the basis that the Charter requires the Court to override Parliament's decision to exclude the kind of procedural fairness sought by the appellants.\n\n3. The Application of the Charter\n\n(a) Are the Appellants Entitled to the Protection of s. 7 of the Charter ?\n\n34. Section 32(1)( a ) of the Charter provides:\n\n32. (1) This Charter applies\n\n(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament...\n\nSince immigration is clearly a matter falling within the authority of Parliament under s. 91(25) of the Constitution Act, 1867 , the Immigration Act, 1976 itself and the administration of it by the Canadian government are subject to the provisions of the Charter .", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-37", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 37", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "35. Section 7 of the Charter states that \"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice\". Counsel for the appellants contrasts the use of the word \"Everyone\" in s. 7 with language used in other sections, for example, \"Every citizen of Canada\" in s. 3 , \"Every citizen of Canada and every person who has the status of a permanent resident of Canada\" in s. 6(2) and \"Citizens of Canada\" in s. 23 . He concludes that \"Everyone\" in s. 7 is intended to encompass a broader class of persons than citizens and permanent residents. Counsel for the Minister concedes that \"everyone\" is sufficiently broad to include the appellants in its compass and I am prepared to accept that the term includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.\n\n36. That premise being accepted, the question then becomes whether the rights the appellants seek to assert fall within the scope of s. 7. Counsel for the Minister does not concede this. He submits that the exclusion or removal of the appellants from Canada would not infringe \"the right to life, liberty and security of the person\". He advances three main lines of argument in support of this submission.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-38", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 38", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "37. The first may be described as a reliance on the \"single right\" theory articulated by Marceau J. in The Queen v. Operation Dismantle Inc., [1983] 1 F.C. 745 at pp. 773‑74. In counsel's submission, the words \"the right to life, liberty and security of the person\" form a single right with closely inter‑related parts and this right relates to matters of death, arrest, detention, physical liberty and physical punishment of the person. Moreover, counsel says, s. 7 only protects persons against the deprivation of that type of right if the deprivation results from a violation of the principles of fundamental justice. This argument by itself does not advance the Minister's case very far since the appellants submit that, even on this restrictive interpretation of s. 7, their rights in relation to matters of death, arrest, detention, physical liberty and physical punishment are indeed affected. Counsel for the appellants took two different approaches in their attempt to demonstrate this.\n\n38. Mr. Coveney, for the appellant Satnam Singh, and Ms. Jackman for the interveners who supported the position of the appellants, took the position that it was inherent in the definition of a Convention refugee that rejection of his right to stay in Canada would affect his right to life, liberty and security of the person in the sense articulated by counsel for the Minister. In other words, because a Convention refugee is, by definition, a person who has a \"well‑founded fear of persecution\", the refusal to give him refuge exposes him to jeopardy of death, significant diminution of his physical liberty or physical punishment in his country of origin.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-39", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 39", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "39. Mr. Scott, for the other six appellants, took a different approach. He noted that the Act empowers immigration officials physically to detain the appellants both for purposes of examination pursuant to s. 23 or s. 27 and for purposes of removal: see ss. 20(1), 23(3), 23(5), and 104 to 108. He argued that the detention of the appellants by Canadian immigration officials would itself deprive them of personal liberty in this country and it would be a violation of s. 7 to deprive them of this liberty except in accordance with the principles of fundamental justice.\n\n40. Counsel for the Minister, Mr. Bowie, sought to counter both these arguments. With respect to the first argument, he took the position that s. 7 of the Charter affords individuals protection from the action of the legislatures and governments in Canada and its provinces and territories but that it affords no protection against the acts of other persons or foreign governments. He relied on the decision of Pratte J. in Singh v. Minister of Employment and Immigration, [1983] 2 F.C. 347, who said at p. 349:\n\nThe decision of the [Immigration Appeal] Board did not have the effect of depriving the applicant of his right to life, liberty and security of the person. If the applicant is deprived of any of those rights after his return to his own country, that will be as a result of the acts of the authorities or of other persons of that country, not as a direct result of the decision of the Board. In our view, the deprivation of rights referred to in section 7 refers to a deprivation of rights by Canadian authorities applying Canadian laws.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-40", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 40", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "With respect to the second line of argument, Mr. Bowie noted that the procedures for detention and removal of individuals under the Act were no different for those claiming refugee status than they were for any other individuals and he argued that those provisions were consistent with the principles of fundamental justice.\n\n41. It seems to me that in attempting to decide whether the appellants have been deprived of the right to life, liberty and security of the person within the meaning of s. 7 of the Charter , we must begin by determining what rights the appellants have under the Immigration Act, 1976. As noted earlier, s. 5(1) of the Act excludes from persons other than those described in s. 4 the right to come into or remain in Canada. The appellants therefore do not have such a right. However, the Act does accord a Convention refugee certain rights which it does not provide to others, namely the right to a determination from the Minister based on proper principles as to whether a permit should issue entitling him to enter and remain in Canada (ss. 4(2) and 37); the right not to be returned to a country where his life or freedom would be threatened (s. 55 ); and the right to appeal a removal order or a deportation order made against him (ss. 72(2)(a), 72(2)(b) and 72(3)).", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-41", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 41", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "42. We must therefore ask ourselves whether the deprivation of these rights constitutes a deprivation of the right to life, liberty and security of the person within the meaning of s. 7 of the Charter . Even if we accept the \"single right\" theory advanced by counsel for the Minister in interpreting s. 7, I think we must recognize that the \"right\" which is articulated in s. 7 has three elements: life, liberty and security of the person. As I understand the \"single right\" theory, it is not suggested that there must be a deprivation of all three of these elements before an individual is deprived of his \"right\" under s. 7. In other words, I believe that it is consistent with the \"single right\" theory advanced by counsel to suggest that a deprivation of the appellants' \"security of the person\", for example, would constitute a deprivation of their \"right\" under s. 7, whether or not it can also be said that they have been deprived of their lives or liberty. Rather, as I understand it, the \"single right\" theory is advanced in support of a narrow construction of the words \"life\", \"liberty\" and \"security of the person\" as different aspects of a single concept rather than as separate concepts each of which must be construed independently.\n\n43. Certainly, it is true that the concepts of the right to life, the right to liberty, and the right to security of the person are capable of a broad range of meaning. The Fourteenth Amendment to the United States Constitution provides in part \". . . nor shall any State deprive any person of life, liberty, or property, without the due process of law . . . \". In Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) at p. 572, Stewart J. articulated the notion of liberty as embodied in the Fourteenth Amendment in the following way:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-42", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 42", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "\"While this Court has not attempted to define with exactness the liberty . . . guaranteed (by the Fourteenth Amendment), the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.\" Meyer v. Nebraska, 262 U.S. 390, 399. In a Constitution for a free people, there can be no doubt that the meaning of \"liberty\" must be broad indeed. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499‑500; Stanley v. Illinois, 405 U.S. 645.\n\nThe \"single right\" theory advanced by counsel for the Minister would suggest that this conception of \"liberty\" is too broad to be employed in our interpretation of s. 7 of the Charter . Even if this submission is sound, however, it seems to me that it is incumbent upon the Court to give meaning to each of the elements, life, liberty and security of the person, which make up the \"right\" contained in s. 7.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-43", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 43", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "44. To return to the facts before the Court, it will be recalled that a Convention refugee is by definition a person who has a well‑founded fear of persecution in the country from which he is fleeing. In my view, to deprive him of the avenues open to him under the Act to escape from that fear of persecution must, at the least, impair his right to life, liberty and security of the person in the narrow sense advanced by counsel for the Minister. The question, however, is whether such an impairment constitutes a \"deprivation\" under s. 7.\n\n45. It must be acknowledged, for example, that even if a Convention refugee's fear of persecution is a well‑founded one, it does not automatically follow that he will be deprived of his life or his liberty if he is returned to his homeland. Can it be said that Canadian officials have deprived a Convention refugee of his right to life, liberty and security of the person if he is wrongfully returned to a country where death, imprisonment or another form of persecution may await him? There may be some merit in counsel's submission that closing off the avenues of escape provided by the Act does not per se deprive a Convention refugee of the right to life or to liberty. It may result in his being deprived of life or liberty by others, but it is not certain that this will happen.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-44", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 44", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "46. I cannot, however, accept the submission of counsel for the Minister that the denial of the rights possessed by a Convention refugee under the Act does not constitute a deprivation of his security of the person. Like \"liberty\", the phrase \"security of the person\" is capable of a broad range of meaning. The phrase \"security of the person\" is found in s. 1(a) of the Canadian Bill of Rights and its interpretation in that context might have assisted us in its proper interpretation under the Charter . Unfortunately no clear meaning of the words emerges from the case law, although the phrase has received some mention in cases such as Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at pp. 628‑34 (per Laskin C.J. dissenting); Curr v. The Queen, [1972] S.C.R. 889; and R. v. Berrie (1975), 24 C.C.C. (2d) 66, at p. 70. The Law Reform Commission, in its Working Paper No. 26, Medical Treatment and Criminal Law (1980), suggested at p. 6 that:\n\nThe right to security of the person means not only protection of one's physical integrity, but the provision of necessaries for its support.\n\nThe Commission went on to describe the provision of necessaries in terms of art. 25, para. 1 of the Universal Declaration of Human Rights (1948) which reads:\n\nEvery one has the right to a standard of living adequate for the health and well‑being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-45", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 45", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "Commentators have advocated the adoption of a similarly broad conception of \"security of the person\" in the interpretation of s. 7 of the Charter : see Garant, \"Fundamental Freedoms and Natural Justice\", in Tarnopolsky and Beaudoin (eds.) The Canadian Charter of Rights and Freedoms (1982), at pp. 264‑65, 271‑74; Manning, Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982 (1983), at pp. 249‑54.\n\n47. For purposes of the present appeal it is not necessary, in my opinion, to consider whether such an expansive approach to \"security of the person\" in s. 7 of the Charter should be taken. It seems to me that even if one adopts the narrow approach advocated by counsel for the Minister, \"security of the person\" must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself. I note particularly that a Convention refugee has the right under s. 55 of the Act no to \"...be removed from Canada to a country where his life or freedom would be threatened...\". In my view, the denial of such a right must amount to a deprivation of security of the person within the meaning of s. 7.\n\n48. This approach receives support from at least one lower court decision applying s. 7 of the Charter . In Collin v. Lussier, [1983] 1 F.C. 218 (later dismissed on appeal [1985] 1 F.C. 124), the applicant before the Trial Division of the Federal Court applied for certiorari to quash a decision made by the respondent to have him transferred from a medium security to a maximum security prison. He argued that the transfer endangered his \"security of the person\" and since it was not made in accordance with the principles of fundamental justice, his rights under s. 7 had been infringed. At page 239, Décary J. stated:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-46", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 46", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": ". . . such detention, by increasing the applicant's anxiety as to his state of health, is likely to make his illness worse and, by depriving him of access to adequate medical care, it is in fact an impairment of the security of his person.\n\nIt is noteworthy that the applicant had not demonstrated that his health had been impaired; he merely showed that it was likely that his health would be impaired. This was held to be sufficient to constitute a deprivation of the right to security of the person under the circumstances.\n\n49. It must be recognized that the appellants are not at this stage entitled to assert rights as Convention refugees; their claim is that they are entitled to fundamental justice in the determination of whether they are Convention refugees or not. From some of the cases dealing with the application of the Canadian Bill of Rights to the determination of the rights of individuals under immigration legislation it might be suggested that whatever procedures the legislation itself sets out for the determination of rights constitute \"due process\" for purposes of s. 1(a) and \"fundamental justice\" for purposes of s. 2(e) of the Canadian Bill of Rights: see Prata v. Minister of Manpower and Immigration, supra, at p. 383; Rebrin v. Bird and Minister of Citizenship and Immigration, [1961] S.C.R. 376, at pp. 381‑83; Louie Yuet Sun v. The Queen, [1961] S.C.R. 70; Cf. U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), at p. 544. As Professor Tarnopolsky (as he then was) observed in his text The Canadian Bill of Rights (2nd ed. 1975) at p. 273:\n\nThe courts have consistently held that immigration is a privilege, and not a right.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-47", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 47", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "50. The creation of a dichotomy between privileges and rights played a significant role in narrowing the scope of the application of the Canadian Bill of Rights, as is apparent from the judgment of Martland J. in Mitchell v. The Queen, [1976] 2 S.C.R. 570. At page 588 Martland J. said:\n\nThe appellant also relies upon s. 2(e) of the Bill of Rights, which provides that no law of Canada shall be construed or applied so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. In the McCaud case [[1965] 1 C.C.C. 168] Spence J., whose view was adopted unanimously on appeal, held that the provisions of s. 2(e) do not apply to the question of the revocation of parole under the provisions of the Parole Act.\n\nThe appellant had no right to parole. He was granted parole as a matter of discretion by the Parole Board. He had no right to remain on parole. His parole was subject to revocation at the absolute discretion of the Board.\n\nI do not think this kind of analysis is acceptable in relation to the Charter . It seems to me rather that the recent adoption of the Charter by Parliament and nine of the ten provinces as part of the Canadian constitutional framework has sent a clear message to the courts that the restrictive attitude which at times characterized their approach to the Canadian Bill of Rights ought to be re‑examined. I am accordingly of the view that the approach taken by Laskin C.J. dissenting in Mitchell is to be preferred to that of the majority as we examine the question whether the Charter has any application to the adjudication of rights granted to an individual by statute.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-48", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 48", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "51. In Mitchell the issue was whether the Canadian Bill of Rights required s. 16(1) of the Parole Act to be interpreted so as to require the Parole Board to provide a parolee with a fair hearing before revoking his parole. Laskin C.J. focussed on the consequences of the revocation of parole for the individual and concluded that parole could not be characterized as a \"mere privilege\" even although the parolee had no absolute right to be released from prison. He said at p. 585:\n\nBetween them, s. 2(c)(i) and s. 2(e) [of the Canadian Bill of Rights] call for at least minimum procedural safeguards in parole administration where revocation is involved, despite what may be said about the confidentiality and sensitiveness of the parole system.\n\n52. It seems to me that the appellants in this case have an even stronger argument to make than the appellant in Mitchell. At most Mr. Mitchell was entitled to a hearing from the Parole Board concerning the revocation of his parole and a decision from the Board based on proper considerations as to whether to continue his parole or not. He had no statutory right to the parole itself; rather he had a right to proper consideration of whether he was entitled to remain on parole. By way of contrast, if the appellants had been found to be Convention refugees as defined in s. 2(1) of the Immigration Act, 1976 they would have been entitled as a matter of law to the incidents of that status provided for in the Act. Given the potential consequences for the appellants of a denial of that status if they are in fact persons with a \"well‑founded fear of persecution\", it seems to me unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-49", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 49", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "53. Given this conclusion, it is perhaps unnecessary to address Mr. Scott's line of argument in detail. I must, however, acknowledge some reluctance to adopt his analogy from American law that persons who are inside the country are entitled to the protection of the Charter while those who are merely seeking entry to the country are not. In the first place, it should be noted that the presence in this country of four of the appellants who were refused entry when they arrived in Canada is due only to the fact that the Act provides for a mechanism for their release from detention. As Ms. Jackman pointed out, a rule which provided Charter protection to refugees who succeeded in entering the country but not to those who were seeking admission at a port of entry would be to reward those who sought to evade the operation of our immigration laws over those who presented their cases openly at the first available opportunity.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-50", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 50", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "54. An equally serious objection, it seems to me, is that the American rule does not differentiate between the special status statutorily accorded to Convention refugees who are present in this country and the status of other individuals who are seeking to enter or remain in Canada. As I understand the American law, the constitutional protection of the Fifth and Fourteenth Amendments has long been available to aliens whom the government is seeking to remove from the United States (The Japanese Immigrant Case, 189 U.S. 86 (1903)) but such protection is not available to those seeking entry which the government has decided to refuse (U.S. ex. rel. Knauff v. Shaughnessy, supra). The rationale of this distinction as articulated in Knauff and more fully in Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953) at p. 210, is that \"Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control\". Seen in this sense, the deference which American courts have shown to the political branches of government in the field of immigration has been described as one aspect of the political questions doctrine: see Scharpf, \"Judicial Review and the Political Question: A Functional Analysis\" (1966), 75 Yale L.J. 517, at pp. 578‑83.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-51", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 51", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "55. Two observations about this approach will suffice for present purposes. The first is that recently the United States Supreme Court has been more reluctant to employ the political questions doctrine to provide the executive and legislative branches of government with an unreviewable authority over the regulation of aliens: see Immigration and Naturalization Service v. Chadha, 77 L Ed 2d 317 (1983), at pp. 338‑40 (per Burger C.J.) Second, and more importantly, it seems to me that in the Canadian context Parliament has in the Immigration Act, 1976 made many of the \"political\" determinations which American courts have been justifiably reluctant to attempt to get involved in themselves. On these appeals this Court is being asked by the appellants to accept that the substantive rights of Convention refugees have been determined by the Immigration Act, 1976 itself and the Court need concern itself only with the question whether the procedural scheme set up by the Act for the determination of that status is consistent with the requirements of fundamental justice articulated in s. 7 of the Charter . I see no reason why the Court should limit itself in this inquiry or establish distinctions between classes of refugee claimants which are not mandated by the Act itself. It is unnecessary for the Court to consider what it would do if it were asked to engage in a larger inquiry into the substantive rights conferred in the Act.\n\n56. In summary, I am of the view that the rights which the appellants are seeking to assert are ones which entitle them to the protection of s. 7 of the Charter . It is necessary therefore to consider whether the procedures for the determination of refugee status as set out in the Act accord with fundamental justice.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-52", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 52", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "(b) Is Fundamental Justice Denied by the Procedures for the Determination of Convention Refugee Status set out in the Act?\n\n57. All counsel were agreed that at a minimum the concept of \"fundamental justice\" as it appears in s. 7 of the Charter includes the notion of procedural fairness articulated by Fauteux C.J. in Duke v. The Queen, [1972] S.C.R. 917. At page 923 he said:\n\nUnder s. 2(e) of the Bill of Rights no law of Canada shall be construed or applied so as to deprive him of \"a fair hearing in accordance with the principles of fundamental justice\". Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-53", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 53", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "58. Do the procedures set out in the Act for the adjudication of refugee status claims meet this test of procedural fairness? Do they provide an adequate opportunity for a refugee claimant to state his case and know the case he has to meet? This seems to be the question we have to answer and, in approaching it, I am prepared to accept Mr. Bowie's submission that procedural fairness may demand different things in different contexts: see Martineau, supra, at p. 630. Thus it is possible that an oral hearing before the decision‑maker is not required in every case in which s. 7 of the Charter is called into play. However, I must confess to some difficulty in reconciling Mr. Bowie's argument that an oral hearing is not required in the context of this case with the interpretation he seeks to put on s. 7. If \"the right to life, liberty and security of the person\" is properly construed as relating only to matters such as death, physical liberty and physical punishment, it would seem on the surface at least that these are matters of such fundamental importance that procedural fairness would invariably require an oral hearing. I am prepared, nevertheless, to accept for present purposes that written submissions may be an adequate substitute for an oral hearing in appropriate circumstances.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-54", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 54", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "59. I should note, however, that even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person: see Stein v. The Ship \"Kathy K\", [1976] 2 S.C.R. 802, at pp. 806‑08 (per Ritchie J.) I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-55", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 55", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "60. As I have suggested, the absence of an oral hearing need not be inconsistent with fundamental justice in every case. My greatest concern about the procedural scheme envisaged by ss. 45 to 48 and 70 and 71 of the Immigration Act, 1976 is not, therefore, with the absence of an oral hearing in and of itself, but with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet. Mr. Bowie argued that since the procedure under s. 45 was an administrative one, it was quite proper for the Minister and the Refugee Status Advisory Committee to take into account policy considerations and information about world affairs to which the refugee claimant had no opportunity to respond. However, in my view the proceedings before the Immigration Appeal Board were quasi‑judicial and the Board was not entitled to rely on material outside the record which the refugee claimant himself submitted on his application for redetermination: see Permaul v. Minister of Employment and Immigration (unreported judgment of the Federal Court of Appeal, No. A‑576‑83, dated November 24, 1983); Saraos v. Minister of Employment and Immigration, [1982] 1 F.C. 304, at pp. 308‑09. Mr. Bowie submitted that there was no case against the refugee claimant at that stage; it was merely his responsibility to make a written submission which demonstrated on the balance of probabilities that he would be able to establish his claim at a hearing. If the applicant failed to bring forward the requisite facts his claim would not be allowed to proceed, but there was nothing fundamentally unfair in this procedure.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-56", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 56", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "61. It seems to me that the basic flaw in Mr. Bowie's characterization of the procedure under ss. 70 and 71 is his description of the procedure as non‑adversarial. It is in fact highly adversarial but the adversary, the Minister, is waiting in the wings. What the Board has before it is a determination by the Minister based in part on information and policies to which the applicant has no means of access that the applicant for redetermination is not a Convention refugee. The applicant is entitled to submit whatever relevant material he wishes to the Board but he still faces the hurdle of having to establish to the Board that on the balance of probabilities the Minister was wrong. Moreover, he must do this without any knowledge of the Minister's case beyond the rudimentary reasons which the Minister has decided to give him in rejecting his claim. It is this aspect of the procedures set out in the Act which I find impossible to reconcile with the requirements of \"fundamental justice\" as set out in s. 7 of the Charter .", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-57", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 57", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "62. It is perhaps worth noting that if the Immigration Appeal Board allows a redetermination hearing to proceed pursuant to s. 71(1), the Minister is entitled pursuant to s. 71(2) to notice of the time and place of the hearing and a reasonable opportunity to be heard. It seems to me that, as a matter of fundamental justice, a refugee claimant would be entitled to discovery of the Minister's case prior to such a hearing. It must be acknowledged, of course, that some of the information upon which the Minister's case would be based might be subject to Crown privilege. But the courts are well able to give the applicant relief if the Minister attempts to make an overly broad assertion of privilege: see Canada Evidence Act, 1980‑81‑82‑83 (Can.), c. 111, Schedule III, s. 36.1.\n\n63. Under the Act as it presently stands, however, a refugee claimant may never have the opportunity to make an effective challenge to the information or policies which underlie the Minister's decision to reject his claim. Because s. 71(1) requires the Immigration Appeal Board to reject an application for redetermination unless it is of the view that it is more likely than not that the applicant will be able to succeed, it is apparent that an application will usually be rejected before the refugee claimant has had an opportunity to discover the Minister's case against him in the context of a hearing. Indeed, given the fact that s. 71(1) resolves any doubt as to whether or not there should be a hearing against the refugee claimant, I find it difficult to see how a successful challenge to the accuracy of the undisclosed information upon which the Minister's decision is based could ever be launched.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-58", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 58", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "64. I am accordingly of the view that the procedures for determination of refugee status claims as set out in the Immigration Act, 1976 do not accord refugee claimants fundamental justice in the adjudication of those claims and are thus incompatible with s. 7 of the Charter . It is therefore necessary to go forward to the third stage of the inquiry and determine whether the shortcomings of these procedures in relation to the standards set out by s. 7 constitute reasonable limits which can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter .\n\n(c) Can the Procedures be Saved under s. 1 of the Charter ?\n\n65. Section 1 of the Charter reads:\n\n1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.\n\nIt follows, accordingly, that if the limitations on the rights set out in the Charter meet the test articulated in s. 1 , the Charter has not been violated and the Court's remedial powers thereunder are not called into play.\n\n66. The question of the standards which the Court should use in applying s. 1 is, without a doubt, a question of enormous significance for the operation of the Charter . If too low a threshold is set, the courts run the risk of emasculating the Charter . If too high a threshold is set, the courts run the risk of unjustifiably restricting government action. It is not a task to be entered upon lightly.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-59", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 59", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "67. Unfortunately, counsel devoted relatively little time in the course of argument to the principles the Court should espouse in applying s. 1. This is certainly understandable given the complexity of the other issues which are in one sense preliminary to the application of s. 1. It is nevertheless to be regretted. A particular disappointment is the limited scope of the factual material brought forward by the respondent in support of the proposition that the Immigration Act's provisions constitute a \"reasonable limit\" on the appellants' rights. It must be acknowledged that counsel operated under considerable time pressure in the preparation of these appeals and I do not intend these remarks as a criticism of the presentation made to the Court by counsel which was, indeed, extremely valuable. On the other hand, I feel constrained to echo the observations made by Estey J. in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at p. 384, where he said:\n\nAs experience accumulates, the law profession and the courts will develop standards and practices which will enable the parties to demonstrate their position under s. 1 and the courts to decide issues arising under that provision. May it only be said here, in the cause of being helpful to those who come forward in similar proceedings, that the record on the s. 1 issue was indeed minimal, and without more, would have made it difficult for a court to determine the issue as to whether a reasonable limit on a prescribed right had been demonstrably justified.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-60", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 60", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "68. Mr. Bowie's submissions on behalf of the Minister with respect to s. 1 were that Canadian procedures with respect to the adjudication of refugee claims had received the approbation of the office of the United Nations High Commissioner for Refugees and that it was not uncommon in Commonwealth and Western European countries for refugee claims to be adjudicated administratively without a right to appeal. He further argued that the Immigration Appeal Board was already subjected to a considerable strain in terms of the volume of cases which it was required to hear and that a requirement of an oral hearing in every case where an application for redetermination of a refugee claim has been made would constitute an unreasonable burden on the Board's resources.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-61", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 61", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "69. One or two comments are in order respecting this approach to s. 1. It seems to me that it is important to bear in mind that the rights and freedoms set out in the Charter are fundamental to the political structure of Canada and are guaranteed by the Charter as part of the supreme law of our nation. I think that in determining whether a particular limitation is a reasonable limit prescribed by law which can be \"demonstrably justified in a free and democratic society\" it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter . The issue in the present case is not simply whether the procedures set out in the Immigration Act, 1976 for the adjudication of refugee claims are reasonable; it is whether it is reasonable to deprive the appellants of the right to life, liberty and security of the person by adopting a system for the adjudication of refugee status claims which does not accord with the principles of fundamental justice.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-62", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 62", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "70. Seen in this light I have considerable doubt that the type of utilitarian consideration brought forward by Mr. Bowie can constitute a justification for a limitation on the rights set out in the Charter . Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7, implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles. Whatever standard of review eventually emerges under s. 1, it seems to me that the basis of the justification for the limitation of rights under s. 7 must be more compelling than any advanced in these appeals.\n\n71. Moreover, I am not convinced in light of the submissions made by the appellants that the limitations on the rights of refugee claimants which are imposed by the adjudication procedures of the Immigration Act, 1976 are reasonable even on the respondent's own terms. It is obvious that there is a considerable degree of dissatisfaction with the present system even on the part of those who administer it. In an address given in Toronto on October 25, 1980, Janet Scott, Q.C., the Chairman of the Immigration Appeal Board made the following remarks:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-63", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 63", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "There is no blinking at the fact that the sections dealing with the Board's jurisdiction in refugee redetermination are highly unsatisfactory. Leaving aside any consideration of natural justice, the system is extremely cumbersome, and when we enter into the sphere of natural justice, open to criticism as unjust.\n\n72. In September 1980 the Minister of Employment and Immigration established a Task Force on Immigration Practices and Procedures and in November 1981 the Task Force issued a report entitled The Refugee Status Determination Process. The Task Force recommended wholesale changes in the procedures employed in the determination of refugee claims, including a recommendation that \"A refugee claimant should be entitled to a hearing in every case where the [Refugee Status Advisory Committee] is not prepared to make a positive recommendation on the basis of the transcript\" (Report p. xvi). In its conclusion, the Task Force discussed the impact of its recommendation that an oral hearing be given in each case. At page 103 the Report states:\n\nIn the end, then, the question is one of resources. Would the additional expenditures be warranted? How does one do a cost‑benefit analysis where the \"benefit\" is to be found in vague concepts, such as \"fairness\" and \"justice\"? One approach may be to canvass other forms of adjudication by federal tribunals and compare the significance of their decisions and the kinds of hearings which they offer with those of the refugee determination process. Without referring to specific bodies or in any way denigrating the importance of their work, the impact of their decisions often pales in comparison to refugee determination. Yet they generally offer far more in the way of procedural fairness.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-64", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 64", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "73. Even if the cost of compliance with fundamental justice is a factor to which the courts would give considerable weight, I am not satisfied that the Minister has demonstrated that this cost would be so prohibitive as to constitute a justification within the meaning of s. 1. Though it is tempting to make observations about what factors might give rise to justification under s. 1, and on the standards of review which should be applied with respect to s. 1, I think it would be unwise to do so. I therefore confine my observations on the application of s. 1 to those necessary for the disposition of the appeals.\n\n74. To recapitulate, I am persuaded that the appellants are entitled to assert the protection of s. 7 of the Charter in the determination of their claims to Convention refugee status under the Immigration Act, 1976. I am further persuaded that the procedures under the Act as they were applied in these cases do not meet the requirements of fundamental justice under s. 7 and that accordingly the appellants' rights under s. 7 were violated. Finally, I believe that the respondent has failed to demonstrate that the procedures set out in the Act constitute a reasonable limit on the appellants' rights within the meaning of s. 1 of the Charter . I would accordingly allow the appeals. In so doing I should, however, observe that the acceptance of certain submissions, particularly concerning the scope of s. 7 of the Charter in the context of these appeals, is not intended to be definitive of the scope of the section in other contexts. I do not by any means foreclose the possibility that s. 7 protects a wider range of interests than those involved in these appeals.\n\n4. Remedies", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-65", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 65", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "75. I turn now to the issue of the remedy to which the appellants are entitled. Sections 24(1) of the Charter and 52(1) of the Constitution Act, 1982 both apply. Section 52(1) requires a declaration that s. 71(1) of the Immigration Act, 1976 is of no force and effect to the extent it is inconsistent with s. 7. The appellants who have suffered as a result of the application of an unconstitutional law to them are entitled under s. 24(1) to apply to a court of competent jurisdiction for \"such remedy as the court considers appropriate and just in the circumstances\". What remedy is available in the context of this case?\n\n76. The Court's jurisdiction is invoked in two contexts. In the first, these are appeals from dismissals by the Federal Court of Appeal of applications for judicial review under s. 28 of the Federal Court Act. In this context the Court is limited to the powers the Federal Court is entitled to exercise pursuant to s. 28. In the other context, however, the Court's broad remedial powers under s. 24 of the Charter are invoked.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-66", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 66", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "77. The significance of the limitation of the Court's judicial review power under s. 28 of the Federal Court Act is apparent from the decision of Urie J. in Brempong v. Minister of Employment and Immigration, supra. In that case, Urie J. observed that s. 28 provided the Federal Court of Appeal with supervisory powers only over decisions made on a \"judicial or quasi‑judicial basis\" and that accordingly the Court had no jurisdiction to review what he characterized as an \"administrative\" decision by the Minister under s. 45 of the Immigration Act, 1976. The Board is a quasi‑judicial body and without doubt its determinations are subject to review under s. 28. The question the Court faces, as I see it, is whether the broader remedial power which it possesses under s. 24(1) of the Charter entitles it to extend its review of possible violations of the Charter to the Ministerial determinations made pursuant to s. 45 of the Immigration Act, 1976. In my view it does not.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-67", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 67", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "78. Section 24(1) of the Charter provides remedial powers to \"a court of competent jurisdiction\". As I understand this phrase, it premises the existence of jurisdiction from a source external to the Charter itself. This Court certainly has jurisdiction to review the decisions of the Immigration Appeal Board in these cases pursuant to s. 28 of the Federal Court Act. If the appeals originated as petitions for certiorari brought in the Trial Division of the Federal Court pursuant to s. 18 of the Federal Court Act, the Ministerial decisions made pursuant to s. 45 of the Immigration Act, 1976 would be subject to review. In my view, however, any violations of the Charter which arose out of Ministerial decisions under s. 45 are not subject to review on these appeals because of the judicial limitations on the Federal Court of Appeal under s. 28 of the Federal Court Act. I would accordingly make no observations with respect to them or with respect to the question of whether or to what extent s. 45 of the Immigration Act, 1976 is of no force and effect as a result of any inconsistency with the Charter .", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-68", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 68", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "79. Confining myself to the decisions of the Immigration Appeal Board which are under review, I would allow the appeals, set aside the decisions of the Federal Court of Appeal and of the Immigration Appeal Board and remand all seven cases for a hearing on the merits by the Board in accordance with the principles of fundamental justice articulated above. Since s. 71(1) of the Immigration Act, 1976 which restricts the Board's power to allow hearings to proceed to cases in which it is of the opinion that the applicant for redetermination is more likely than not to succeed upon a hearing of his claim, is inconsistent with the principles of fundamental justice set out in s. 7 of the Charter , the appellants are also entitled to a declaration that s. 71(1) is of no force and effect to the extent of the inconsistency.\n\n80. I would award costs on the application for leave to appeal and costs of the appeal to this Court to Mr. Satnam Singh on a solicitor‑client basis. Costs in respect of the other six appellants shall be as prescribed by the Order of this Court dated February 16, 1984.\n\nThe reasons of Beetz, Estey and McIntyre were delivered by\n\n81. Beetz J.‑‑The main issue which was argued when these appeals were heard on April 30 and May 1, 1984, was whether the procedures set out in the Immigration Act, 1976, 1976‑77 (Can.), c. 52 as amended, for the adjudication of the claims of persons claiming refugee status in Canada, deny such claimants rights they are entitled to assert under s. 7 of the Canadian Charter of Rights and Freedoms . No submissions were made at that time as to the possible application of the Canadian Bill of Rights to these appeals.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-69", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 69", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "82. On December 7, 1984, the Deputy Registrar wrote to counsel to inform them that the members of the Court would like to have their submissions in writing on the application of the Canadian Bill of Rights. Counsel for all the parties and the interveners complied and counsel for the appellants replied, also in writing.\n\n83. Like my colleague, Madame Justice Wilson, whose reasons for judgment I have had the advantage of reading, I conclude that these appeals ought to be allowed. But I do so on the basis of the Canadian Bill of Rights. I refrain from expressing any views on the question whether the Canadian Charter of Rights and Freedoms is applicable at all to the circumstances of these cases and more particularly, on the important question whether the Charter affords any protection against a deprivation or the threat of a deprivation of the right to life, liberty or security of the person by foreign governments.\n\n84. Section 26 of the Canadian Charter of Rights and Freedoms should be kept in mind. It provides:\n\n26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.\n\n85. Thus, the Canadian Bill of Rights retains all its force and effect, together with the various provincial charters of rights. Because these constitutional or quasi‑constitutional instruments are drafted differently, they are susceptible of producing cumulative effects for the better protection of rights and freedoms. But this beneficial result will be lost if these instruments fall into neglect. It is particularly so where they contain provisions not to be found in the Canadian Charter of Rights and Freedoms and almost tailor‑made for certain factual situations such as those in the cases at bar.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-70", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 70", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "86. I refer to my colleague's account of the facts, the procedural history of the seven appeals and generally, to her quotation of the relevant provisions of the Immigration Act, 1976, and her description of the scheme of the Act.\n\n87. The main issue, as I see it, is whether the procedures followed in these cases for the determination of Convention refugee status are in conflict with the Canadian Bill of Rights and more particularly with s. 2(e) thereof.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-71", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 71", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "88. In order to understand the scheme of the Immigration Act, 1976 it is necessary to refer to all the procedures for determination of whether an individual is a Convention refugee, including initial determination under ss. 45 to 48 of the Act and redetermination by the Immigration Appeal Board, under ss. 70 and 71. It should be emphasized however that, in these appeals, we are directly concerned only with redetermination made by the Immigration Appeal Board pursuant to s. 71(1) of the Immigration Act, 1976, whereby the Board ordered that the applications for redetermination of the claims be not allowed to proceed and determined that the applicants were not Convention refugees. The appellants have unsuccessfully applied to the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to have these orders reviewed and set aside. But the advice given by the Refugee Status Advisory Committee and the initial determinations made by the Minister pursuant to s. 45 of the Act have not been attacked and are not subject to review in these appeals from the decisions of the Federal Court of Appeal. I stress this because several submissions were made to us relating to alleged procedural shortcomings at the initial determination stage and relating as well to various means to remedy those shortcomings. Such remedies, whatever their merit, would not help the present appellants who have passed the initial determination stage. And, in any event, in an appeal from a decision of the Federal Court of Appeal on a s. 28 application to review, our jurisdiction, if we allow the appeal, is limited to rendering the decision which the Federal Court of Appeal ought to have rendered.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-72", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 72", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "89. As I said earlier, the relevant provision of the Canadian Bill of Rights is s. 2(e) but it will also be convenient to quote s. 1:\n\n1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,\n\n(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;\n\n(b) the right of the individual to equality before the law and the protection of the law;\n\n(c) freedom of religion;\n\n(d) freedom of speech;\n\n(e) freedom of assembly and association, and\n\n(f) freedom of the press.\n\n2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it should operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to\n\n...\n\n(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.\n\n90. The main submissions made by Mr. Scott, of counsel for the first six appellants, are to a substantial extent supported by Mr. Coveney, of counsel for the seventh appellant, who took a slightly different approach. They read as follows:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-73", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 73", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "2. The Appellants submit that either section 45 or 71 of the Immigration Act abrogates the right guaranteed by section 2(e) of the Bill of Rights, unless one of those sections is construed as requiring a full hearing before the Refugee Status Advisory Committee (RSAC), the Minister, or the Immigration Appeal Board, which hearings have not been held in any of these 6 cases.\n\n3. The Appellants submit that two points must be established in order to show that a breach of section 2(e) has occurred:\n\n1. that the Appellants' \"rights and obligations\" fall to be \"determined\" by the RSAC, the Minister and the Immigration Appeal Board; and\n\n2. that the Appellants were not afforded a \"fair hearing in accordance with the principles of fundamental justice\" by any of these statutory authorities.\n\n91. Mr. Scott then gives what seems to me an accurate summary of the legal rights given to Convention refugees in Canada by the Immigration Act, 1976 and Regulations:\n\n1. the \"right to remain in Canada\" if a Minister's Permit is obtained; or\n\nImmigration Act, s. 4(2).\n\n2. if a Minister's Permit cannot be obtained, then:\n\n(a) the right not to be removed to a country where life or freedom is threatened;\n\nImmigration Act, s. 55.\n\n(b) if removed from Canada, the right to re‑enter if a safe country cannot be found; and\n\nImmigration Act, s. 14(1)(c).\n\n(c) the right to be considered under the criteria provided in the Regulations, for \"employment authorization\" while residing in Canada.\n\nRegulations, s. 19(3)(k), 20.\n\n92. Mr. Scott then concludes on this first branch of his submission:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-74", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 74", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "10. It is submitted that because Convention refugees enjoy these rights under Canadian law, a person who applies for refugee status under section 45 or 70 of the Act meets the first requirement for claiming the protection of \"fundamental justice\" under section 2(e) of the Bill of Rights, namely, that a law of Canada provides a procedure \"for the determination of his rights\".\n\n93. In his written submissions, Mr. Bowie, of counsel for the Attorney General of Canada, makes a concession in the following terms:\n\n2. The Attorney General of Canada does not dispute that the process of determining and redetermining refugee claims involves the determination of rights and obligations of the refugee claimants. It is only in that respect that his submissions with respect to section 2(e) of the Bill of Rights differ from his submissions with respect to section 7 of the Canadian Charter of Rights and Freedoms . It was submitted upon the hearing of these appeals that a denial of a claim to refugee status by the operation of Canadian law does not deprive the claimant of \"the right to life, liberty and security of the person\" guaranteed by section 7 of the Charter .\n\n94. In his reply, Mr. Scott refers to the Attorney General's acknowledgment that the process of adjudicating refugee claims under the Immigration Act, 1976 involves the determination of \"rights and obligations\". Mr. Scott then concludes:\n\nThe remaining issue, therefore, is whether the procedures provided by the Act conform to the dictates of \"fundamental justice\".", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-75", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 75", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "95. In view of the last sentence in the Attorney General's acknowledgment quoted above, I am not absolutely clear whether or not it was conceded by the Attorney General that the \"rights\" referred to in s. 2(e) of the Canadian Bill of Rights are not the same rights or rights of the same nature as those which are enumerated in s. 1, including \"the right of the individual to life, liberty, security of the person... and the right not to be deprived thereof except by due process of law\".\n\n96. Be that as it may, it seems clear to me that the ambit of s. 2(e) is broader than the list of rights enumerated in s. 1 which are designated as \"human rights and fundamental freedoms\" whereas in s. 2(e), what is protected by the right to a fair hearing is the determination of one's \"rights and obligations\", whatever they are and whenever the determination process is one which comes under the legislative authority of the Parliament of Canada. It is true that the first part of s. 2 refers to \"the rights or freedoms herein recognized and declared\", but s. 2(e) does protect a right which is fundamental, namely \"the right to a fair hearing in accordance with the principles of fundamental justice\" for the determination of one's rights and obligations, fundamental or not. It is my view that, as was submitted by Mr. Coveney, it is possible to apply s. 2(e) without making reference to s. 1 and that the right guaranteed by s. 2(e) is in no way qualified by the \"due process\" concept mentioned in s. 1(a).", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-76", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 76", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "97. Accordingly, the process of determining and redetermining appellants' refugee claims involves the determination of rights and obligations for which the appellants have, under s. 2(e) of the Canadian Bill of Rights, the right to a fair hearing in accordance with the principles of fundamental justice. It follows also that this case is distinguishable from cases where a mere privilege was refused or revoked, such as Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, and Mitchell v. The Queen, [1976] 2 S.C.R. 570.\n\n98. I therefore agree with the first branch of Mr. Scott's submission.\n\n99. What remains to be decided is whether in the cases at bar, the appellants were afforded \"a fair hearing in accordance with the principles of fundamental justice\".\n\n100. I have no doubt that they were not.\n\n101. What the appellants are mainly justified of complaining about in my view is that their claims to refugee status have been finally denied without their having been afforded a full oral hearing at a single stage of the proceedings before any of the bodies or officials empowered to adjudicate upon their claim on the merits. They have actually been heard by the one official who has nothing to say in the matter, a senior immigration officer. But they have been heard neither by the Refugee Status Advisory Committee, who could advise the Minister, neither by the Minister, who had the power to decide and who dismissed their claim, nor by the Immigration Appeal Board which did not allow their application to proceed and which determined, finally, that they are not Convention refugees.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-77", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 77", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "102. I do not wish to suggest that the principles of fundamental justice will impose an oral hearing in all cases. In Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, at p. 747, Estey J. speaking for the Court quoted Tucker L.J. in Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.), at p. 118:\n\nThe requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject‑matter that is being dealt with, and so forth.\n\n103. The most important factors in determining the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned. In the same Inuit Tapirisat case, at the same page, Estey J. also quoted Lord Denning, M.R., in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), at p. 19:\n\n. . . that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.\n\n104. In the cases at bar, the seven appellants have stated under oath the reasons for which they claim to be Convention refugees. A \"Convention refugee\" is defined in s. 2(1) of the Immigration Act, 1976:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-78", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 78", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "\"Convention refugee\" means any persons who, by reason of a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,\n\n(a) is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or\n\n(b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country;\n\n105. The Immigration Act, 1976 gives convention refugees the right to \"remain\" in Canada, or, if a Minister's Permit cannot be obtained, at least the right not to be removed to a country where life and freedom is threatened, and to re‑enter Canada if no safe country is willing to accept them. The rights at issue in these cases are accordingly of vital importance for those concerned.\n\n106. The first six appellants make the following submissions:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-79", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 79", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "18. In the Appellants' submission the fact that the threat to life or freedom or physical security comes from a foreign state in refugee cases is irrelevant to the legal issue now before this Court under the Canadian Bill of Rights. In considering the application of section 7 of the Charter in these cases, it may be that the locus of the threat to life or liberty or security of the person is relevant, because in order to claim the protection of \"fundamental justice\" under the Charter , the Appellants must establish an infringement of the right to life or liberty or security of the person as guaranteed by section 7. Presumably, only a Canadian government can breach the Charter of Rights and Freedoms, including section 7. For this reason, at the hearing before this Court, the Appellants put their Charter case on the basis that the government of Canada infringed their liberty by arresting them and detaining them until \"removal\" from Canada could be effected.\n\n19. Under section 2(e) of the Bill of Rights, however, the Appellants need not show that the Canadian government deprives them of their life, liberty or physical security. Rather, they need only show that their \"rights\" fall to be \"determined\" by federal law. In construing and applying the Immigration Act according to the terms of section 2(e) of the Bill of Rights therefore, threats to life or liberty by a foreign power are relevant ...", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-80", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 80", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "107. Again, I express no views as to the applicability of the Canadian Charter of Rights and Freedoms , but I otherwise agree with these submissions: threats to life or liberty by a foreign power are relevant, not with respect to the applicability of the Canadian Bill of Rights, but with respect to the type of hearing which is warranted in the circumstances. In my opinion, nothing will pass muster short of at least one full oral hearing before adjudication on the merits.\n\n108. There are additional reasons why the appellants ought to have been given an oral hearing. They are mentioned in the following submission with which I agree:\n\nThe Appellants submit that although \"fundamental justice\" will not require an oral hearing in every case, where life or liberty may depend on findings of fact and credibility, and it may in these cases, the opportunity to make written submissions, even if coupled with an opportunity to reply in writing to allegations of fact and law against interest, would be insufficient.\n\n109. Finally, I wish to quote part of the dissenting reasons written by Pigeon J. in Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639, at pp. 657 and following:\n\nIt should at first be pointed out that the appellant's claim for refugee status was made under amendments to the Immigration Appeal Board Act (R.S.C. 1970, c. I‑3, \"the Act\") enacted by the statute of 1973, 21‑22 Eliz. II, c. 27, ss. 1 and 5. (The Immigration Act, 1976 (25‑26 Eliz. II, c. 52), although assented to August 5, 1977, was proclaimed in force on April 10, 1978.)\n\nThe first mentioned amendment added to s. 2 of the Act the following definition:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-81", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 81", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "\"Convention\" means the United Nations Convention Relating to the Status of Refugees signed at Geneva on the twenty‑eighth day of July, 1951 and includes any Protocol thereto ratified or acceded to by Canada;\n\nThe other amendment replaced s. 11 by a new section, the relevant parts of which are as follows:\n\n11. (1) Subject to subsections (2) and (3), a person against whom an order of deportation is made under the Immigration Act may appeal to the Board on any ground of appeal that involves a question of law or fact or mixed law and fact, if, at the time that the order of deportation is made against him, he is\n\n...\n\n(c) a person who claims he is a refugee protected by the Convention; or\n\n...\n\n(2) Where an appeal is made to the Board pursuant to subsection (1) and the right of appeal is based on a claim described in paragraph (1)(c) or (d), the notice of appeal to the Board shall contain or be accompanied by a declaration under oath setting out\n\n(a) the nature of the claim;\n\n(b) a statement in reasonable detail of the facts on which the claim is based;\n\n(c) a summary in reasonable detail of the information and evidence intended to be offered in support of the claim upon the hearing of the appeal; and\n\n(d) such other representations as the appellant deems relevant to the claim.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-82", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 82", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "(3) Notwithstanding any provision of this Act, where the Board receives a notice of appeal and the appeal is based on a claim described in paragraph (1)(c) or (d), a quorum of the Board shall forthwith consider the declaration referred to in subsection (2) and, if on the basis of such consideration the Board is of the opinion that there are reasonable grounds to believe that the claim could, upon the hearing of the appeal, be established, it shall allow the appeal to proceed, and in any other case it shall refuse to allow the appeal to proceed and shall thereupon direct that the order of deportation be executed as soon as practicable.\n\n...\n\nIn the present case no indication was given to the appellant of the reasons for which her claim to refugee status was denied and, in my view, this raises a very serious question. The Immigration Appeal Board is not an administrative agency but a \"court of record\" (s. 7, now s. 65). It must therefore be subject to the rule that it is not enough that justice be done, it must appear to be done. It is also a well established principle that audi alteram partem is a rule of natural justice so firmly adopted by the common law that it applies to all those who fulfil judicial functions and it is not excluded by inference. See: L’Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board [1953] 2 S.C.R. 140, per Rinfret C.J. at p. 154:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-83", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 83", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "[TRANSLATION] The rule that no one should be convicted or deprived of his rights without a hearing, and especially without even being informed that his rights would be in question, is a universal rule of equity, and the silence of a statute should not be relied on as a basis for ignoring it. In my opinion, there would have to be nothing less than an express statement by the legislator for this rule to be superseded: it applies to all courts and to all bodies required to make a decision that might have the effect of destroying a right enjoyed by an individual.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-84", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 84", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Komo Construction Inc. v. Labour Relations Board, [1968] S.C.R. 172, this Court upheld a decision rendered without a hearing when the parties had been given the opportunity of submitting argument in writing and the Board had issued reasons. This is a very different situation from that which is presented in this case where there was no hearing and no reasons were given. In MacDonald v. The Queen, [1977] 2 S.C.R. 665, this Court upheld a conviction by special Court Martial although no reasons had been given but there had been a hearing. I know of no case where a judicial decision was upheld, where there was neither a hearing nor reasons given, so that nothing shows on what basis the decision was reached. It may be different when the decision is on a purely discretionary matter such as the granting of leave to appeal, but here the decision of the Board is an adjudication on appellant's entitlement to refugee status, a matter of right under the statute and the Convention, not a matter of discretion. In Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470, this Court accepted that where the statute provided for the issue of a special certificate by administrative decision this was to be taken as final and as excluding the audi alteram partem rule, but such is not the case with respect to the determination of refugee status. This was entrusted to a board which is a \"court\" and must act judicially as appears from such cases as Leiba v. Minister of Manpower and Immigration, [1972] S.C.R. 660.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-85", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 85", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "I do, of course, appreciate that the validity of the Immigration Appeal Board \"judgement\" is not directly in question before this Court and that the decision challenged before us is the order of the Federal Court of Appeal denying leave to appeal. However, I feel it is essential for a proper appreciation of what is involved in the matter to consider fully the ultimate result, that Canada having entrusted to a special court the adjudication of claims to refugee status this was done in this case without any semblance of due process. The Court is faced with a decision without reasons, without a hearing, without any statement of the Minister's objections, if any, to appellant's claim for refugee status.\n\n110. It should be pointed out that in the cases at bar, all the appellants were provided with short reasons of the Minister and two of them were provided with more elaborate reasons of the Immigration Appeal Board. The remaining appellants did not exercise their rights to request and receive the reasons of the Board pursuant to s. 71(4) of the Immigration Act, 1976. But the opinion of Pigeon J. retains all its relevance with respect to the necessity of a hearing and it is reinforced by the Canadian Bill of Rights. As indicated earlier, this was a dissenting opinion, but it was not on this point that it differed from the reasons of the majority. It was also concurred in by two other members of the Court. Pigeon J. does not expressly mention the necessity of an oral hearing but this is what he must have meant given his distinguishing the Komo Construction case dealing with a situation in which there had been no oral hearing, and his reference to the MacDonald case, a special Court Martial case where an oral hearing had been held.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-86", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 86", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "111. Since the appellants have been denied their fundamental right to a hearing, the question arises as to what remedy they are entitled to in the circumstances of these cases.\n\n112. It seems clear to me that the orders of the Immigration Appeal Board concerning them ought to be set aside and that their claims to Convention refugee status ought to be adjudicated upon on the merits after the holding of full oral hearings. The question is by whom should these claims so be adjudicated upon.\n\n113. For various reasons, all the appellants have expressed a preference for an adjudication at the initial stage, that is at the level of the Refugee Status Advisory Committee which would then not only advise, but decide in a manner consistant with s. 2(e) of the Canadian Bill of Rights; or alternatively, at the level of the Minister who would decide the issue in a similar manner. In their written submissions, counsel argued that it was more proper as well as more convenient that the situation be remedied at the first instance level rather than at the appellate one. It was pointed out that in a press release dated May 2, 1983, the Minister of Employment and Immigration announced that oral hearings for refugee claimants would be held on an experimental basis in Montréal and Toronto by members of the Refugee Status Advisory Committee. It was observed that the text of s. 45 of the Immigration Act, 1976 in no way forbids or prevents the holding of oral hearings. Declarations that certain parts of ss. 45(4) and 45(5) of the Immigration Act, 1976 are inoperative were suggested to empower the Refugee Status Advisory Committee to adjudicate rather than to advise.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-87", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 87", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "114. The points might be well taken if they were addressed to Parliament. There is probably more than one way to remedy the constitutional shortcomings of the Immigration Act, 1976. But it is not the function of this Court to re‑write the Act. Nor is it within its power. If the Constitution requires it, this and other courts can do some relatively crude surgery on deficient legislative provisions, but not plastic or re‑constructive surgery. Furthermore, for the procedural and jurisdictional reasons mentioned earlier, all that is before us is a decision of the Federal Court of Appeal dismissing s. 28 applications aimed at the orders of the Immigration Appeal Board. To repeat, the advice given by the Refugee Status Advisory Committee and the initial determinations made by the Minister have not been attacked and are not subject to review in these appeals.\n\n115. We are thus left with the Immigration Appeal Board and with ss. 70 and 71 of the Immigration Act, 1976:\n\n70. (1) A person who claims to be a Convention refugee and has been informed in writing by the Minister pursuant to subsection 45(5) that he is not a Convention refugee may, within such period of time as is prescribed, make an application to the Board for a redetermination of his claim that he is a Convention refugee.\n\n(2) Where an application is made to the Board pursuant to subsection (1), the application shall be accompanied by a copy of the transcript of the examination under oath referred to in subsection 45(1) and shall contain or be accompanied by a declaration of the applicant under oath setting out\n\n(a) the nature of the basis of the application;\n\n(b) a statement in reasonable detail of the facts on which the application is based;", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-88", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 88", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "(c) a summary in reasonable detail of the information and evidence intended to be offered at the hearing; and\n\n(d) such other representations as the applicant deems relevant to the application.\n\n71. (1) Where the Board receives an application referred to in subsection 70(2), it shall forthwith consider the application and if, on the basis of such consideration, it is of the opinion that there are reasonable grounds to believe that a claim could, upon the hearing of the application, be established, it shall allow the application to proceed, and in any other case it shall refuse to allow the application to proceed and shall thereupon determine that the person is not a Convention refugee.\n\n(2) Where pursuant to subsection (1) the Board allows an application to proceed, it shall notify the Minister of the time and place where the application is to be heard and afford the Minister a reasonable opportunity to be heard.\n\n(3) Where the Board has made its determination as to whether or not a person is a Convention refugee, it shall, in writing, inform the Minister and the applicant of its decision.\n\n(4) The Board may, and at the request of the applicant or the Minister shall, give reasons for its determination.\n\n116. While section 71(1) may not expressly prohibit an oral hearing, as drafted, it does not make any sense if an oral hearing is held at this stage, and it is accordingly inconsistant with the holding of an oral hearing. Mr. Scott made the two following submissions:", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-89", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 89", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "31. In the further alternative, the Appellants submit that if section 45(4) is not construed as requiring a hearing before either the Minister or the RSCA, \"fundamental justice\" would nevertheless be satisfied if section 71 were construed as requiring a hearing before the Immigration Appeal Board on an application for \"redetermination\".\n\n32. It is submitted, however, that this would require a somewhat awkward construction of section 71(1) insofar as the section would then require a full oral hearing and consideration of the merits, in conformity with natural justice, in order that the Board might determine whether to grant leave to appeal, in which case a second hearing on the merits would occur. It is submitted, therefore, that the most straightforward and reasonable alternative is to declare \"inoperative\" all the words of section 71(1) following the words \"Where the Board receives an application referred to in subsection 70(2), it shall forthwith consider the application...\". If the remainder of this subsection were \"inoperative\", the result would be a hearing on the merits before the Appeal Board, which would decide the case.\n\n117. I agree with the last submission and I would grant the declaration therein requested, such a declaration to be in force however only with respect to the seven cases at bar where Convention refugee claims have been adjudicated upon on the merits without the holding of an oral hearing at any stage.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-90", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 90", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "118. The reason of the last mentioned restriction in the declaration is that I wish to refrain from expressing any view and to reserve judgment on the question whether s. 71(1) of the Immigration Act, 1976 is compatible with s. 2(e) of the Canadian Bill of Rights, in a case where a Convention refugee claim has been dismissed at the initial stage but after an oral hearing, and the claimant applied to the Board for a redetermination of his claim. It seems to me that in such a case, an application in writing for what is analogous to a leave to appeal, would not necessarily deprive the claimant of the right to a fair hearing in accordance with the principles of fundamental justice. Much might depend on the type of oral hearing held at the earlier stage, as well as on the type of questions to be decided in the appeal.\n\n119. In such a hypothetical case, the question would also arise as to whether the burden imposed upon the applicant by s. 71(1) to show a probability of success on a full hearing is compatible with the principles of natural justice. This test was adopted by this Court as a matter of statutory construction in Kwiatkowski v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856, but the Canadian Bill of Rights was not argued in that case. This question would not arise in the cases at bar where the Immigration Appeal Board will have to adjudicate on merits for the appellants' claims.\n\n120. I realize that if the Board does as I propose, the proceedings contemplated by s. 71(1) of the Immigration Act, 1976 will be short‑circuited and, for all practical purposes, be replaced by what amounts to a full appeal. But I fail to see any other practical or reasonable alternative in the circumstances of these cases.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-91", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 91", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "121. In the case of The Queen v. Drybones, [1970] S.C.R. 282, a provision of the Indian Act, R.S.C. 1952, c. 149, enacted prior to the adoption of the Canadian Bill of Rights was declared inoperative because it operated so as to abrogate, abridge or infringe one of the rights declared and recognized by the Canadian Bill of Rights. It has not been declared by any Act of the Parliament of Canada that the Immigration Act, 1976 shall operate notwithstanding the Canadian Bill of Rights. In view of s. 5(2) of An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms, 1960 (Can.), c. 44, in Part II which follows the Canadian Bill of Rights, I do not see any reason not to apply the principle in the Drybones case to a provision enacted after the Canadian Bill of Rights. Section 5(2) provides:\n\n(2) The expression \"law of Canada\" in Part I means an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada.\n\n122. One last point before I reach my conclusion.\n\n123. All the parties agree that when the Immigration Appeal Board proceeds under s. 71(1) of the Immigration Act, 1976 it should not take into account any facts or materials other than those specified by s. 70(2) of the Act, notwithstanding some decisions of the Federal Court of Appeal which would appear to hold that the Board may rely for instance on information acquired through its experience in refugee cases. I would so direct the Board to restrict itself to the facts and material specified in s. 70(2) of the Act.\n\nConclusions", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-39-92", - "doc_type": "caselaw", - "act_code": "[1985] 1 SCR 177", - "act_short": "Singh", - "act_name": "Singh v. Minister of Employment and Immigration", - "section": "", - "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", - "marginal_note": "excerpt 92", - "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", - "part": "Supreme Court of Canada", - "division": "", - "text": "124. The appeals are allowed, the decisions of the Federal Court of Appeal and of the Immigration Appeal Board are set aside. The applications of the appellants for redetermination of their refugee claims are remanded to the Immigration Appeal Board which is directed to adjudicate upon them on the merits after a full oral hearing in each case, in accordance with the directions contained in these reasons.\n\n125. For the purposes of these seven cases, I would declare inoperative all the words of s. 71(1) of the Immigration Act, 1976, following the words:\n\n\"Where the Board receives an application referred to in subsection 70(2), it shall forthwith consider the application\".\n\n126. I would award costs on the application for leave to appeal and costs of the appeal to this Court to Mr. Satnam Singh on a solicitor‑client basis. Costs in respect of the other six appellants shall be as prescribed by the Order of this Court dated February 16, 1984.\n\nAppeals allowed.", - "current_to": "1985-04-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" - }, - { - "id": "scc-377-1", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 1", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "r. v. simmons, [1988] 2 S.C.R. 495\n\nLaura Mary Simmons Appellant\n\nv.\n\nHer Majesty The Queen Respondent\n\nand\n\nThe Attorney General for Ontario Intervener\n\nindexed as: r. v. simmons\n\nFile No.: 18767.\n\n1988: January 28; 1988: December 8.\n\nPresent: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.\n\non appeal from the court of appeal for ontario\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Customs searches ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Whether accused detained and having right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether right to counsel was subject to a reasonable limit prescribed by law justifiable under s. 1 of the Charter ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Customs searches ‑‑ Whether the personal search provisions in the Customs Act inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether right against unreasonable search and seizure was subject to a reasonable limit prescribed by law justifiable under s. 1 of the Charter ‑‑ Whether search conducted in a reasonable manner ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Accused's right to counsel infringed ‑‑ Whether admission of evidence of narcotics would bring the administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-2", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 2", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Customs and excise ‑‑ Customs searches ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Whether the personal search provisions in the Customs Act inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.\n\nEvidence ‑‑ Admissibility ‑‑ Bringing administration of justice into disrepute ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Accused's right to counsel infringed ‑‑ Whether admission of evidence of narcotics would bring the administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-3", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 3", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Appellant, on entering Canada, proceeded to the primary customs inspection where she was routinely questioned by a customs officer. The officer found her to be overly nervous and referred her for a secondary inspection. The secondary inspector was also suspicious of the appellant and obtained permission from the Customs Superintendent to search her. Her suspicions were based on the primary inspector's doubts about the appellant, her dissatisfaction with her identification, and on her observation that the appellant, although otherwise very slender, was slightly heavy and bulging in the area of her upper abdomen. Appellant was taken into a search room and shown a sign on the wall which set out ss. 143 and 144 of the Customs Act. These sections provided the authority for conducting personal searches. The inspector, accompanied by an other female customs officer, told the appellant to undress. Appellant complied and removed some of her clothes, revealing white adhesive bandages around her midriff. Concealed in the bandages were plastic bags containing cannabis resin. The appellant was then arrested and informed of her right to retain and instruct counsel.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-4", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 4", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "At trial, the judge held that the appellant had been detained from the moment she was taken into the search room and, because she had not been informed of her right to retain and instruct counsel before the search, her right under s. 10( b ) of the Canadian Charter of Rights and Freedoms had been violated. The trial judge then excluded the evidence under s. 24(2) of the Charter , holding that its admission into the proceedings would bring the administration of justice into disrepute. As a result, he acquitted the appellant. The Court of Appeal set aside appellant's acquittal and ordered a new trial. This appeal is to determine whether the appellant's rights under ss. 10( b ) and 8 of the Charter were violated when she was subjected to a strip search at customs; and, if so, whether evidence of narcotics obtained as a result of the search should be excluded under s. 24(2) of the Charter .\n\nHeld: The appeal should be dismissed.\n\nPer Dickson C.J. and Beetz, Lamer and La Forest JJ.: Appellant was detained within the meaning of s. 10 of the Charter when she was required, pursuant to s. 143 of the Customs Act, to undergo a strip search at customs and she should have been informed of her right to retain and instruct counsel at that time. This result is consistent with both the meaning given to detention in common parlance and with the definition set out in R. v. Therens, [1985] 1 S.C.R. 613. At the time of the search, appellant was clearly subject to external restraint. The customs officer had assumed control over her movements by a demand which had significant legal consequences. Appellant could not refuse to be searched and leave. Section 203 of the Customs Act makes it an offence to obstruct or to offer resistance to any personal search authorized by the Customs Act.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-5", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 5", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Sections 143 and 144 of the Customs Act do not infringe the right to be secure against unreasonable search and seizure enshrined in s. 8 of the Charter . It is true that these sections do not meet the safeguards articulated in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, but these standards do not apply to customs searches. The degree of personal privacy reasonably expected at customs is lower than in most other situations. Sovereign states have the right to control both who and what enters their boundaries. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods. Under sections 143 and 144 of the Customs Act, searches of the person are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body. The decision to search is subject to review at the request of the person to be searched. The searches are conducted in private rooms by officers of the same sex. In these conditions, requiring a person to remove pieces of clothing until such time as the presence or absence of concealed goods can be ascertained is not so highly invasive of an individual's bodily integrity to be considered unreasonable under s. 8 of the Charter .", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-6", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 6", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The search itself, however, was not conducted in a reasonable manner. The denial of the right to counsel in this case in conjunction with the absence of any explanation to the appellant of her rights under the Customs Act rendered the search unreasonable. The customs officers did not read the text of the personal search provisions to the appellant but simply pointed to a sign on the wall containing the text of ss. 143 and 144. There is no evidence that the appellant read the provisions‑‑much less understood them‑‑and that she knew of her right, under s. 144, to demand a second authorization. It is clear that the violation of the right to counsel deprived the appellant of her ability to exercise a legal right provided in the Customs Act. A search that might not have been conducted had the appellant had the benefit of legal advice was performed in circumstances in which the appellant was ignorant of her legal position. The violation of the right to counsel combined with the statutory right of prior authorization rendered the performance of the search unreasonable.\n\nThe violations of appellant's rights under ss. 10( b ) and 8 of the Charter could not be justified under s. 1 of the Charter . The violations of the appellant's right to counsel and of her right to be secure against unreasonable search and seizure resulted from the actions of customs officials. It was not a limitation imposed by law.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-7", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 7", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although the breaches of the appellant's ss. 10(b) and 8 rights was not trivial, the admission of the evidence in question would not bring the administration of justice into disrepute. There were ample facts to support the customs officer's suspicion that the appellant was concealing something on her body for the purpose of bringing it into Canada illegally. The evidence obtained as a result of the strip search was real evidence that existed irrespective of the Charter violations and its admission into evidence would not tend to affect adversely the fairness of the trial process. The customs officers acted in good faith based on accepted customs procedures. There was nothing deliberate or blatant in the denial of the appellant's rights. There was nothing to indicate that the customs officers treated the appellant in a discourteous fashion. Finally, this Court has previously held that the constitutional invalidity of a search power does not render evidence inadmissible if the officers conducting the search have relied in good faith on the constitutionality of the provision. In this instance, the customs officials acted in accordance with the existing statutory requirements at the time of the search. Under these circumstances, it is the exclusion of the evidence that would bring the administration of justice into disrepute.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-8", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 8", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Per Wilson J.: The constitutionality of appellant's strip search cannot be determined solely on the basis of whether there has been compliance with ss. 143 and 144 of the Customs Act. These statutory provisions must be read in accord with the obligation under s. 10( b ) of the Charter to inform those who are detained of their right to retain and instruct counsel and to respect that right. Any limit on the constitutionally guaranteed right to counsel, if it is to be valid under s. 1 of the Charter , has to be \"prescribed by law\". Sections 143 and 144 have to be examined to see whether a limit is provided for expressly or by necessary implication or through the operating requirements of the sections: see R. v. Therens, [1985] 1 S.C.R. 613, and R. v. Thomsen, [1988] 1 S.C.R. 640. There is nothing in ss. 143 and 144 which is incompatible with the right to counsel, nor do their operating requirements preclude such a right. Therefore, the violation of appellant's s. 10(b) rights prior to the search renders the search unconstitutional given the complete compatibility of the authorizing statutory search provisions with the right to retain and instruct counsel without delay which is guaranteed in the Constitution. An unconstitutional search cannot be a reasonable one.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-9", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 9", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although the unconstitutionality of the search renders the search per se unreasonable, the manner in which the search was conducted in this case was also unreasonable in light of the values and purposes protected by s. 8 of the Charter . It is unreasonable for a detained person to be simply directed to a sign on the wall of a search room setting out the legal provisions which authorize the search of his person. It is therefore not surprising that there is no indication that the appellant even read ss. 143 and 144 of the Customs Act, let alone exercised the legal options and rights conferred in those provisions. A person who is detained and about to be searched can hardly be expected to be his own lawyer. The right to counsel is the citizen's guarantee that his other rights will be respected. It prevents him from being overborne by the greater power of the state.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-10", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 10", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Per McIntyre and L'Heureux‑Dubé JJ.: Appellant was not detained within the meaning of s. 10( b ) of the Charter when she was subjected to a strip search at customs pursuant to s. 143 of the Customs Act. The definition of detention in R. v. Therens, [1985] 1 S.C.R. 613, does not go as far as to cover a search by a customs officer who carries out the routine procedures in order to control the illegal importation of goods and substances across the border. Persons entering Canada, whether or not they are citizens, are placed in a unique legal situation at the point at which they enter the country. They expect to submit to a certain degree of inspection of their baggage, and in some cases, their person. Their situation is distinguishable from one where an individual is stopped or detained in the course of his activities within Canada. It is incidents of this latter nature to which the definition in Therens was meant to apply.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-11", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 11", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The purpose of s. 10( b ) of the Charter gives also a clear indication that the provision does not apply to a border search. The purpose of the right to counsel is to ensure that the individual is treated fairly in the criminal process and, in particular, to prevent the individual from incriminating himself. In a border search the issue is not one of self‑incrimination. A search at the border is part of the process of entering the country and is not part of the criminal process. The right to counsel will arise only where a searched person is placed under custody as part of the criminal process. This does not mean, however, that no right to counsel can ever arise in searches which occur at ports of entry. Where the purpose of the detention, interrogation, or search arises in criminal proceedings, as distinct from those concerning entry into the country, the Charter protection against unreasonable search and seizure and the right to counsel will apply.\n\nFinally, considering this unique situation and the state interest in preventing the entry of undesirable persons or goods, customs searches pursuant to ss. 143 and 144 of the Customs Act are reasonable and do not therefore infringe s. 8 of the Charter . The search itself was conducted in a reasonable manner. Appellant, who was not detained within the meaning of s. 10( b ) of the Charter , was sufficiently informed of her right to appeal the search to a higher customs authority when she was shown the text of ss. 143 and 144 of the Customs Act.\n\nCases Cited\n\nBy Dickson C.J.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-12", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 12", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Applied: R. v. Therens, [1985] 1 S.C.R. 613; R. v. Collins, [1987] 1 S.C.R. 265; distinguished: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; referred to: Chromiak v. The Queen, [1980] 1 S.C.R. 471; United States v. Ramsey, 431 U.S. 606 (1977); Carroll v. United States, 267 U.S. 132 (1925); United States v. Lincoln, 494 F.2d 833 (1974); United States v. Chavarria, 493 F.2d 935 (1974); United States v. King, 485 F.2d 353 (1973); United States v. Beck, 483 F.2d 203 (1973); R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Rodenbush and Rodenbush (1985), 21 C.C.C. (3d) 423; R. v. Jacoy, [1988] 2 S.C.R. 548, aff'g (1986), 30 C.C.C. (3d) 9 (B.C.C.A.), rev'g B.C. Prov. Ct. (Vancouver), October 25, 1985; R. v. Gladstone (1985), 22 C.C.C. (3d) 151; R. v. Jordan (1984), 11 C.C.C. (3d) 565; R. v. Jagodic and Vajagic (1985), 19 C.C.C. (3d) 305; Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961); R. v. Wray, [1971] S.C.R. 272; United States v. Guadalupe‑Garza, 421 F.2d 876 (1970); R. v. Dumas (1985), 23 C.C.C. (3d) 366; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301.\n\nBy Wilson J.\n\nReferred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Thomsen, [1988] 1 S.C.R. 640.\n\nBy L'Heureux‑Dubé J.\n\nDistinguished: R. v. Therens, [1985] 1 S.C.R. 613; approved: United States v. Ramsey, 431 U.S. 606 (1977); Carroll v. United States, 267 U.S. 132 (1925); referred to: Clarkson v. The Queen, [1986] 1 S.C.R. 383.\n\nStatutes and Regulations Cited\n\nAct respecting the Customs, S.C. 1867, c. 6.\n\nCanadian Charter of Rights and Freedoms , ss. 1 , 8 , 10( b ) , 24(2) .\n\nConstitution Act, 1982 , s. 52 .\n\nCriminal Code, R.S.C. 1970, c. C‑34, s. 618(2)(a) [rep. & subs. 1974‑75‑76, c. 105, s. 18(2)].", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-13", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 13", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144, 203.\n\nCustoms Act, S.C. 1986, c. 1, s. 98.\n\nNarcotic Control Act, R.S.C. 1970, c. N‑1, ss. 4(2), 5(1).\n\nAuthors Cited\n\nLaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, 2nd ed., vol. 3. St. Paul, Minn.: West Publishing Co., 1987.\n\nMichalyshyn, Peter B. \"The Charter Right to Counsel: Beyond Miranda\" (1987), 25 Alta. L. Rev. 190.\n\nAPPEAL from a judgment of the Ontario Court of Appeal (1984), 45 O.R. (2d) 609, 3 O.A.C. 1, 7 D.L.R. (4th) 719, 11 C.C.C. (3d) 193, 7 C.E.R. 159, setting aside appellant's acquittal on charges of importing narcotics and possession of narcotics for the purpose of trafficking (1983), 5 C.E.R. 396 and ordering a new trial. Appeal dismissed.\n\nC. Jane Arnup, for the appellant.\n\nJ. E. Thompson et J. W. Leising, for the respondent.\n\nCasey Hill, for the intervener.\n\nThe judgment of Dickson C.J. and Beetz, Lamer and La Forest JJ. was delivered by", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-14", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 14", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "1. The Chief Justice‑‑The appellant, Laura Mary Simmons, was indicted on two drug counts: (i) that she unlawfully \"did, at the City of Mississauga, in the Judicial District of Peel and Province of Ontario, on or about the 14th day of November in the year 1982, import into Canada a Narcotic, to wit: Cannabis sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis resin\", contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, and (ii) that she unlawfully did, at the same place and date, \"have in her possession a Narcotic for the purpose of trafficking, to wit: Cannabis sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis resin\", contrary to s. 4(2) of the Narcotic Control Act. Drugs, contained in a body pack taped to her waist, were found on the person of the appellant by customs officers at Toronto International Airport. The trial judge ruled the evidence of the drugs, seized as a result of a body search, inadmissible, and found the appellant not guilty on both counts in the indictment.\n\n2. Appellant's acquittal at trial was reversed on appeal and she has now appealed as of right to this Court, pursuant to s. 618(2)(a) of the Criminal Code, R.S.C. 1970, c. C‑34.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-15", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 15", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "3. The principal issues in the case are whether the appellant's rights under ss. 10( b ) and 8 of the Canadian Charter of Rights and Freedoms were violated when she was subjected to a strip search at customs and, if so, whether evidence of narcotics obtained as a result of the search should be excluded under s. 24(2) of the Charter . These raise the following subsidiary issues: whether a strip search by customs officers constitutes a \"detention\" and thus gives rise to the right to retain and instruct counsel and to be informed of that right under s. 10( b ) of the Charter ; whether the personal search provisions (ss. 143 and 144) in the former Customs Act, R.S.C. 1970, c. C‑40, are inconsistent with a person's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter , and thereby, by reason of s. 52 of the Constitution Act, 1982 , of no force or effect to the extent of the inconsistency; and whether the violations, if any, of ss. 10(b) or 8 may be justified under s. 1 of the Charter .\n\n4. The statutory provisions to which reference is made in the foregoing paragraph read as follows:\n\nCanadian Charter of Rights and Freedoms\n\n1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.\n\n8. Everyone has the right to be secure against unreasonable search or seizure.\n\n10. Everyone has the right on arrest or detention\n\n...\n\n(b) to retain and instruct counsel without delay and to be informed of that right;", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-16", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 16", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.\n\n(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.\n\nConstitution Act, 1982\n\n52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.\n\nCustoms Act\n\n143. Any officer, or person by him authorized there‑ unto, may search any person on board any vessel or boat within any port in Canada, or on or in any vessel, boat or vehicle entering Canada by land or inland navigation, or any person who has landed or got out of such vessel, boat or vehicle, or who has come into Canada from a foreign country in any manner or way, if the officer or person so searching has reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his person.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-17", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 17", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "144. (1) Before any person can be searched, the person may require the officer to take him before a police magistrate or justice of the peace, or before the collector or chief officer at the port or place, who shall, if he sees no reasonable cause for search, discharge the person, but, if otherwise, he shall direct the person to be searched; but where the person is a female she shall be searched by a female, and any such magistrate, justice of the peace or collector may, if there is no female appointed for such purpose, employ and authorize a suitable female person to act in any particular case or cases.\n\nIf one traces ss. 143 and 144 as far back as Confederation one will find that the sections contained in the 1867 Customs Act (S.C. 1867, c. 6) are virtually the same as those in the 1970 Act. Both permit a search of the person when the customs officer \"has reasonable cause to suppose that the person searched\" has \"prohibited goods, secreted about the person\". In addition, both versions stipulate that a person may request to be brought before a justice of the peace, or before the collector or chief officer of the customs office for a second authorization before the search is performed. The 1970 provision adds a police magistrate to the list of officials who can give a second authorization.\n\n5. Sections 143 and 144 have since been repealed and replaced by s. 98 of the Customs Act, S.C. 1986, c. 1. That section changes the standard of suspicion to \"reasonable grounds\" and narrows the number of persons, before whom a person about to be searched may be brought, to the senior officer at the place the search is to take place.\n\nFacts", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-18", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 18", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "6. The appellant arrived at the Toronto International Airport on the evening of November 14, 1982 on Air Jamaica flight 071 from Jamaica. She proceeded to the primary customs inspection and was asked a series of standard questions by the customs officer. The appellant identified herself as \"Maureen Claudia\" Simmons, stated that she lived in Montréal, and declared a total of $25 as the value of all goods she was bringing into the country. Finding the appellant to be \"overly nervous and jittery and a bit agitated\", the primary customs officer concluded she should be referred for a secondary inspection and gave the appellant an inspection card bearing the number \"86\". The number 8 represented the code indicating the trav­eller should be referred to secondary inspection. The 6 indicated that the primary inspector had doubts about the goods the passenger had declared.\n\n7. The secondary customs officer, Inspector Kathy Badham, asked the appellant for identification and conducted a search of the appellant's luggage. The appellant produced a photocopy of her baptismal certificate and stated that the rest of her identification had been stolen in Montréal. The search of the appellant's luggage did not reveal contraband. At some point during the secondary inspection, the appellant indicated that she was an unemployed, freelance commercial artist. The secondary inspector was suspicious of the appellant and requested permission from the Customs Superintendent to search the appellant's person. The suspicions were based on the primary inspector's doubts about the appellant, dissatisfaction with the appellant's identification, and the secondary inspector's observation that the appellant, although otherwise very slender, was slightly heavy and bulging in the area of her upper abdomen.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-19", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 19", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "8. The secondary inspector informed the appellant that she was going to be searched as permitted by the Customs Act and together with another female customs officer showed the appellant into a search room located behind the secondary search area. She asked the appellant if she was hiding anything and the appellant responded that she was not. The officer then drew the appellant's attention to a sign on the wall of the search room which set out ss. 143 and 144 of the Customs Act quoted earlier. These sections, the inspector advised the appellant, provided the authority for conducting personal searches. There is no indication that the appellant read the provisions.\n\n9. The secondary inspector told the appellant to undress. The appellant complied, removing her jacket, dress, and blouse. The inspector thought she saw something concealed underneath the appellant's girdle and again asked the appellant if she was hiding anything. Again the appellant responded that she was not. The appellant then removed her girdle, revealing white adhesive bandages around her midriff. When questioned about the bandages, the appellant responded that they were for her back. The inspector asked the appellant to remove the bandages. The appellant replied \"is this really necessary?\" then complied with the request. Removal of the bandages revealed six plastic bags containing 1.98 kilograms of cannabis resin, otherwise known as hashish oil, with a street value of $22,000. The appellant was then arrested for importing narcotics and was informed of her right to retain and instruct counsel. She forthwith telephoned counsel.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-20", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 20", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "10. As Howland C.J.O. noted in the Court of Appeal, by agreement of counsel at trial, evidence was furnished that between April 1, 1982 and March 31, 1983, there were 442 drug seizures at the Toronto International Airport, of which 80 per cent were cannabis seizures from flights originating in Jamaica.\n\nII\n\nThe Trial\n\n11. At trial before Kent Co. Ct. J., the appellant argued that because of the small amount of narcotics involved and the surrounding circumstances of the offence, prosecuting the appellant for importing narcotics and for trafficking rather than lesser charges constituted unfair treatment, violating appellant's rights under ss. 7 and 12 of the Charter . The appellant also alleged that searches made pursuant to s. 143 of the Customs Act infringed s. 8 of the Charter , that there were no grounds under s. 143 for searching the appellant, that the appellant was arbitrarily detained in violation of s. 9 of the Charter , and that because the appellant had not been informed of her right to retain and instruct counsel before she was searched, s. 10( b ) of the Charter had been infringed.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-21", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 21", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "12. In a judgment rendered on May 13, 1983, and reported at (1983), 5 C.E.R. 396, Kent Co. Ct. J. found the appellant not guilty of the charges. The judgment was based on the s. 10(b) argument only. It will be recalled that s. 10(b) of the Char­ter, quoted earlier, assures everyone the right \"on arrest or detention\" to retain and instruct counsel without delay, and to be informed of that right. The judge held that the appellant had been detained from the moment she was taken into the search room for a body search, as she was then subject to compulsory restraint. In coming to this conclusion he emphasized the testimony of the inspector who conducted the search who stated that in her view the appellant had been detained in her custody and was not free to leave the search room. The appellant, the judge felt, should therefore have been informed of her right to retain and instruct counsel before the search was conducted and, as she had not been so informed, her right under s. 10( b ) of the Charter had been violated.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-22", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 22", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "13. The trial judge excluded the evidence under s. 24(2) of the Charter , holding that in all the circumstances its admission into the proceedings would bring the administration of justice into disrepute. The judge pointed out that if the appellant had been advised of her Charter rights before the search, she might well have phoned her lawyer who could have advised her to request that she be brought before a justice of the peace, police magistrate or chief customs officer pursuant to s. 144. In the opinion of the judge this took on particular significance in this case because of the limited evidence in support of the \"reasonable cause\" for a search as required by s. 143 of the Customs Act. He concluded therefore that the discovery of the illicit drugs was not inevitable and might not have taken place if the appellant's s. 10(b) rights had not been infringed. He found the appellant not guilty as charged.\n\nThe Ontario Court of Appeal", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-23", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 23", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "14. A five member panel of the Ontario Court of Appeal reversed Kent Co. Ct. J.'s decision, Tarnopolsky J.A. dissenting in part: (1984), 7 D.L.R. (4th) 719. Howland C.J.O. for the majority held that the appellant had not been detained when she was subjected to a strip search at the border. In his view, the word \"detention\" in s. 10 of the Charter was to be accorded the meaning given to that word in s. 2(c) of the Canadian Bill of Rights, R.S.C. 1970, App. III, by this Court in Chromiak v. The Queen, [1980] 1 S.C.R. 471. It should be noted that the Court of Appeal did not have the benefit of this Court's decision in R. v. Therens, [1985] 1 S.C.R. 613. Howland C.J.O. also considered the American jurisprudence on border searches. He noted that American courts have considered border searches to be an exception to the protection against search and seizure embodied in the Fourth Amendment of the Constitution of the United States. Howland C.J.O. shared the view that customs searches constitute a distinct type of state involvement with the individual and for that reason should be regarded differently. He stated at pp. 740‑41:", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-24", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 24", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my opinion, border searches for contraband fall into a very special category. If a person reasonably arouses suspicion by giving the appearance of concealing something on his or her person, then he or she must expect to be asked to remove sufficient clothing to confirm or dispel this suspicion. There is nothing demeaning about such a request. The respondent was only requested to remove such of her clothing as was necessary to disclose that she was concealing illegal drugs. She was not touched in any way by Inspector Badham. The very large number of illegal drug seizures at the Toronto International Airport arising from Jamaica flights is indicative of the magnitude of the problem.\n\nIt would be wrong to conclude that the brief restraint involved in the ordinary progressive border search for contraband conducted by a customs officer pursuant to ss. 143 and 144 of the Customs Act constitutes a detention within the meaning of s. 10 of the Charter .\n\nHowland C.J.O. also noted that s. 143 of the Customs Act formed part of comprehensive border regulation to which both citizens and non‑citizens alike were subject when seeking to enter Canada from abroad.\n\n15. Howland C.J.O. found no merit to the appellant's argument that ss. 143 and 144 of the Customs Act violated s. 8 of the Charter . In his view, a body search conducted under ss. 143 and 144 should not be considered to be unreasonable within s. 8 of the Charter . He stated at p. 746:\n\nI do not think it is unreasonable for sovereign nations, such as Canada, to provide for a temporary restraint on persons entering the country, and if necessary, for a search of their persons to see if they are bringing contraband into Canada.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-25", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 25", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "16. Despite his finding that the appellant was not detained and therefore that her right to counsel under s. 10( b ) of the Charter had not been infringed, Howland C.J.O. went on to consider the appellant's arguments with respect to s. 24(2). In considering the test for whether the admission of evidence would bring the administration of justice into disrepute, he enunciated the following factors: the nature of the illegality, the manner in which the evidence was obtained, the good faith of the persons who obtained the evidence, whether the accused's rights under the Charter were knowingly infringed, and the seriousness of the charge. In this case, Howland C.J.O. was of the view that all the factors militated towards admitting the evidence. The search occurred at the border and was specifically authorized by an Act of Parliament. It was not unreasonable and did not involve any unnecessary invasion of privacy. The customs officers acted in good faith and fully in accordance with the law as stated in the Customs Act. The seizure of drugs was sizable and the charges faced by the accused serious. Accordingly, the admission of the evidence would in no way shock the community. On the contrary, exclusion of the evidence would bring the administration of justice into disrepute.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-26", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 26", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "17. Tarnopolsky J.A. agreed that the evidence in this case should not have been excluded by the trial judge but dissented on the question of detention. In his view, Chromiak, supra, dealt only with the question of roadside breath tests and did not determine whether a person who is required to submit to an examination by a government agency is detained. He also distinguished strip searches at customs from roadside breath testing on two grounds. In Chromiak the accused was free to leave the scene after refusing to take a breath test; the appellant in this case was not free to refuse to be subjected to a body search. Secondly, the search involved in this case was a far more serious intrusion into a person's dignity and privacy than the breath test contemplated in Chromiak. The highly intrusive nature of the search and the fact that it was performed under conditions of restraint compelled Tarnopolsky J.A. to the conclusion that the appellant was detained when she was strip searched and accordingly, her right to counsel had been infringed.\n\nIII\n\nInterventions and Constitutional Questions\n\n18. The Attorneys General for Ontario and Alberta filed notice of intention to intervene in the appeal to this Court. The Attorney General for Alberta later withdrew. The Attorney General for Ontario filed a factum in support of the respondent Crown.\n\n19. Prior to hearing the appeal the following constitutional questions were stated:", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-27", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 27", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "1. Is a person who is required by a customs officer upon entering Canada to submit to a search of his or her person for contraband which is suspected of being secreted about his or her person, such search being pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms , thereby requiring that such person be informed of the right to retain and instruct counsel without delay?\n\n2. Are sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, inconsistent with a person's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms , and thereby of no force and effect to the extent of that inconsistency?\n\n3. If a failure to inform a person who is searched pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, of his or her right to retain and instruct counsel without delay is in violation of s. 10 of the Canadian Charter of Rights and Freedoms , is such a violation justified by s. 1 of the Canadian Charter of Rights and Freedoms ?\n\n4. If sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, are found to be inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms , are these sections justified by s. 1 of the Canadian Charter of Rights and Freedoms ?\n\nIV\n\nCustoms Searches", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-28", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 28", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "20. In this Court counsel for the appellant advanced two main arguments. It was submitted that the appellant was \"detained\" when she was required to undergo a body search and thus her right to retain and instruct counsel and to be informed of that right under s. 10(b) was infringed. Second, counsel contended that ss. 143 and 144 of the Customs Act were inconsistent with the right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter . It was submitted that neither violation could be saved by s. 1. On the basis of these violations, counsel for the appellant contended that admission of the narcotics into evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter .\n\n21. Crown counsel took the position that the appellant had not been detained and that ss. 143 and 144 of the Customs Act were not inconsistent with s. 8 of the Charter . Both arguments were largely based on characterizing border searches as a special case. Accordingly, the respondent argued that the brief restraint involved in the ordinary progressive border search conducted pursuant to the Customs Act did not constitute detention within the meaning of s. 10 of the Charter . Similarly, though conceding that the search provisions in ss. 143 and 144 did not conform to the criteria established by this Court in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the Crown contended that Hunter v. Southam Inc. was inapplicable to the border search situation.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-29", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 29", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "22. Before turning to the specific Charter issues, it is useful to consider briefly the significance of the border crossing situation. The respondent stressed that customs searches should be treated differently because of the important national interest that border regulation serves. In the respondent's submission, strip searches such as the one to which the appellant was subjected, are reasonable in the circumstances of monitoring the goods that enter the country. The delay travellers experience when required to undergo a personal search is incidental to the reasonable progression of increasingly more intrusive border searches and for that reason does not constitute a detention within the meaning of s. 10 of the Charter .\n\n23. The American courts have long recognized border situations as an exception to the general protection against unreasonable search and seizure of the Fourth Amendment. The First Congress of the United States passed a customs statute in 1789 exempting border searches from the requirement of probable cause (LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2nd ed. 1987), vol. 3, at p. 710). This was the same Congress which two months later proposed the American Bill of Rights including the Fourth Amendment. Border regulation legislation similar to this first statute has existed in the United States since the original enactment.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-30", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 30", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "24. The United States Supreme Court did not have cause to pronounce directly upon the constitutional validity of the search provisions in American customs legislation until 1977 in United States v. Ramsey, 431 U.S. 606 (1977), a case concerning the search of international mail. Lower courts had, however, consistently upheld the validity of customs provisions which permitted border searches to be conducted without securing a warrant and without establishing probable cause (LaFave, op. cit., at p. 712; see United States v. Lincoln, 494 F.2d 833 (9th Cir. 1974); United States v. Chavarria, 493 F.2d 935 (5th Cir. 1974); United States v. King, 485 F.2d 353 (10th Cir. 1973); United States v. Beck, 483 F.2d 203 (3d Cir. 1973)). Dicta in Supreme Court decisions drew a distinction between searches within national boundaries, which were generally subject to the warrant and probable cause requirements of the Fourth Amendment, and those occurring at the border which required neither. In Carroll v. United States, 267 U.S. 132 (1925), a case heard during the era of prohibition, the Supreme Court succinctly stated the essential difference between searches of persons presenting themselves for entry at the border and persons already in the country (at pp. 153‑54):", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-31", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 31", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country . . . have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. [Emphasis added.]\n\nCarroll clearly indicated that the national interest in preventing the entry of contraband into the country made searches which would be unreasonable in other circumstances reasonable at the border.\n\n25. In Ramsey, supra, the Supreme Court was finally confronted with a Fourth Amendment challenge to customs search provisions. Rehnquist J., for the Court, commented at some length on the special nature of customs searches at pp. 616‑17:", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-32", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 32", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials \"full power and authority\" to enter and search \"any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . .\". The acknowledgment of plenary customs power was differentiated from the more limited power to enter and search ``any particular dwelling‑house, store, building or other place . . .\" where a warrant upon \"cause to suspect\" was required. The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest.\n\nAfter reviewing other United States Supreme Court cases in which border situations had been mentioned, Rehnquist J. came to the following conclusion on the validity of border searches at p. 619:", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-33", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 33", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be \"reasonable\" by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless \"reasonable\" has a history as old as the Fourth Amendment itself. We affirm it now.\n\n26. While we must, of course, be wary of adopting American interpretations where they do not accord with the interpretive framework of our Constitution, the American courts have the benefit of two hundred years of experience in constitutional interpretation. This wealth of experience may offer guidance to the judiciary in this country.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-34", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 34", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "27. It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X‑rays, to emetics, and to other highly invasive means.\n\n28. I wish to make it clear that each of the different types of search raises different issues. We are here concerned with searches of the second type and what I have to say relates only to that type of search. Searches of the third or bodily cavity type may raise entirely different constitutional issues for it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection. I turn now to a consideration of the appellant's specific Charter claims.\n\nSection 10 of the Charter", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-35", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 35", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "29. The first issue to be determined in this appeal is whether the appellant was detained within the meaning of s. 10 of the Charter when she was required to undergo a strip search at customs. As noted, s. 10(b) provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. If the appellant was detained, her right to retain and instruct counsel was violated since she was not informed of that right until the narcotics were found.\n\n30. In R. v. Therens, supra, this Court considered the meaning of detention in the context of a breathalyzer demand made by a police officer under the former s. 235 of the Criminal Code . Le Dain J. made the following comments, in which all members of the Court concurred at pp. 641‑42:\n\nThe purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10‑‑arrest and detention‑‑are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word \"detention\", s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-36", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 36", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.\n\nFrom the foregoing passage it is clear that the right to counsel becomes available upon something less than formal arrest. This Court has recently affirmed this definition of detention in R. v. Hufsky, [1988] 1 S.C.R. 621, and R. v. Thomsen, [1988] 1 S.C.R. 640.\n\n31. Counsel for the Crown argued before this Court that the definition of detention in Therens was inappropriate in the circumstances of border searches. It was the Crown's submission that the liberty of travellers is subject to physical constraints that may have significant legal consequences from the moment travellers arrive at the border requesting entry into Canada; detention should not be interpreted to include the ordinary, increasingly more intrusive course of border searches for contraband. Strip searches fall within this routine procedure. Detention within the meaning of s. 10 of the Charter would not be reached until an agent of the state imposed a restraint on a person's liberty beyond the normal restraints involved in ensuring that the person and his or her goods are lawfully admissible. In Crown counsel's submission, this level of restraint was not reached in this case.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-37", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 37", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "32. Only a few lower courts have considered the issue of detention in the context of a search at customs. In R. v. Rodenbush and Rodenbush (1985), 21 C.C.C. (3d) 423 (B.C.C.A.), the British Columbia Court of Appeal held on the authority of Therens, supra, that persons required to wait in an inspection room while their luggage was inspected in another room were detained. In Rodenbush the accused, a married couple, had been under police surveillance while in Seattle. Before the couple arrived at the Canadian border, United States drug enforcement personnel warned Canadian customs officials of their impending arrival. When they reached customs, the accused declared purchases of approximately $70 worth of clothing and were referred to the customs building to pay duty. The officer to whom the accused made the payment requested to inspect their car. Two suitcases which the accused had been given in Seattle while under surveillance were in the back of the car. The officer removed and opened the suitcases and noticed deep gouges on some of the rivets inside one of them. The officer indicated that he wished to inspect the suitcases further and took them to an inspection room where he left them with other inspectors. The officer then led the accused to a second inspection room where he waited with them for the results of the luggage inspection. The search of the suitcases yielded 4.22 kilograms of cocaine with a purity of 76 per cent by weight and a street value of more than $1.6 million.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-38", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 38", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "33. While awaiting the outcome of the luggage search, the inspector carried on a conversation with the accused. When the cocaine was discovered, a customs superintendent notified the inspector of the find and asked him to question the accused about the suitcases. The accused made a false statement concerning where they had acquired the suitcases. The inspector then informed them of the discovery of cocaine and placed them under arrest. The British Columbia Court of Appeal held that the accused were detained within the meaning of s. 10 of the Char­ter when they were asked by the customs officer to enter a separate interview room.\n\n34. The British Columbia Court of Appeal has considered the question of detention in the customs setting on two other occasions. In R. v. Jacoy (judgment being rendered this date), the accused was being monitored by the police for involvement in drug trafficking. As he proceeded north from Seattle towards the Canadian border, the R.C.M.P. contacted customs and suggested they flag the accused for a routine search. The accused was not to know customs had any suspicions about him. Cronin Prov. Ct. J. (reasons unreported) held that Jacoy was detained from the moment he was stopped at the border. He excluded the narcotics under s. 24(2) of the Charter on the basis of the s. 10(b) violation and acquitted the accused. The case was reversed on appeal to the British Columbia Court of Appeal (reported at (1986), 30 C.C.C. (3d) 9) on other grounds and was argued before this Court on the same day as the instant appeal. In R. v. Gladstone (1985), 22 C.C.C. (3d) 151 (B.C.C.A.), the British Columbia Court of Appeal assumed without deciding that an accused who had been subject to a strip search had been detained within the meaning of s. 10 of the Charter .", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-39", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 39", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "35. In my view, the appellant was detained when she was required to undergo a strip search pursuant to s. 143 of the Customs Act. This result is consistent with both the meaning given to detention in common parlance and with the definition laid out by Le Dain J. in Therens, supra. When the customs officer informed the appellant that she was going to be searched, the appellant could not have refused and continued on her way. The customs officer testified that had the appellant attempted to leave, she would have notified the R.C.M.P. In addition, s. 203 of the Customs Act makes it an offence to obstruct or to offer resistance to any personal search authorized by the Customs Act. At the time of the search the appellant was quite clearly subject to external restraint. The customs officer had assumed control over her movements by a demand which had significant legal consequences.\n\n36. I am not persuaded by the argument made before us by the Crown that if a strip search is considered a detention, all travellers passing through customs must be seen to be detained and therefore, to have a right to counsel. In Therens, supra, Le Dain J. stated that not all communication with police officers and other state authorities will amount to detention within the meaning of s. 10( b ) of the Charter . This statement is equally valid with respect to the customs situation. I have little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basis do not constitute detention for the purposes of s. 10. There is no doubt, however, that when a person is taken out of the normal course and forced to submit to a strip search that person is detained within the meaning of s. 10.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-40", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 40", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "37. Counsel for the Crown argued that even if the appellant had been detained, not all detentions require the provision of all the rights enumerated in s. 10 of the Charter ; in this case, the detention does not give rise to a right to counsel since no purpose would be served by allowing a person who is going to be searched the right to retain and instruct counsel. I do not agree with this submission. If the appellant had been given the right to consult counsel, counsel could have informed her of her right under s. 144 of the Customs Act to request higher authorization for the search. It is idle to speculate as to what might have happened. In my view it is not correct to argue that counsel would perform no useful function in this situation.\n\n38. I am therefore of the view that the appellant was detained when she entered the search room and that she should have been informed of her right to retain and instruct counsel at that time.\n\nVI\n\nSection 8 of the Charter\n\n39. The second issue raised in this appeal is the constitutional validity of the former ss. 143 and 144 of the Customs Act. It should be noted at the outset that the appellant does not allege that the search to which she was subjected failed to satisfy the terms of ss. 143 and 144 of the Customs Act. Her argument is rather that the personal search provisions of the Customs Act do not conform to the Charter . Counsel for the appellant argued that these sections infringe the right to be secure against unreasonable search and seizure enshrined in s. 8 of the Charter because they do not conform to the criteria established by this Court in Hunter v. Southam Inc. The Crown conceded the sections do not meet the Hunter v. Southam Inc. standards but contended that these standards are inapplicable to border situations.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-41", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 41", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "40. In Hunter v. Southam Inc., the Court considered the validity of certain sections of the Combines Investigation Act, R.S.C. 1970, c. C‑23, in the context of s. 8 of the Charter . Under the search provisions of that Act, combines investigation officers could obtain authorization to search any premises on which the Director of Investigation believed evidence relevant to an inquiry under the Combines Investigation Act was to be found. This Court found the provisions infringed the right to be secure against unreasonable search and seizure. The Court recognized that the purpose of s. 8 was to act as a limitation on the pre‑existing search powers of government. The Charter does not protect the individual from all searches, but only from those deemed to be unreasonable. The central question in that appeal was how to assess whether the search provisions in the Combines Investigation Act were reasonable. This Court now faces the same issue with reference to the Customs Act.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-42", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 42", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "41. In Hunter, this Court established three criteria to which reasonable searches must conform. First, where possible, the search must have been approved by prior authorization. This ensures that unjustified searches will be prevented before they occur. The Court acknowledged that it might not be reasonable in all circumstances to insist on prior authorization but held that where it was feasible, prior authorization was a pre‑condition of a reasonable search. Second, the person authorizing the search need not be a judge but must act in a judicial manner. That person must be able to assess in a neutral and impartial fashion whether on the evidence available a search is appropriate. Finally, there must be reasonable and probable grounds, established upon oath to believe that an offence has been committed and that evidence of this is to be found at a particular place. The Court recognized that this standard is subject to change \"[w]here the state's interest is not simply law enforcement as, for instance, where state security is involved, or where the individual's interest is not simply [an] expectation of privacy as, for instance, when the search threatens . . . bodily integrity\" (p. 168).", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-43", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 43", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "42. In this case it is clear that the Hunter v. Southam Inc. standards are not met. Sections 143 and 144 do not mandate prior authorization of personal searches by a person acting in a judicial capacity. The standard upon which a search may be conducted under the provisions, reasonable cause to suppose, also falls short of the reasonable and probable grounds established on oath required by Hunter. There is no warrant requirement. The question this Court must address is whether strip searches of persons seeking to enter this country are reasonable within the meaning of s. 8 of the Charter even if they do not satisfy the criteria established in Hunter v. Southam Inc.\n\n43. The Crown urged this Court to accept the submission that customs represents an unusual situation and therefore that the requirements of Hunter v. Southam Inc. should not be applied to border searches. The Ontario Court of Appeal accepted this argument. That court held that it was not unreasonable for sovereign nations to restrain temporarily persons entering the country, nor was it unreasonable to search their persons to determine if they were bringing contraband into the country. The British Columbia Court of Appeal also accepted this position in R. v. Jordan (1984), 11 C.C.C. (3d) 565 (B.C.C.A.) In that case the accused was subjected to a strip search upon his return from Asia based on an informant's tip that he would be transporting illicit drugs. The court rejected the accused's s. 8 challenge to the validity of ss. 143 and 144 holding that the standard of reasonableness is much lower in respect of border searches. It expressly adopted the American approach to the reasonableness of customs searches.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-44", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 44", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "44. The Nova Scotia Supreme Court reached the opposite result in R. v. Jagodic and Vajagic (1985), 19 C.C.C. (3d) 305 (N.S.S.C.T.D.) That case concerned the constitutionality of s. 133 of the former Customs Act which permitted any collector or justice of the peace, upon information, to open and examine any package suspected to contain prohibited property or smuggled goods brought into the country. Acting on information from the United States, customs officers and the R.C.M.P. had searched a car being imported from Germany by Jagodic when it arrived at East Passage, Nova Scotia. Seven bags of cocaine were discovered hidden behind the door panels of the car. MacIntosh J. held that Hunter v. Southam Inc. established a minimum standard for all searches consistent with s. 8 of the Charter and accordingly found s. 133 in violation of that section. The judge, however, found the search of the car valid even though it had been conducted without a warrant since it was not feasible to obtain a warrant in the circumstances. Although his conclusion that the rights of the accused were not violated made a discussion of admissibility unnecessary, MacIntosh J. went on to consider the question of admissibility under s. 24(2) of the Charter . He was of the view that admission of the evidence would not bring the administration of justice into disrepute.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-45", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 45", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "45. The argument that customs searches need not comply with the standard enunciated in Hunter v. Southam Inc. has as its basis the proposition that reasonableness depends on the circumstances under which a particular search is conducted and that searches which ordinarily would not be reasonable in other circumstances are reasonable at customs. According to this argument, reasonableness cannot be determined solely by considering the conduct leading up to the search, the performance of the actual search itself, and the degree of intrusion involved in the search. These factors must be assessed in light of the context in which the search is performed for an accurate appraisal of reasonableness.\n\n46. The Crown finds support for a contextual approach to determining reasonableness under s. 8 of the Charter in Hunter v. Southam Inc. In Hunter, the Court noted that although the common law protections against government searches were rooted in the right to enjoyment of property and were related to the law of trespass, s. 8 was designed to protect a broader interest of personal privacy. The Court noted that the Charter did not, however, grant unqualified protection of individual privacy (at pp. 159‑60):", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-46", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 46", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from \"unreasonable\" search and seizure, or positively as an entitlement to a \"reasonable\" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. [Italics added.]\n\nIn determining the reasonableness of a search, the Crown argued, it was essential to examine the expectation of privacy that would be reasonable given the peculiarities of the situation in which the search occurred. At customs, a different standard of reasonableness would be warranted for two reasons: persons seeking to enter a country have a lower expectation of privacy than they would in most other situations and, states have an important interest in preventing the entry of undesirable persons and goods which justifies more intrusive procedures, particularly where the goods are prohibited narcotics not indigenous to the country.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-47", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 47", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "47. It is true that a determination of reasonableness must depend to some degree on the circumstances in which a search is performed. In my view, however, it would be incorrect to place overwhelming emphasis on the surrounding circumstances when assessing reasonableness under s. 8. Regardless of the constraints inherent in the circumstances, the safeguards articulated in Hunter v. Southam Inc. should not be lightly rejected. Although Hunter did not purport to set down immutable pre‑ conditions for validity applicable to all searches, the Court arrived at the three minimum prior authorization requirements only after examining the values s. 8 is meant to protect. Foremost among these values is the interest in preventing unjustified searches before they occur. This is a basic value regardless of situational constraints. In light of the importance of preventing unjustified searches, departures from the Hunter v. Southam Inc. standards that will be considered reasonable will be exceedingly rare.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-48", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 48", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "48. The crux of the Crown's argument is that the reasonableness of border searches within the meaning of s. 8 ought to be treated differently from searches occurring in other circumstances. The Crown relied heavily on the rationales articulated in American cases for carving out customs procedures as a general exception to standard search and seizure protections. The dominant theme uniting these cases is that border searches lacking prior authorization and based on a standard lower than probable cause are justified by the national interests of sovereign states in preventing the entry of undesirable persons and prohibited goods, and in protecting tariff revenue. These important state interests, combined with the individual's lowered expectation of privacy at an international border render border searches reasonable under the Fourth Amendment. In my view, the state interests enunciated throughout the American jurisprudence that are deemed to make border searches reasonable, are no different in principle from the state interests which are at stake in a Canadian customs search for illegal narcotics. National self‑protection becomes a compelling component in the calculus.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-49", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 49", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "49. I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process beginning with completion of a declaration of all goods being brought into the country. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-50", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 50", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "50. In my view, routine questioning by customs officers, searches of luggage, frisk or pat searches, and the requirement to remove in private such articles of clothing as will permit investigation of suspicious bodily bulges permitted by the framers of ss. 143 and 144 of the Customs Act, are not unreasonable within the meaning of s. 8. Under the Customs Act searches of the person are not routine but are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body. The decision to search is subject to review at the request of the person to be searched. Though in some senses personal searches may be embarrassing, they are conducted in private search rooms by officers of the same sex. In these conditions, requiring a person to remove pieces of clothing until such time as the presence or absence of concealed goods can be ascertained is not so highly invasive of an individual's bodily integrity to be considered unreasonable under s. 8 of the Charter .\n\n51. I also emphasize that, according to the sections in question: (i) before any person can be searched the officer or person so searching must have reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his or her person and (ii) before any person can be searched, the person may require the officer to take him or her before a police magistrate or justice of the peace or before the collector or chief officer at the port or place who shall, if he or she sees no reasonable cause for search, discharge the person.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-51", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 51", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "52. In light of the existing problems in controlling illicit narcotics trafficking and the important government interest in enforcing our customs laws, and in light of the lower expectation of privacy one has at any border crossing, I am of the opinion that ss. 143 and 144 of the Customs Act are not inconsistent with s. 8 of the Charter .\n\n53. Although I am of the opinion that ss. 143 and 144 of the Customs Act are not unreasonable and therefore do not infringe s. 8 of the Charter , I am not persuaded that the search itself was conducted in a reasonable manner. This point was not argued by counsel and strictly speaking, it is not necessary to address it. I wish, however, to make a few observations on the manner in which the search was conducted.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-52", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 52", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "54. The personal search provisions of the Customs Act are notable in that they provide for a second authorization prior to the performance of a search. The second authorization is not de rigueur in all cases, but becomes mandatory upon request by the person to be searched. The Customs Act places no onus on the officers to inform persons about to be searched of their right to obtain a second opinion. There is, in fact, no onus on the officers to explain the limits of their authority under the Customs Act or with what demands a person detained at the border is required to comply. In the present appeal, the customs officials did not read the text of the personal search provisions to the appellant. The officials simply pointed to a sign on the wall containing the text of ss. 143 and 144. There is no evidence that the appellant read the provisions, much less understood them. There is no indication that the appellant knew of her right to demand a second authorization. What is clear is that the appellant was unsure of the officers' authority. Although she complied with their demands throughout, at one point during the search she asked whether it was really necessary for her to comply.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-53", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 53", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "55. It is clear from the foregoing that the right to counsel has an important impact on the execution of the search. Had the appellant been informed of her right to counsel at the point she was detained, and she availed herself of that right, the appellant would have had the benefit of legal advice. Counsel could have dispelled the appellant's uncertainty surrounding the search procedure by explaining the content of ss. 143 and 144 and assuring the appellant of the officers' right to insist she remove her clothing. Counsel could also have ensured that the statutory standard of reasonable cause to suppose had been satisfied and assured the appellant that there were proper grounds to warrant a search. In my view, the denial of the appellant's right to counsel cannot avoid having an impact on the reasonableness of the subsequent search of the appellant.\n\n56. Although the Court has not been asked to decide the point, I am of the view that the denial of the right to counsel in this case in conjunction with the absence of any explanation to the appellant of her rights under the Customs Act rendered the search unreasonable. The violation of the right to counsel deprived the appellant of her ability to exercise a legal right provided in the Customs Act. A search that might not have been conducted had the appellant had the benefit of legal advice was performed in circumstances in which the appellant was ignorant of her legal position. In my view, the violation of the right to counsel combined with the statutory right of prior authorization rendered the performance of the search unreasonable.\n\nVII\n\nSection 1 of the Charter", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-54", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 54", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "57. Having earlier found that the appellant's right under s. 10( b ) of the Charter to retain and instruct counsel was infringed the next stage would ordinarily be to determine whether this violation may be justified under s. 1. I begin by noting that the Crown made no submissions on the point.\n\n58. The Customs Act contains no express limitation on the right to counsel. There was no argument that a limitation on the right to counsel arises from necessary implication of law. The limit upon the appellant's right to retain and instruct counsel was not a limit imposed by law, but rather by the actions of customs officials. I am therefore of the view that the infringement of the appellant's rights pursuant to s. 10( b ) of the Charter has not been justified under s. 1.\n\n59. I am also of the view that the violation of the appellant's s. 8 rights was not justified under s. 1 of the Charter . The violation of s. 8 occurred because the search was executed in an unreasonable manner. Like the violation of the appellant's right to counsel, the infringement of the appellant's right to be secure against unreasonable search and seizure resulted from the actions of customs officials. It was not a limitation imposed by law.\n\nVIII\n\nSection 24(2) of the Charter", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-55", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 55", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "60. The final question in this appeal is whether the evidence should be excluded under s. 24(2) of the Charter . As Lamer J. noted in R. v. Collins, [1987] 1 S.C.R. 265, the Charter enshrines a position with respect to evidence obtained in violation of Charter rights that falls between two extremes. Section 24(2) rejects the American rule that automatically excludes evidence obtained in violation of the Bill of Rights (see, for example, Weeks v. United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961)). It also shuns the position at common law that all relevant evidence is admissible no matter how it was obtained (see R. v. Wray, [1971] S.C.R. 272). Evidence may be excluded under s. 24(2) if having regard to all the circumstances, it is established that the admission of it would bring the administration of justice into disrepute. The person seeking to exclude the evidence bears the burden of persuading the Court, on a balance of probabilities, that admission of the evidence could bring the administration of justice into disrepute in the eyes of a reasonable person, \"dispassionate and fully apprised of the circumstances of the case\" (Collins, supra, at p. 282).", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-56", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 56", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "61. In Collins, Lamer J. canvassed the factors to be balanced by the Court in determining whether introducing the evidence into the proceedings would bring the administration of justice into disrepute. He organized the factors into three groups based on their effect on the repute of the justice system. The first set of factors are those relevant to the fairness of the trial. Evidence that might in some way affect the fairness of the trial would tend to bring the administration of justice into disrepute and in general should be excluded. Within this category, Lamer J. distinguished between the type of evidence obtained (at pp. 284‑85):", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-57", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 57", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is clear to me that the factors relevant to this determination will include the nature of the evidence obtained as a result of the violation and the nature of the right violated and not so much the manner in which the right was violated. Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair. However, the situation is very different with respect to cases where, after a violation of the Charter , the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination. Such evidence will generally arise in the context of an infringement of the right to counsel. Our decisions in Therens, supra, and Clarkson v. The Queen, [1986] 1 S.C.R. 383, are illustrative of this. The use of self‑incriminating evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and should generally be excluded.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-58", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 58", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "62. The second set of factors concerns the seriousness of the Charter violation as defined by the conduct of the law enforcement authorities. In this category, an assessment of whether the breach was committed in good faith, whether it was one of a merely technical nature or whether it was deliberate and flagrant falls to be considered. Also within this category is the consideration of whether the Charter violation was motivated by circumstances of urgency or from fear of destruction of evidence. Finally, if other investigatory techniques had been available or if the evidence could have been obtained in a manner which would not have infringed the Charter , the violation would tend to be construed as more serious.\n\n63. The third set of factors recognizes the possibility that the administration of justice could be brought into disrepute by excluding evidence despite the fact that it was obtained in a manner that infringed the Charter . The decision to exclude evidence always represents a balance between the interests of truth on one side and the integrity of the judicial system on the other. In some cases the harm to the integrity of the judicial system resulting from excluding the evidence will be so great that exclusion and not admission will bring the administration of justice into disrepute. This would be the case if evidence necessary to substantiate a charge were excluded on the basis of a trivial Charter violation.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-59", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 59", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "64. In this case there were ample \"objective, articulable facts\" (see United States v. Guadalupe‑Garza, 421 F.2d 876 (9th Cir. 1970)) to support the customs officer's suspicion that the appellant was concealing something on her body for the purpose of bringing it into Canada illegally. The appellant was nervous, she had come from a country considered to be an important source of drugs, her means of identification and the story which accompanied it were suspect, and finally, bulging was obvious in the area of her upper abdomen.\n\n65. The evidence obtained as a result of the strip search was real evidence that existed irrespective of the Charter violations. As Belzil J.A. observed in R. v. Dumas (1985), 23 C.C.C. (3d) 366 (Alta. C.A.), at p. 372:\n\nWhat is sought to be excluded here is pre‑existing physical evidence which the appellant was attempting to conceal to prevent its detection and rightful seizure . . . .", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-60", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 60", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Unlike the situation in Therens, supra, the accused here was in no way conscripted against herself. The admission of the evidence in this case, in contrast to Therens, would therefore not tend to affect adversely the fairness of the trial process. The customs officers acted in good faith based on accepted customs procedures. There was nothing deliberate or blatant in the denial of the appellant's rights. There is nothing to indicate that the customs officers treated the appellant in a discourteous fashion. In fact, the evidence reveals that the officers informed the appellant of her right to counsel as soon as they thought it was necessary to do so and gave her the opportunity to exercise that right. This Court held in R. v. Sieben, [1987] 1 S.C.R. 295, and R. v. Hamill, [1987] 1 S.C.R. 301, that constitutional invalidity of a search power does not render evidence inadmis­sible if the officers conducting the search have relied in good faith on the constitutionality of the provision. In this instance the customs officials were acting in accordance with existing statutory requirements. The breaches occurred not long after the Charter came into force and several years before the decision of this Court in Therens on the meaning of detention in s. 10(b). At the time of this search the decision of this Court in Chromiak, supra, stood for the proposition that investigative detentions of this sort were not detentions of the type requiring persons to be advised of their right to counsel.\n\n66. Although the breach of the appellant's s. 10(b) and s. 8 rights were not strictly speaking trivial, in my opinion, for the reasons given, this is the kind of case where the evidence should be admitted. Exclusion of the evidence would tend to bring the administration of justice into disrepute.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-61", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 61", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "67. I would emphasize as well that all five judges of the Ontario Court of Appeal, including Tarnopolsky J.A., were of the view that the admission of the evidence in question would not bring the administration of justice into disrepute.\n\n68. In my view, the trial judge erred in excluding the evidence under s. 24(2). I would therefore dismiss the appeal and send the case back for a new trial. I would answer the constitutional questions in the following manner:\n\n1. Is a person who is required by a customs officer upon entering Canada to submit to a search of his or her person for contraband which is suspected of being secreted about his or her person, such search being pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms , thereby requiring that such person be informed of the right to retain and instruct counsel without delay?\n\nAnswer: Yes.\n\n2. Are sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, inconsistent with a person's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms , and thereby of no force and effect to the extent of that inconsistency?\n\nAnswer: No.\n\n3. If a failure to inform a person who is searched pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, of his or her right to retain and instruct counsel without delay is in violation of s. 10 of the Canadian Charter of Rights and Freedoms , is such a violation justified by s. 1 of the Canadian Charter of Rights and Freedoms ?\n\nAnswer: No.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-62", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 62", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "4. If sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, are found to be inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms , are these sections justified by s. 1 of the Canadian Charter of Rights and Freedoms ?\n\nAnswer: Question 4 does not require an answer.\n\nThe reasons of McIntyre and L'Heureux‑Dubé JJ. were delivered by\n\n69. L'Heureux‑Dubé J.‑‑I have had the opportunity of reading the reasons of the Chief Justice, and with respect I cannot agree with his disposition of the first question in this appeal.\n\n70. The first constitutional question is set out as follows:\n\n1. Is a person who is required by a customs officer upon entering Canada to submit to a search of his or her person for contraband which is suspected of being secreted about his or her person, such search being pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms , thereby requiring that such person be informed of the right to retain and instruct counsel without delay?\n\n71. In my opinion, the answer to this question must be in the negative.\n\n72. The Chief Justice approached the issues in this case by distinguishing between three types of border searches. He found that the facts of this case fell within the second type:\n\nThe second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-63", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 63", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "73. The Chief Justice limited his remarks to this second category. He found that detention under these circumstances constituted detention within the meaning of s. 10( b ) of the Charter . I must state from the outset that I have serious reservations about the use of these categories to divide the issue. However, for the present purposes, I will limit my remarks to the second category as described by the Chief Justice.\n\n74. I cannot agree with the Chief Justice as to the applicability of s. 10(b) in this case. Detention, for the purposes of s. 10(b) is defined by Le Dain J. of this Court in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641‑42:\n\nThe purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10‑‑arrest and detention‑‑are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word \"detention\", s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-64", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 64", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.\n\n75. With respect for the contrary opinion, I cannot accept the contention that this definition goes so far as to cover a search by a customs officer who carries out the routine procedures included in the Chief Justice's second category in order to prevent the illegal importation of goods and substances into Canada.\n\n76. In considering the question of detention, a distinction must be made between a search which occurs within Canada, and one which occurs when an individual attempts to gain admission to this country. Persons entering Canada, whether they be citizens or not, are placed in a unique legal situation at the point at which they enter the country.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-65", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 65", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "77. As noted by Howland C.J.O., individuals arriving at the border are subject to a form of restraint from the outset, in that they will be denied entry to the country until the immigration and customs officials are satisfied that they have a right to enter and that the goods and substances which they have in their possession are such as can be legally brought into Canada. The most common form of this restraint is the \"routine questioning\" which falls into the Chief Justice's first category. In the opinion of the Chief Justice, no Charter issues are raised in these circumstances. Where I would differ with the Chief Justice is in drawing the line after this first category. A more detailed search of the person of the individual entering the country is a standard and necessary part of border inspection procedures whenever there is, as stipulated in s. 143 of the Customs Act, R.S.C. 1970, c. C‑40, a \"reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his person.\" In the words of Howland C.J.O. (1984), 7 D.L.R. (4th) 719, at pp. 740‑41:\n\nIf a person reasonably arouses suspicion by giving the appearance of concealing something on his or her person, then he or she must expect to be asked to remove sufficient clothing to confirm or dispel this suspicion.\n\n78. The person required to undergo a strip search in these circumstances is not detained within the meaning of s. 10( b ) of the Charter .", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-66", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 66", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "79. The true meaning of detention must come from the Charter and its purpose and intent. In my view, the Therens definition would be overly broad if it was intended to cover situations at the border. The right to counsel is primarily aimed at preventing the accused or detained person from incriminating herself. Thus the main concern would be with coerced or uninformed confessions. In such circumstances, the accused would be manufacturing the evidence against herself. This is something which, in the interests of fairness, the right to counsel would seek to protect. However, a customs search occurs under circumstances where the person being searched is not in a position where she could manufacture evidence. She is not being interrogated; she is merely being searched, just as one is searched before boarding a commercial airplane on a Canadian airline. The \"right to counsel\" has less meaning in these circumstances. A further purpose of the right to counsel is illustrated by the Therens case. There, the detained person had two choices. He could submit to the test and manufacture evidence against himself, or he could refuse the test and be subject to criminal sanctions for his refusal. In such circumstances, the presence of counsel would have been necessary to inform him of his rights under each alternative, and to advise him of the best option. Again, this type of situation does not arise in a border search, although the person being searched does have a right to \"appeal\" the search to a higher customs authority, as provided in ss. 143 and 144 of the Customs Act, of which the appellant was made aware.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-67", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 67", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "80. The purpose of the right to counsel is discussed by Peter Michalyshyn in his article \"The Charter Right to Counsel: Beyond Miranda\" (1987), 25 Alta. L. Rev. 190. He quotes from the judgment of Wilson J. in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 191 of his article:\n\nIn Clarkson v. The Queen Wilson J. stated that \"This right, as entrenched in s. 10(b) of the Canadian Charter of Rights and Freedoms , is clearly aimed at fostering the principles of adjudicative fairness,\" and later, \". . . the purpose of the right, as indicated by each of the members of the court in Therens, supra, is to ensure that the accused is treated fairly in the criminal process.\"\n\n81. A border search is not part of the criminal process, but rather part of the process of entering into the country. The searched person's right to counsel would arise if and when she was placed under custody as part of the criminal process.\n\n82. Michalyshyn also compares the s. 10(b) right with the similar American right (at p. 191):\n\n[I]n the United States the right to counsel ensures that the individual facing custodial interrogation (in Canada we would substitute \"arrest or detention\") is informed of his rights so as to make a \"free and rational choice whether to incriminate himself.\" In short, the right to counsel ensures, in certain well‑defined circumstances, the individual's right against self‑incrimination.\n\n83. Using this sort of analysis, it is possible to distinguish the two types of situations. In a border search, the issue is not one of self‑incrimination. The individual is not facing \"custodial interrogation\". In my view, the right to counsel was chiefly intended for that type of situation.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-68", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 68", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "84. Therefore, given the purpose of the right to counsel, s. 10(b) clearly does not apply to a border search. The person required to undergo a strip search in these circumstances is not detained within the meaning of s. 10( b ) of the Charter .\n\n85. I do not suggest, however, that no right to counsel can ever arise in searches which occur at ports of entry. Where the purpose of the detention, interrogation, or search arises in criminal proceedings, as distinct from those concerning entry into the country, the Charter protection against unreasonable search and seizure and the right to counsel will apply. Individuals arriving at customs, however, in electing to travel outside the country or in seeking entry for the first time, have implicitly chosen to submit to the rules and procedures for leaving and entering the country. They expect, and are expected, to submit to a certain degree of inspection of their baggage, and in some cases, their person. Their situation is distinguishable from one where an individual is stopped or detained in the course of his or her normal activities within Canadian territory. It is incidents of this latter nature to which, in my view, the definition in Therens was meant to apply.\n\n86. The same issue has arisen in the United States under the American Constitution. The Chief Justice has canvassed the American jurisprudence on this point and I see no necessity to go through it again at length. I intend merely to highlight certain elements of the American case law.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-69", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 69", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "87. The Fourth Amendment protection against unreasonable search and seizure has been held in the United States not to extend to border searches. The United States Supreme Court justified this exception on the basis of national interest and the unique situation. In the words of Rehnquist J. in United States v. Ramsey, 431 U.S. 606 (1977), at p. 619:\n\nBorder searches, then, from before the adoption of the Fourth Amendment, have been considered to be \"reasonable\" by the single fact that the person or item in question had entered into our country from outside.\n\n88. On the question of national interest, the U.S. Supreme Court in Carroll v. United States, 267 U.S. 132 (1925), stated, at pp. 153‑54:\n\nTravellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.\n\n89. These considerations are crucial in drawing a distinction between stopping a person at the border and detaining someone within the country. They are also significant in underlining the valid national interests behind any distinction. Customs officials at border crossings are, in most cases, the last possible check on the importation of harmful and illicit substances into the country. There is no question that the importation of drugs into this country from abroad contributes significantly to a problem which is of serious national concern. The scope of this problem, in the context of the border situation, is highlighted by Howland C.J.O., supra, at p. 725:", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-70", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 70", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "By agreement of counsel, evidence was furnished by Superintendent Wilson that between April 1, 1982 and March 31, 1983, there were 442 drug seizures at the Toronto International Airport, of which 80% were cannabis seizures from Jamaica flights.\n\n90. It is my view that the same circumstances and conditions which have moved the American courts to exempt border searches from the Fourth Amendment protection are operative here. I would agree with the majority that ss. 143 and 144 of the Customs Act are not unreasonable and therefore do not infringe s. 8 of the Charter . In my view, the appellant was sufficiently informed of her right to appeal the search to a higher customs authority when she was shown the text of ss. 143 and 144. Because of this and because I find that the accused was not detained within the meaning of s. 10( b ) of the Charter , I cannot agree with the majority's position that the search was conducted in an unreasonable manner.\n\n91. Thus, while I concur in the result reached by the majority of the Court, for the reasons above, I respectfully disagree with the finding that the appellant was detained within the meaning of s. 10( b ) of the Charter .\n\n92. Consequently, I would answer the constitutional questions as follows:\n\n93. Question 1: No.\n\n94. Question 2: No.\n\n95. Questions 3 and 4: Do not require an answer.\n\nThe following are the reasons delivered by\n\n96. Wilson J.‑‑I have had the benefit of the reasons of both the Chief Justice and Justice L'Heureux‑Dubé and I am in agreement with the result reached by the Chief Justice and with some of his reasons.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-71", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 71", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "97. I agree with the Chief Justice that the appellant was \"detained\" within the meaning of s. 10( b ) of the Canadian Charter of Rights and Freedoms when she was forced to submit to a strip search and that she should have been informed of her right to retain and instruct counsel at that time. I also agree with the Chief Justice that ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, are not inconsistent with s. 8 of the Charter . I agree with him also that the admission of the evidence of the drugs found on the person of the appellant as a result of the strip search would not \"bring the administration of justice into disrepute\" within the meaning of s. 24(2).\n\n98. I prefer, however, to give my own reasons on the reasonableness of the strip search under s. 8.\n\n99. The constitutionality of the strip search of the appellant cannot, in my view, be determined solely on the basis of whether there has been compliance with the statutory search provisions of ss. 143 and 144 of the Customs Act. These statutory provisions must be read in conjunction with the obligation under s. 10( b ) of the Charter to inform those who are detained of their right to retain and instruct counsel without delay and to respect that right. I say that because in R. v. Therens, [1985] 1 S.C.R. 613, this Court stated at p. 621 that any limit on the constitutionally guaranteed right to counsel, if it is to be valid under s. 1 of the Charter , has to be \"prescribed by law\". Le Dain J. went on to explain what this meant at p. 645:", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-72", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 72", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements.\n\nIn R. v. Thomsen, [1988] 1 S.C.R. 640, the Court, speaking through Le Dain J., unanimously adopted his view at p. 651:\n\nI remain of the view that a limit prescribed by law within the meaning of s. 1 may result by implication from the terms of a legislative provision or its operating requirements. It need not be an explicit limitation of a particular right or freedom.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-73", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 73", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "100. There is no such limit on the appellant's s. 10(b) rights, either expressed in ss. 143 and 144 of the Customs Act or necessarily implied from the terms of these sections or from their operating requirements. There is nothing in these sections which is incompatible with the right to counsel, nor do their operating requirements preclude such right. Section 143 of the Customs Act permits a search when the customs officer \"has reasonable cause to suppose that the person searched has . . . prohibited goods, secreted about his person\". Section 144 provides \"[b]efore any person can be searched, the person may require the officer to take him before a police magistrate or justice of the peace, or before the collector or chief officer at the port or place, who shall, if he sees no reasonable cause for search, discharge the person\". These statutory provisions do not purport to impose a limit or attempt to preclude resort to the right to counsel and are completely compatible with the appellant's s. 10(b) rights. Yet the appellant was not afforded the opportunity to contact her counsel before she was strip searched.\n\n101. As the Chief Justice points out, the appellant was detained during the strip search in the sense that she was not free to leave and was subject to external restraint and control throughout the strip search. The appellant was denied her right to retain and instruct counsel without delay and her right to be informed of that right. Only after the search disclosed the presence of drugs on her person and she was arrested for importing narcotics was she informed of her right to counsel and did in fact telephone counsel.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-74", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 74", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "102. In my view, the violation of the appellant's s. 10(b) rights prior to the search renders the search unconstitutional given the complete compatibility of the authorizing statutory search provisions with the right to retain and instruct counsel without delay which is guaranteed in the Constitution. An unconstitutional search cannot be a reasonable one.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-75", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 75", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "103. Although the unconstitutionality of the search renders the search per se unreasonable, I would add that the manner in which the search was conducted in this case was also unreasonable in light of the values and purposes protected by s. 8 of the Charter . It is, in my view, unreasonable for a detained person to be simply directed to a sign on the wall of a search room setting out the legal provisions which authorize the search of his or her person. It is hardly surprising on the facts of this case that there is no indication that the appellant even read the provisions of ss. 143 and 144 of the Customs Act posted on the wall let alone exercised the legal options and rights conferred in those provisions. A person who is detained and about to be searched can hardly be expected to be his or her own lawyer. Recourse to legal assistance in such circumstances will often be essential in order to ensure that citizens are protected from unreasonable searches and seizures: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160. If the appellant had been informed of her right to consult counsel, counsel could have explained to her the right under s. 144 of the Customs Act to request higher authorization for the search and advised her as to whether or not she should exercise it. This would have furthered the purpose of s. 8 in preventing unreasonable searches. As the circumstances of this case show, the right to counsel could be highly useful in facilitating the effective and fair operation of the statutory search provisions, in particular the higher authorization procedure provided for in s. 144. In this case the appellant's right to counsel was not respected and, not surprisingly, her rights under s. 144 were not exercised.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-377-76", - "doc_type": "caselaw", - "act_code": "[1988] 2 SCR 495", - "act_short": "Simmons", - "act_name": "R. v. Simmons", - "section": "", - "citation": "R. v. Simmons, [1988] 2 SCR 495", - "marginal_note": "excerpt 76", - "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "104. This Court has recognized that the values protected by s. 8 are not limited to those of privacy: see Hunter v. Southam Inc., at p. 159. This case points up some of the additional values that are at stake in protecting people from unreasonable searches and seizures. During the actual strip search the appellant attempted to put forth a protest as to whether the removal of the bandages was \"really necessary\" before she complied. The concern in s. 8 about preventing unreasonable searches and seizures is tied to a broader concern reflected in many of the legal rights in the Charter to prevent the citizen from being overborne by the much greater power of the state. The availability of legal assistance is crucial in preventing this from happening. It is instructive to note in this case that after the strip search was completed, the drugs discovered and the appellant arrested for importing narcotics, she immediately contacted counsel when informed of her right to do so. Her earlier protests at the strip search suggest that she might well have exercised that right before or during the search had she been advised of it at that time.\n\n105. I add as a final comment that in advancing the commendable purpose of rendering all citizens secure from unreasonable searches and seizures courts should not be unduly influenced by hindsight, i.e., by the fact that many of the searches and seizures which come before us have in fact resulted in the discovery of evidence of criminal activity. The level of protection afforded to the citizen under s. 8 of the Charter must be geared to the innocent as well as to the guilty.\n\nAppeal dismissed.", - "current_to": "1988-12-08", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" - }, - { - "id": "scc-1694-1", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 1–2", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Iacobucci J. -- This appeal deals with the authority of customs officers to detain and search travellers suspected of having swallowed narcotics. More specifically, the Crown appeals the decision of the Ontario Court of Appeal overturning the conviction of the respondent for importing narcotics contrary to s. 5(1) of the Narcotic Control Act, R.S.C., 1985, c. N-1. There is no dispute that the respondent attempted to smuggle a significant quantity of heroin into Canada by swallowing 84 pellets containing the narcotic prior to his arrival from Switzerland. The respondent was convicted at trial but successfully argued on appeal that his rights under s. 8 of the Canadian Charter of Rights and Freedoms had been infringed, and that the evidence concerning the narcotics should be excluded pursuant to s. 24(2) of the Charter . I. Facts\n\nThe respondent arrived at Pearson International Airport on March 13, 1993 at approximately 4:00 p.m. Sometime prior to his arrival, the respondent had ingested 84 pellets, each containing approximately five grams of heroin that had been wrapped in condoms. When he presented himself to customs officials, the primary customs inspector marked his documentation with a code indicating “doubt” and subsequently referred him to a secondary customs area for further questioning. At the time of trial, the primary customs inspector could not recall the reason for the referral, but agreed that the marked code did not relate to smuggling narcotics.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-2", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 3", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent arrived at the secondary customs counter at 4:30 p.m. where he was interviewed by Inspector Roberts. Having questioned the respondent and inspected his travel documents and luggage, Inspector Roberts became suspicious concerning certain details of the respondent’s travel arrangements. The respondent had paid $688.00 by cheque for an airline ticket issued on the date of departure which indicated that the ticket was purchased in haste. The respondent stated that he was employed as a taxi driver, and that he had been out of the country visiting a sick cousin in Switzerland. Inspector Roberts thought it was suspicious that a person in a relatively low-paying job would be able to afford to fly to Switzerland, let alone to do so simply to visit a distant relative. Also suspicious to Inspector Roberts was the fact that the respondent’s passport showed his place of birth as Ghana, given Inspector Roberts’ informal knowledge of Switzerland as a “transit routing” country for narcotics and Ghana as a source country. He asked the respondent if he had been to Ghana during his period of travel outside of the country and the respondent replied that he had not.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-3", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 4–5", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Inspector Roberts also testified that other aspects of the respondent’s behaviour aroused his suspicions. The respondent appeared nervous during the interview, had not declared a bottle of alcohol in his possession, and had no checked baggage, although Inspector Roberts did admit that the last two factors alone do not raise a reasonable suspicion that a traveller is a drug courier. At this point, Inspector Roberts asked the respondent if he had a criminal record, and the respondent replied that he did not. Inspector Roberts subsequently obtained permission from his superior officer to conduct a computer check on the respondent, the results of which disclosed that the respondent had been charged with incest but had not as yet been tried. When Inspector Roberts returned to continue questioning the respondent, the respondent volunteered that he had been charged with assault, and also admitted that he had been to Ghana to visit his mother, despite his earlier denial of having been there.\n\nIt was at this point that Inspector Roberts decided he had sufficient grounds to detain the respondent as a suspected drug courier, and informed him of his right to counsel. Having first obtained permission from his superior officer, Inspector Roberts then contacted Interdiction and Intelligence, a unit of Canada Customs experienced in dealing with narcotics smuggling. Although customs officers from the Interdiction and Intelligence unit are normally expected to respond to a call for assistance as soon as possible, in this instance the officers did not arrive until approximately two hours later. In the interim, the respondent was detained in the secondary customs area.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-4", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 6–7", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "At 6:24 p.m., Customs Enforcement Officers Martin and Carrillo of Interdiction and Intelligence took custody of the respondent, placed him under detention, and informed him of his right to counsel. Officer Martin testified that he had formed the opinion that the respondent was a “good prospect as a drug swallower”, and that he “suspected” that the respondent had swallowed drugs. He based this opinion not only on the same information relied upon by Inspector Roberts, but also on his suspicion that the respondent may have been using two passports, given that the passport he presented at Customs did not contain a stamp from Ghana although the respondent admitted to travelling to Ghana during his time out of the country.\n\nOfficers Martin and Carrillo then took the respondent to what is known as the “drug loo facility”. The facility, which is used to process suspected drug swallowers, contains an apparatus similar to a toilet which permits customs officers to process faecal matter and isolate any narcotics and associated material which passes through a suspect’s digestive system during the period of detention. The respondent was informed of his right under s. 98(2) of the Customs Act , R.S.C., 1985, c. 1 (2nd Supp .), to be taken before the senior Customs officer for confirmation that reasonable grounds exist to suspect that a traveller has attempted to smuggle prohibited material across the Canadian border. He declined to exercise this right. The respondent was then strip-searched by Customs Enforcement Officer Martin. Nothing was found as a result of this search.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-5", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 8", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "At 6:45 p.m., Officers Martin and Carrillo sought the respondent’s consent to a urine test. The respondent declined to provide consent, and at this time the officers informed the respondent that he would remain in detention until either a negative urine test or clear bowel movement satisfied the officers that the respondent had not ingested narcotics. At 8:30 p.m., the respondent requested permission to contact his lawyer. He then had a telephone conversation with his lawyer which lasted from 8:34 p.m. until 8:50 p.m. Following the telephone call, the respondent agreed to provide a urine sample and signed the consent form. The sample was collected at 9:18 p.m., and testing confirmed the presence of heroin. At this point, Officers Martin and Carrillo arrested the respondent, who then confessed to ingesting approximately 84 pellets of heroin. Following a second telephone call to his lawyer at 9:25 p.m., the respondent began to excrete the pellets. By 1:50 a.m., when the respondent had passed 83 of the pellets, he was transferred into the custody of the RCMP. He later passed one further heroin pellet while in their custody.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-6", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 9–10", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "At one point during the respondent’s detention, prior to taking the urine test, one of the officers noted that the respondent appeared to be falling asleep. The respondent was asked whether he was feeling all right, as one of the officers became concerned that the respondent’s apparent fatigue might have been an indication of heroin intoxication. The respondent responded that he felt fine, and was instructed to tell the officers if he felt any stomach pains so that they could call a doctor. The officers testified that if the respondent had appeared to be in physical distress, or had asked to see a doctor, he would have been taken to a hospital right away, but the respondent did not at any time make such a request.\n\nNone of the various customs officers who dealt with the respondent following his arrival at Pearson International Airport was aware of the written protocol contained in the Customs Enforcement Manual which provides that because of the dangerous health risk, travellers suspected of ingesting narcotics are to be detained in the presence of qualified medical personnel. Instead, the officers followed the conflicting port policy whereby a detained traveller is not taken to a medical facility unless the traveller makes such a request or appears to be in physical distress. There was also expert testimony to the effect that hospitalization would have been the prudent course of action in the circumstances. II. Relevant Constitutional and Statutory Provisions", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-7", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 11", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Canadian Charter of Rights and Freedoms 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. 24. . . . (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Customs Act 98. (1) An officer may search (a) any person who has arrived in Canada, within a reasonable time after his arrival in Canada, (b) any person who is about to leave Canada, at any time prior to his departure, or (c) any person who has had access to an area designated for use by persons about to leave Canada and who leaves the area but does not leave Canada, within a reasonable time after he leaves the area, if the officer suspects on reasonable grounds that the person has secreted on or about his person anything in respect of which this Act has been or might be contravened, anything that would afford evidence with respect to a contravention of this Act or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament. (2) An officer who is about to search a person under this section shall, on the request of that person, forthwith take him before the senior officer at the place where the search is to take place.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-8", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 11–12", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "(3) A senior officer before whom a person is taken pursuant to subsection (2) shall, if he sees no reasonable grounds for the search, discharge the person or, if he believes otherwise, direct that the person be searched. III. Judgments Below A. Ontario Court (General Division), [1994] O.J. No. 1429 (QL)\n\nIn an oral ruling on a voir dire, Belleghem J. was satisfied that the criteria for a reasonable search and seizure within the meaning of s. 8 of the Charter and the tests established in R. v. Storrey, [1990] 1 S.C.R. 241, and R. v. Collins, [1987] 1 S.C.R. 265, were met. The search was authorized by law pursuant to s. 98 of the Customs Act , the law itself was reasonable and the search was carried out in a reasonable manner. Relying on a statement in obiter by Lamer J. (as he was then) in R. v. Greffe, [1990] 1 S.C.R. 755, to the effect that the standard for justification would be met if a suspected drug swallower was detained for the purposes of allowing nature to take its course on the basis of belief based on reasonable and probable grounds, Belleghem J. also held that the respondent was not subject to arbitrary detention in violation of s. 9 of the Charter .", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-9", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 13", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Belleghem J. next considered the respondent’s submission that his rights under s. 7 were violated because his detention was not conducted under adequate medical supervision. Belleghem J. was satisfied that “throughout the entire period of his detention with the custodial authorities, either customs or police, he was in a serious life threatening situation” (para. 27). He found that the respondent was fully aware of the risk to his own health, however, and noted that medical treatment was available at all times. Belleghem J. accordingly rejected the submission that a self-imposed threat to physical health or safety imposes on custodial authorities a constitutional obligation to provide medical supervision. The customs officers took reasonable steps in monitoring the respondent and informing him that medical attention would be provided if required, or at the respondent’s request. Belleghem J. concluded that medical assistance must be given if requested, or if such assistance appears to be reasonably necessary, but s. 7 does not otherwise operate to provide the respondent with a charter of medical rights. Accordingly, Belleghem J. held that there was no s. 7 violation. In the alternative, if the respondent’s rights under s. 7 had been violated, he held that the evidence should not be excluded under s. 24(2). The heroin pellets constituted real evidence obtained without conscripting the respondent, and the officers were acting in good faith in following the “port policy” at Pearson International Airport, notwithstanding that this policy conflicted with the official Customs Enforcement Manual. B. Ontario Court of Appeal (1997), 105 O.A.C. 1 (1) Rosenberg J.A. (Morden A.C.J.O. concurring)", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-10", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 14", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The central question as formulated by Rosenberg J.A. was “whether customs officers have the power to detain a person suspected of having swallowed drugs until the suspicions have been confirmed or the traveller has satisfied the officers that he or she is not carrying drugs” (p. 15). Rosenberg J.A. concluded that s. 98 of the Customs Act did not authorize the detention and search to which the respondent was subjected by the customs officers. The officers had at most reasonable grounds to suspect that the respondent was attempting to smuggle narcotics into Canada; they did not have reasonable grounds to believe that an offence had been committed. Mere suspicion, no matter how reasonable, is not sufficient to justify for the purposes of s. 8 the detention and search which took place.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-11", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 15", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Rosenberg J.A. analysed several issues in arriving at this conclusion. He first determined that there was no legal basis for detaining the respondent from 4:30 p.m. until his arrest at 9:18 p.m. After reviewing the requirements for a warrantless arrest established in Storrey, supra, and R. v. Feeney, [1997] 2 S.C.R. 13, he concluded that Inspector Roberts did not have the necessary reasonable and probable grounds upon which to base the arrest, having formed instead only a reasonable suspicion that the respondent had ingested narcotics. Rosenberg J.A. therefore concluded that the customs officers were not authorized by s. 98 of the Customs Act to detain the respondent. Section 98 provides customs officers with the authority to conduct a search alone, with the power to detain a traveller arising only by necessary implication pursuant to s. 31(2) of the Interpretation Act , R.S.C., 1985, c. I-21 . In other words, a customs officer may detain a traveller for the length of time necessary to conduct a search, but the condition precedent of such a detention is that the search itself be a valid exercise of authority under s. 98. The strip search of the respondent, therefore, was not authorized by s. 98, which permits a search only when a customs officer has a reasonable suspicion that a traveller has contraband “on or about his person”. Citing decisions of this Court concerning the seriousness of violations of bodily integrity, Rosenberg J.A. concluded that the phrase “on or about his person” was not sufficiently broad in scope so as to include contraband which is ingested and therefore located “within” the person.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-12", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 16–17", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Rosenberg J.A. then addressed the respondent’s submission that the seizure of the urine sample prior to the respondent’s arrest violated his rights under ss. 7 and 8 of the Charter . He found that the respondent did not voluntarily consent to the taking of a urine sample as he was led to believe that his detention would continue until evidence of either his guilt or innocence was established by a urine test or a bowel movement. Relying on Cory J.’s reasoning in R. v. Stillman, [1997] 1 S.C.R. 607, that a suspect’s refusal to consent to the collection of bodily samples while in custody becomes meaningless if, because of his detention, he cannot prevent those samples from being taken, Rosenberg J.A. held that the taking of the urine sample violated the respondent’s rights under s. 8 and may also have constituted a violation under s. 7. Since the customs officers would not have possessed reasonable and probable grounds to believe that the respondent had committed an offence except for the results of the unlawful urine test, the arrest of the respondent at 9:18 p.m. was also unlawful.\n\nHaving found the arrest to be unlawful, Rosenberg J.A. next considered whether the subsequent seizure of the heroin violated the respondent’s rights under s. 8. The Crown sought to justify the seizure either under the search power incidental to arrest, or under s. 98 of the Customs Act . Rosenberg J.A. held that the seizure could not be justified under the common law search power as the arrest itself was not lawful. Furthermore, the seizure was not authorized under s. 98 as it was not conducted “within a reasonable time” after the respondent’s arrival in Canada as is required by the provision.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-13", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 18", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, Rosenberg J.A. considered whether the failure to conduct the detention under medical supervision violated the respondent’s rights under s. 7. Rosenberg J.A. expressed some concern as to the correctness of the trial judge’s decision on this point, but noted that he did not need to address the potential s. 7 violation. Having already concluded that the evidence had been obtained in violation of the respondent’s rights under s. 8, the issue could be included within the necessary s. 24(2) analysis. Rosenberg J.A. noted that the trial judge held that had the respondent’s rights been violated under s. 7, he would still have admitted the evidence under s. 24(2). While recognizing that an appellate court should not interfere with a trial decision on the application of s. 24(2) unless the trial judge makes an unreasonable factual finding or a legal error, Rosenberg J.A. noted that the trial judge erroneously viewed the respondent as having been lawfully detained and searched. Consequently, it was open to the appellate court to review the trial judge’s conclusions concerning exclusion of the evidence under s. 24(2).", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-14", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 19", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Following the decision of this Court in Stillman, Rosenberg J.A. found that the evidence was conscripted in that production of the evidence required the forced participation of the respondent. The admission of the evidence would therefore affect the fairness of the trial and should have been excluded. In the alternative, the pattern of disregard shown by the customs officers towards the rights of the respondent exacerbated the seriousness of the violations, notwithstanding that the officers acted in good faith. In considering the effect that exclusion would have on the administration of justice, however, Rosenberg J.A. noted the seriousness of the charge, the necessity of the heroin as the only evidence against the respondent and the fact that the customs officers did not set out to abuse the criminal justice system. In the final analysis, the factors going to the seriousness of the violation of the respondent’s Charter rights and the potential effect of exclusion on the administration of justice were evenly balanced. Rosenberg J.A. therefore concluded that if the evidence was non-conscriptive, in which case the fairness of the trial would not be a factor, then the heroin was properly admitted into evidence. (2) Weiler J.A. (dissenting)", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-15", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 20–21", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Weiler J.A. found that the strip search and the collection of the respondent’s bodily waste were authorized by s. 98 of the Customs Act , and that the search and seizure were reasonable within the meaning of s. 8 pursuant to the factors enumerated in Collins. According to Weiler J.A., s. 98 authorized the detention of the respondent in order to conduct a search which included seizure of the urine sample. Section 98 permits searches in circumstances where a customs officer suspects on reasonable grounds that a person has secreted contraband “on or about his person”, a phrase Weiler J.A. interprets to include material a person has ingested and therefore secreted within his or her person. The search also took place within a reasonable time after the respondent’s arrival in Canada, having regard to the length of the period of detention and the type of search required.\n\nAs to whether the “bedpan vigil” conducted by the customs officers was constitutionally valid pursuant to s. 8, Weiler J.A. referred to the three categories of border searches enumerated by Dickson C.J. in R. v. Simmons, [1988] 2 S.C.R. 495. Detaining a traveller in a “drug loo facility” is a less invasive search technique than those included by Dickson C.J. in the third and most intrusive category of border searches, such as X-rays or the administration of emetics. Accordingly, the search conducted by the customs officers in this case belonged in the second category as being analogous to a strip search. A passive “bedpan vigil” is the least intrusive means of monitoring the alimentary canal in circumstances where there is a real danger of losing evidence and where the protection and safety of the public are of primary concern.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-16", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 22–24", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, Weiler J.A. concluded that the respondent’s rights under s. 7 were not violated. It was the respondent’s refusal of the offer of medical attention which endangered his safety, and not his detention per se. Although the respondent was deprived of his physical liberty, he was not deprived of the liberty to make his own health decisions, regardless of whether these decisions were in his own best interest. Medical attention was offered, the respondent knew the specifics of his own self-induced situation and he had the advice of counsel.\n\nAs to the application of s. 24(2), Weiler J.A. held that in the event that the manner of search was unreasonable, the good faith of the customs officers in carrying out the search required the evidence to be admitted. IV. Issues\n\nAs noted above, this appeal concerns the question of whether customs officers have the authority to detain a traveller suspected of having swallowed narcotics until the suspicion has either been confirmed or the traveller satisfies the officers that he or she is not carrying narcotics. In the context of this appeal, this question raises the following issues: a. Were the actions of the customs officers authorized by s. 98 of the Customs Act ? b. Does s. 7 of the Charter require that the detention of a traveller who is believed to have swallowed narcotics be conducted under medical supervision? c. If the accused’s Charter rights were violated, should the evidence of the heroin pellets have been excluded at trial pursuant to s. 24(2)? V. Analysis A. Were the actions of the customs officers authorized by s. 98 of the Customs Act ? 1. Does the phrase “secreted on or about his person” in s. 98 of the Customs Act authorize customs officers to search for narcotics which they suspect a traveller has ingested?", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-17", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 25", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "In order to assess whether the search conducted by the customs officials on the respondent was authorized by s. 98 of the Customs Act , it is necessary first to determine whether the phrase “on or about his person” in s. 98(1) refers not only to contraband which is concealed by a traveller in luggage, under clothes or in some other manner external to the traveller’s body, but includes as well contraband which the traveller has ingested. The respondent argues that as a matter of common parlance, standard dictionary definitions of the words “on” and “about” do not support an interpretation of the phrase “on or about his person” which is sufficiently broad to include items which a traveller has ingested and which are subsequently located internally within the traveller’s digestive system. Further, s. 98 requires a customs official to conduct the search “within a reasonable time”. The respondent argues that the inclusion of a time restriction within s. 98 necessarily leads to the conclusion that the phrase “on or about his person” is not meant to apply to ingested narcotics. A passive “bedpan vigil” such as was necessary to confirm the presence of heroin pellets within the respondent’s digestive tract at the time he attempted to cross the Canadian border involves a lengthy detention process and therefore cannot be conducted “within a reasonable time”.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-18", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 26", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Admittedly, statutory interpretation in the context of constitutional review is not an exact science. While reference to common parlance and standard dictionary definitions are often of assistance in interpreting legislative provisions, regard must be had not only to the ordinary and natural meaning of the words, but also to the context in which they are used and the purpose of the provision as a whole: R. v. Lewis, [1996] 1 S.C.R. 921. The most significant element of this analysis is the determination of legislative intent. In light of these guidelines, the respondent’s interpretation of the phrase “on or about his person” is, with respect, misguided. As Weiler J.A. noted in her dissenting judgment in the Court of Appeal, when read in context, the words “on or about his person” are contained within the larger phrase “secreted on or about his person”. In my view, an examination of this context demonstrates that Parliament intended to confer authority on customs officers, so far as the Charter permits, to search for prohibited material not only on or about the surface of the traveller’s body, but also secreted or concealed within the traveller’s body. Fundamentally, the legislative intent of s. 98 was to grant officers the necessary authority to control the smuggling of contraband into Canada. As this Court reiterated in Lewis, a legislative phrase should be given a meaning consonant with the purpose of the statutory provision unless the contrary is indicated, provided, of course, that such an interpretation is consistent with constitutional limitations and conventional rules of interpretation.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-19", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 27", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent’s suggested interpretation of s. 98 is unnecessarily restrictive, in terms of both the literal text and Parliamentary intent. The provision does not refer to a traveller who has “placed” items on or about his or her person, in which case a more compelling argument could be made that the legislative intent was to restrict the authority of customs officers to searches of a person’s exterior physical body and associated personal effects. Instead, the English version of the provision refers to material which the traveller has “secreted” on or about his or her person. The verb “secrete” refers to the act of placing material into a concealed location: Concise Oxford Dictionary (9th ed. 1995). The French text confirms this interpretation, as the verb “dissimuler” refers to the act of hiding (cacher) or concealing (celer): Le Nouveau Petit Robert (1996). The concept of concealment, rather than the distinction between the interior or exterior of the traveller’s physical body, is the fulcrum of the search power in s. 98 of the Act.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-20", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 28–29", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Parliament’s intent in extending the authority of customs officers to search for any concealed material, whether located internal or external to the traveller’s physical body, is further supported by the illogical outcome that would ensue if the Court were to adopt a more restrictive interpretation. A traveller intent on smuggling narcotics across the Canadian border would be able to defeat the purpose of the provision simply by concealing contraband inside his or her mouth rather than under his or her clothing or elsewhere on his or her body. Interpreting s. 98 in light of the provision’s purpose, which is to restrict the entry of contraband material into Canada, the phrase “secreted on or about his person” cannot have been intended to permit such an absurd result. 2. Does s. 98 of the Customs Act authorize a search in the manner conducted by the customs officers whereby a traveller is detained in a “drug loo facility” until a suspicion of ingesting narcotics is confirmed or dispelled?\n\nThe actions of the customs officers in detaining the respondent in a “drug loo facility” and collecting the pellets which passed through his system amounted to a search and seizure for the purposes of s. 8 of the Charter . Pursuant to the Court’s decision in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, prior authorization is a necessary precondition for a constitutionally valid search and seizure. A warrantless search or seizure is therefore prima facie unreasonable under s. 8, and the Crown bears the onus of rebutting the presumption of unreasonableness by demonstrating that its actions were authorized by law, that the law itself was reasonable and that the search was carried out in a reasonable manner: Collins, supra.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-21", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 30–31", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Crown submits that the actions of the customs officers were reasonable in that they were authorized by s. 98 of the Customs Act . Section 98 permits customs officers to search a traveller provided there exists a reasonable suspicion that contraband has been “secreted on or about his person” and that the search occurs “within a reasonable time” of the traveller’s arrival in Canada. The constitutionality of s. 98 itself is not in issue in this appeal. The relevant question for determination instead is whether the actions of the customs officers in detaining the respondent in a “drug loo facility” are within the scope of permissible activities authorized by s. 98. The respondent contends that s. 98 is meant to apply only to brief, non-intrusive searches such as a pat-down or at most a strip search, and cannot be read as authorization for the ostensibly lengthy detention and intrusive procedures carried out by the customs officers in this situation.\n\nSection 98 of the Customs Act provides customs officers with the necessary authority to search travellers suspected of transporting narcotics across the border, but does not define the manner in which a search may be carried out. Nonetheless, as the following passage from the reasons of Lamer J. (as he was then) in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078, indicates, statutory provisions are to be interpreted in a manner which is consistent with the Charter : Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter , there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-22", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 32", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Accordingly, the alternatives available for customs officials in attempting to ascertain whether a traveller has indeed ingested narcotics are subject to constitutional limitations. Section 98 should not be interpreted, so far as is possible, in a manner which would permit customs officers to violate a traveller’s rights under s. 8 of the Charter . The task of the Court in the present appeal is to determine whether the manner of search carried out against the respondent comes within these limitations.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-23", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 33", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Simmons, supra, the Court considered the constitutional requirements of searches conducted at the Canadian border by customs officers. The accused had submitted that her rights under s. 8 of the Charter were violated when she was subjected to a strip search based on the customs officer’s reasonable suspicion that she was attempting to smuggle narcotics into Canada. The relevant statutory provisions were ss. 143 and 144 of the former Customs Act, R.S.C. 1970, c. C‑40, which permitted customs officers to conduct personal searches absent prior judicial authorization and to initiate such searches on the basis of a standard falling short of reasonable and probable grounds. At issue in particular was whether these provisions were constitutionally valid given that they did not meet the three criteria of a reasonable search and seizure articulated in Hunter, supra: (a) where possible, the search must be approved by prior authorization; (b) the person authorizing the search need not be a judge, but must be in a position to act in a judicial manner, i.e. the person must be able to assess in a neutral and impartial fashion whether on the evidence available a search is appropriate; and (c) there must be reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that evidence of the offence is to be found at the location to be searched.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-24", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 34", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court concluded in Simmons that, although the constitutional safeguards articulated by the Hunter standard should not be rejected lightly, the framework established in Hunter for analysing the reasonableness of a search for the purposes of s. 8 was inapplicable to border searches. Dickson C.J. accepted the proposition established in United States jurisprudence that border searches should be distinguished from searches occurring in other circumstances in which the security of Canada’s interior is not engaged. He expressed his agreement with this distinction as follows, at pp. 527-28: The dominant theme uniting these cases is that border searches lacking prior authorization and based on a standard lower than probable cause are justified by the national interests of sovereign states in preventing the entry of undesirable persons and prohibited goods, and in protecting tariff revenue. These important state interests, combined with the individual’s lowered expectation of privacy at an international border render border searches reasonable under the Fourth Amendment. In my view, the state interests enunciated throughout the American jurisprudence that are deemed to make border searches reasonable, are no different in principle from the state interests which are at stake in a Canadian customs search for illegal narcotics. National self-protection becomes a compelling component in the calculus.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-25", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 35", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Dickson C.J. also referred to the caveat expressed in the reasons in Hunter that the reasonableness of a search must be assessed in context. The relevant qualification of the reasonableness standard as stated in Hunter is that the standard of reasonableness is subject to change \"[w]here the state's interest is not simply law enforcement as, for instance, where state security is involved, or where the individual's interest is not simply [an] expectation of privacy as, for instance, when the search threatens . . . bodily integrity\" (p. 168). Adopting a contextual approach to the assessment of reasonableness for the purposes of s. 8, the Court concluded in Simmons that the degree of personal privacy reasonably expected at border crossings is lower than would otherwise be available in a wholly domestic setting.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-26", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 36", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Simmons, Dickson C.J. summarized the balance between a state’s interest in preventing the flow of contraband across its borders and the individual’s privacy interests as protected by s. 8 of the Charter as follows, at p. 528: I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process beginning with completion of a declaration of all goods being brought into the country. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-27", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 37", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my opinion, the decision of the Court in Simmons governs the issue raised in the present appeal. Whereas s. 143 of the previous Act referred to whether a customs officer has “reasonable cause to suppose” that a traveller has prohibited material “secreted about his person”, and s. 98 of the current Act refers instead to whether a customs officer “suspects on reasonable grounds” that the person has prohibited material “secreted on or about his person”, these provisions are sufficiently similar to apply the analytical framework from Simmons to determine the outcome of this appeal. I say this notwithstanding the assertion made by Dickson C.J. in Simmons that s. 98 of the current Act changed the standard from one of suspicion in the former to reasonable grounds in the present Act, an assertion with which I do not agree.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-28", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 38", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "In assessing the constitutionality of a strip search conducted on a person travelling through Canada Customs, Dickson C.J. in Simmons correlated three categories of border searches, based on the degree of intrusion into personal privacy and bodily integrity, with an increasing threshold of constitutional justification. In other words, the more intrusive the search, the greater the degree of constitutional protection required in terms of the standard of suspicion or belief which must be met prior to subjecting a traveller to a search by customs officers. Dickson C.J. articulated the necessary correlation as follows, at pp. 516-17: It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X‑rays, to emetics, and to other highly invasive means.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-29", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 38–39", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "I wish to make it clear that each of the different types of search raises different issues. We are here concerned with searches of the second type and what I have to say relates only to that type of search. Searches of the third or bodily cavity type may raise entirely different constitutional issues for it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection. I turn now to a consideration of the appellant's specific Charter claims.\n\nDickson C.J. concluded that the standard of “reasonable cause to suppose” in s. 143 of the prior Act authorized border searches in both the first and second categories. No determination was made as to the degree of constitutional scrutiny required for the third category of intrusive border searches, nor is it necessary at this time to decide whether s. 98 of the current Act authorizes customs officers to adopt invasive techniques such as X-rays, emetics or the intervention of medical doctors. I conclude that the actions of the customs officers in detaining the respondent in a “drug loo facility” and conducting what could be characterized as a “bedpan vigil” amounted to a search within the second category.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-30", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 40", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent has urged the Court to find that compelling a traveller who is suspected of swallowing narcotics to provide a urine sample or a bowel movement under supervision is not simply a passive vigil but constitutes state interference with a person’s bodily integrity by seizing or otherwise making use of bodily samples. The respondent relied for support on the decision of the Court in Stillman, supra, in which Cory J. held for the majority that both probable cause and a warrant are the minimum constitutional standards for the seizure of bodily samples or the use of the body under s. 8 of the Charter . As s. 98 of the Customs Act does not require either probable cause or a warrant prior to conducting a border search, the respondent therefore contends that this provision cannot be used to authorize the seizure of body samples which occurred in the circumstances of this appeal. The respondent submits that the collection of bodily waste is sufficient to place a “bedpan vigil” within the category of “most highly intrusive” border searches on the basis that the search interferes with the right to bodily integrity.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-31", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 41", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent’s reliance on the Court’s decision in Stillman, however, is misplaced. Detaining the respondent at the border in order to monitor his bowel movements and ascertain the presence of concealed narcotics is not analogous to the factual circumstances in Stillman, wherein the respondent was arrested for murder and refused consent to provide bodily samples for the purposes of DNA testing. The police, upon threat of force, nonetheless obtained bodily samples from the respondent while he was in custody, including strands of hair, dental imprints, saliva samples and buccal swabs. At one point, the police also retrieved a tissue that the respondent had used to blow his nose and had discarded in a wastebasket. At issue was whether the taking of the samples by the police was authorized by the common law search power incidental to an arrest. Cory J. concluded that the taking of bodily samples is a highly intrusive action which goes far beyond the typical frisk search that usually accompanies an arrest. Accordingly, he held that the respondent’s rights under s. 8 had been violated.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-32", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 42–43", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The most significant distinction between the circumstances of this appeal and the situation of the respondent in Stillman is that border crossings represent a unique factual circumstance for the purposes of a s. 8 analysis. The particularity of this context was recently affirmed by this Court in R. v. Jacques, [1996] 3 S.C.R. 312, wherein Gonthier J. stated for the majority as follows at para. 18: The unique context that border crossings present was recognized by this Court in R. v. Simmons, [1988] 2 S.C.R. 495. Dickson C.J., writing for the majority, said (at p. 528): National self‑protection becomes a compelling component in the calculus. I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries.\n\nAccordingly, decisions of this Court relating to the reasonableness of a search for the purposes of s. 8 in general are not necessarily relevant in assessing the constitutionality of a search conducted by customs officers at Canada’s border.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-33", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 44", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "A second important distinction between the circumstances of this appeal and those present in Stillman is that the customs officers, in detaining the respondent in this case and subjecting him to a passive “bedpan vigil”, were not attempting to collect bodily samples containing personal information relating to the respondent. Cory J. in Stillman expressed particular concern that the actions of the police in gathering DNA evidence violated the respondent’s expectations of privacy in using his body to obtain personal information. He relied in part on La Forest J.’s observation in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431‑32, that \"the use of a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity\". Thus the right of privacy protected by s. 8 of the Charter ensures that individuals are able to maintain bodily integrity and autonomy in the face of potential state interference. Cory J. summarized the connection between privacy and bodily integrity as follows, at para. 87: Canadians think of their bodies as the outward manifestation of themselves. It is considered to be uniquely important and uniquely theirs. Any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and privacy.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-34", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 45", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Heroin pellets contained in expelled faecal matter cannot be considered as an “outward manifestation” of the respondent’s identity. An individual’s privacy interest in the protection of bodily fluids does not extend to contraband which is intermingled with bodily waste and which is expelled from the body in the process of allowing nature to take its course. It is not necessary for determination of the issue in this appeal to address the question of whether, if the customs officers had adopted a more invasive form of collection, such as surgery or inducing a bowel movement, the result would necessarily be the same.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-35", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 46", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "As to my determination that the passive “bedpan vigil” conducted by the customs officers is properly classified as a search within the second category, a review of the representative border searches provided by Dickson C.J. in his analytical framework reveals that the principal distinction between searches in the second and third categories is that all of the examples listed in the third category involve, to a greater or lesser degree, the intentional application of force. Search techniques such as the insertion of a probe into a body cavity or the administration of an emetic could all be characterized in the absence of lawful authority as an assault. Consequently, the potential degree of state interference with an individual’s bodily integrity for searches in the third category requires a high threshold of constitutional justification. In Stillman, Cory J. affirmed the highly invasive nature of searches in the third category when he stated as follows, at para. 42: It has often been clearly and forcefully expressed that state interference with a person's bodily integrity is a breach of a person's privacy and an affront to human dignity. The invasive nature of body searches demands higher standards of justification. In R. v. Pohoretsky, [1987] 1 S.C.R. 945, at p. 949, Lamer J., as he then was, noted that, \"a violation of the sanctity of a person's body is much more serious than that of his office or even of his home\". In addition, La Forest J. observed in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431‑32, \"the use of a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity\". Finally, in R. v. Simmons, [1988] 2 S.C.R. 495, at p. 517, Dickson C.J.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-36", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 46–47", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "stated: The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X‑rays, to emetics, and to other highly invasive means.\n\nThus the determination of this appeal revolves around the central question of whether a “bedpan vigil” can properly be characterized as an “invasive” procedure on a par with body searches involving the intentional application of force. In my opinion, it cannot. There is no doubt that Canadians expect treatment that recognizes a strong sense of modesty concerning bodily functions. A traveller who is detained in a “drug loo facility” and compelled to produce either urine or a bowel movement under supervision is subject to an embarrassing process. In my view, however, a passive “bedpan vigil” is not as invasive as a body cavity search or medical procedures such as the administration of emetics. In this sense, the right to bodily integrity is not to be confused with feelings of modesty, notwithstanding their legitimacy. Accordingly, a passive “bedpan vigil” is more appropriately analogous to a category two strip search on the basis that a suspect is detained and placed in an embarrassing situation, but is not subjected to an intentional application of force against his or her will.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-37", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 48", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "While I conclude that the compelled production of a urine sample or a bowel movement is an embarrassing process, it does not interfere with a person’s bodily integrity, either in terms of an interference with the “outward manifestation” of an individual’s identity, as was the central concern in Stillman, or in relation to the intentional application of force, as was relevant in Simmons. As is the case with other investigation techniques in the second category such as a strip search, subjecting travellers crossing the Canadian border to potential embarrassment is the price to be paid in order to achieve the necessary balance between an individual’s privacy interest and the compelling countervailing state interest in protecting the integrity of Canada’s borders from the flow of dangerous contraband materials. Accordingly, I find that the border search conducted by the customs officers in the circumstances of this appeal was reasonable for the purposes of s. 8 of the Charter . 3. Did the customs officers have a reasonable suspicion that the respondent had narcotics secreted on or about his person?", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-38", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 49", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The reasons of the majority in the Court of Appeal overturned the trial judge’s ruling on the voir dire that Inspector Roberts had reasonable grounds to believe that the respondent had ingested narcotics prior to his arrival at Pearson International Airport, and was attempting to smuggle these narcotics across the Canadian border. The majority held instead that Inspector Roberts had only a reasonable suspicion. Having determined, however, that the search conducted by the customs officers was constitutionally permissible pursuant to s. 98 of the Customs Act on the basis of reasonable grounds to suspect, which can be viewed as a lesser but included standard in the threshold of reasonable and probable grounds to believe, I see no reason to interfere with the implicit factual finding at trial, confirmed on appeal, that Inspector Roberts had at the very least reasonable grounds to suspect that the respondent had ingested narcotics.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-39", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 50", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is important to note that Inspector Roberts based his conclusion on the cumulative effect of several factors, and that no one factor can be assessed in isolation. Recall that Inspector Roberts first noted that the respondent’s airline ticket to Switzerland had cost $688.00 and was paid for by cheque on the date of departure. Inspector Roberts interpreted this to indicate that the respondent had left Canada in haste, since in his experience most people arrange their travel plans and purchase their tickets well in advance of the date of departure. It had also been his experience that the average traveller is unlikely to fly to Switzerland on short notice to visit a cousin, particularly in circumstances such as the respondent’s where financial resources would most likely be limited. These factors increased in significance given Inspector Roberts’ opinion that Switzerland was a “transit routing” country for narcotics smuggling. Inspector Roberts also noted that the respondent’s passport listed his place of birth as Ghana, which Inspector Roberts viewed as a corresponding “source” country. The respondent, however, denied in response to Inspector Roberts’ questioning that he had travelled to Ghana while out of the country.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-40", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 51–52", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Inspector Roberts next asked the respondent whether he had a criminal record, which the respondent also denied. Inspector Roberts then performed a computer check which disclosed that the respondent had been charged with incest but had not yet been tried. When Inspector Roberts returned from completing the computer check to question the respondent further, the respondent volunteered the information that was perhaps the most damaging to his credibility. Although the respondent initially denied having travelled to Ghana, he subsequently admitted to Inspector Roberts that he had indeed visited Ghana to visit his mother. It was at this point that Inspector Roberts indicated in his evidence: “I had actually got grounds”. In my opinion, a traveller’s inability to maintain consistency when responding to questions regarding his or her travel itinerary, particularly in circumstances where the itinerary is relatively uncomplicated, leads to an entirely reasonable inference that the traveller is attempting at the very least to mislead the customs officer.\n\nWhen the respondent’s admission to having visited Ghana is considered in light of the cumulative effect of the factors considered by Inspector Roberts, particularly in light of Inspector Roberts’ view that the respondent had visited both a “transit routing” and “source” country for narcotics, Inspector Roberts’ assessment that he had reasonable grounds to suspect that the respondent was attempting to smuggle ingested narcotics into Canada is unassailable. 4. Did the customs officers conduct the search of the respondent “within a reasonable time after his arrival in Canada” as required by s. 98(1) of the Customs Act?", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-41", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 53", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "On the question of whether the customs officers conducted the search within a reasonable time after the respondent’s arrival in Canada, I agree with Weiler J.A.’s conclusion that the assessment of “reasonableness” must take into account not only any delay in the search process, but also the inherent time requirements of the particular search technique. Based on the evidence at trial, a delay of 30 minutes from the time a person is detained until the search begins is reasonable. In this case, however, the customs enforcement officers did not arrive until nearly two hours after the respondent was detained. As Weiler J.A. noted, however, while a delay at any point in the search process is an important consideration, it cannot be examined in isolation. Given the fact that a passive “bedpan vigil” is an inherently time-consuming process, I am of the opinion that the delayed response by the customs enforcement officers of one-and-a-half hours is not sufficient to establish that the search of the respondent was not conducted “within a reasonable time after his arrival in Canada” as required by s. 98(1) of the Customs Act. B. Does s. 7 of the Charter require that the detention of a traveller who is believed to have swallowed narcotics be conducted under medical supervision?", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-42", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 54", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is not disputed that those who ingest large amounts of heroin in the form of pellets will be placed in physical danger should one of the pellets burst or otherwise begin leaking while still inside the person’s digestive system. The risk increases with time and to the extent that the natural passage of the material in the form of a bowel movement is resisted. There is no doubt that the respondent’s safety was at risk for this reason and that the customs officers were aware of this fact once the positive urine test confirmed the presence of heroin in the respondent’s system. Although the official customs policy in such cases is to conduct the detention in a hospital or otherwise under qualified medical supervision, the customs officers were unaware of this official policy and instead followed the standard port policy, which was to monitor the suspect closely and to provide prompt medical attention if requested by the suspect, or should the need arise.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-43", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 55", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent contends that the actions of the customs officers placed his life at risk in a manner contrary to his guaranteed constitutional rights under s. 7 of the Charter by failing to ensure that his detention was conducted at all times under medical supervision. The Court held in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, that state action which has the likely effect of impairing a person’s health engages the fundamental right under s. 7 to security of the person. What the respondent is seeking in this appeal, however, is to extend this constitutional guarantee to include an obligation by the state to provide medical supervision in response to the risk to the respondent’s health which in these circumstances was self-induced, notwithstanding that the respondent himself refused the offer of medical attention.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-44", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "paras 56–57", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "As Weiler J.A. noted, although the respondent was deprived of his physical liberty during his period of detention, he was not deprived of the liberty to make his own decisions concerning his health, regardless of whether he made a decision which was contrary to his own best interests. The customs officers specifically inquired as to the respondent’s well-being and made it clear to the respondent that unconditional medical assistance was available at any time. While it might have been preferable for the customs officers to have followed the official customs policy, as indicated in the testimony of the expert, they took reasonable steps to ensure the respondent’s physical safety by monitoring his condition and specifically offering him access to medical care. Constitutional protection of life and security of the person pursuant to s. 7 of the Charter does not extend to providing access to medical supervision during a passive “bedpan vigil” over and above the rejection of medical attention by the suspect being detained. C. If the accused’s Charter rights were violated, should the evidence of the heroin pellets have been excluded at trial pursuant to s. 24(2)?\n\nHaving determined that the customs officers’ detention of the respondent in order to confirm their suspicions that he had ingested narcotics did not violate the respondent’s rights under s. 7 or s. 8 of the Charter , I do not find it necessary to address the exclusion of evidence under s. 24(2). VI. Conclusion and Disposition", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-1694-45", - "doc_type": "caselaw", - "act_code": "[1999] 1 SCR 652", - "act_short": "Monney", - "act_name": "R. v. Monney", - "section": "", - "citation": "R. v. Monney, [1999] 1 SCR 652", - "marginal_note": "para 58", - "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "I conclude that the actions of the customs officers were authorized by s. 98 of the Customs Act on the basis that: (a) s. 98 of the Act permits customs officers who have a reasonable suspicion that a traveller has ingested narcotics to detain the traveller for such a period of time as is necessary either to confirm or discredit this suspicion by means of a passive “bedpan vigil”; and (b) the customs officers in the circumstances of this appeal did have reasonable grounds to suspect that the respondent had indeed ingested narcotics. Accordingly, I would allow the appeal, set aside the judgment of the Ontario Court of Appeal, and restore the conviction entered at trial. Appeal allowed.", - "current_to": "1999-04-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" - }, - { - "id": "scc-986-1", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 1", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053\n\nAbdul Rassoul Dehghani Appellant\n\nv.\n\nThe Minister of Employment and Immigration Respondent\n\nand\n\nThe Canadian Council of Refugees Intervener\n\nIndexed as: Dehghani v. Canada (Minister of Employment and Immigration)\n\nFile No.: 22153.\n\n1992: December 2; 1993: March 25.\n\nPresent: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.\n\non appeal from the federal court of appeal\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Examinations at port of entry by immigration officer ‑‑ Convention refugee claimants ‑‑ Secondary examination ‑‑ Whether claimant detained and having right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms .\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Right to counsel ‑‑ Examinations at port of entry by immigration officer ‑‑ Convention refugee claimants ‑‑ Secondary examination ‑‑ Whether claimant having right to counsel under s. 7 of Canadian Charter of Rights and Freedoms .\n\nImmigration ‑‑ Examinations at port of entry by immigration officer ‑‑ Convention refugee claimants ‑‑ Secondary examination ‑‑ Whether claimant having right to counsel under ss. 7 or 10(b) of Canadian Charter of Rights and Freedoms .", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-2", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 2", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant, a citizen of Iran, arrived in Canada without valid travel or identity documents and claimed Convention refugee status. At the airport, he entered a primary examination line and was subsequently referred to a secondary examination before an immigration officer in another part of the airport, where he waited approximately four hours before the examination took place. In answering questions as to his claim to Convention refugee status, the appellant omitted important factual details. At the conclusion of the secondary examination, he was advised of his right to counsel to help him put forward his refugee claim. Following an inquiry, an adjudicator and an immigration refugee board member concluded that he did not have a credible basis for his refugee claim and issued an exclusion order. The Federal Court of Appeal dismissed the appellant's application to review and set aside the decision under s. 28 of the Federal Court Act and upheld the order. The majority of the court held that the appellant had not been \"detained\" in a manner contemplated by s. 10( b ) of the Canadian Charter of Rights and Freedoms prior to or during the secondary examination at the airport and, accordingly, that no obligation to inform him of his right to counsel arose. This appeal raises two issues: (1) whether the appellant was detained within the meaning of s. 10( b ) of the Charter during his secondary examination at the airport; and (2) whether the appellant's rights under s. 7 of the Charter were infringed by the failure to provide him with counsel at the port of entry.\n\nHeld: The appeal should be dismissed.\n\n(1) Section 10(b)", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-3", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 3", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "A secondary examination by an immigration officer at a port of entry does not constitute a \"detention\" within the meaning of s. 10( b ) of the Charter . The element of state compulsion is insufficient. The appellant's questioning in the secondary examination was a routine part of the general screening process for persons seeking entry to Canada. The questioning was purely for the purpose of processing his application for entry and determining the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. Travellers seeking to cross national boundaries fully expect to be subject to a screening process. In this case, there was no action on the part of the immigration authorities to indicate that the restriction on the appellant's freedom had gone beyond that required for the processing of his application for entry and had become a restraint of liberty. Further, there is no stigma associated with a referral to a secondary examination. The absence of stigma is another factor indicating that no detention of constitutional consequence occurs during routine questioning.\n\nIt would be unreasonable to expect the screening process for all persons seeking entry into Canada to take place in the primary examination line. For those persons who cannot immediately produce documentation indicating their right of entry, the screening process requires more time and a referral to a secondary examination is therefore necessary. The secondary examination is a continuation or completion of the initial examination which takes place in the primary inspection line and remains a routine part of the general screening process.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-4", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 4", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "Neither the existence of a statutory duty to answer the questions posed by the immigration officer nor the existence of criminal penalties for both the failure to answer questions and knowingly making a false or misleading statement necessitates the conclusion that the appellant was detained within the meaning of s. 10(b). These provisions are both logically and rationally connected to the role of immigration officials in examining those persons seeking to enter the country. Indeed, they are required to ensure that border examinations are taken seriously and are effective.\n\n(2) Section 7\n\nAssuming that s. 7 of the Charter is engaged in the circumstances of this case, the principles of fundamental justice do not require that the appellant be provided with counsel at the pre‑inquiry or pre‑hearing stage of the refugee claim determination process. While the right to counsel under s. 7 may apply in other cases besides those which are encompassed by s. 10(b), in an immigration examination for routine information‑gathering purposes, the right to counsel does not extend beyond those circumstances of arrest or detention described in s. 10(b). An inquiry to determine whether the appellant's claim to Convention refugee status had a credible basis was held and, pursuant to s. 30(1) of the Immigration Act, the appellant was informed of his right to counsel. He was in fact represented by counsel during the credible basis inquiry and had the opportunity to state his case and know the case he had to meet. The principles of fundamental justice do not include a right to counsel for routine information gathering and to allow counsel at port of entry interviews would constitute unnecessary duplication.\n\nCases Cited", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-5", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 5", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "Applied: R. v. Therens, [1985] 1 S.C.R. 613; R. v. Simmons, [1988] 2 S.C.R. 495, aff'g (1984), 11 C.C.C. (3d) 193 (Ont. C.A.); R. v. Kwok (1986), 31 C.C.C. (3d) 196; referred to: R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Rodenbush (1985), 21 C.C.C. (3d) 423; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Jones, [1986] 2 S.C.R. 284; R. v. Lyons, [1987] 2 S.C.R. 309; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; R. v. Beare, [1988] 2 S.C.R. 387; Montfort v. Minister of Employment and Immigration, [1980] 1 F.C. 478; R. v. Généreux, [1992] 1 S.C.R. 310; R. v. Pearson, [1992] 3 S.C.R. 665.\n\nStatutes and Regulations Cited\n\nCanadian Charter of Rights and Freedoms , ss. 1 , 7 , 8 to 14 , 10( b ) , 24(2) .\n\nFederal Court Act , R.S.C., 1985, c. F‑7 , s. 28 .\n\nImmigration Act, R.S.C., 1985, c. I‑2, ss. 12, 19 [am. c. 30 (3rd Supp.), s. 3], 20, 23(3), (4), 30(1) [rep. & sub. c. 28 (4th Supp.), s. 9], 43(1) [idem, s. 14], 94(1)(g) [idem, s. 24], (h) [idem].", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-6", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 6", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "APPEAL from a judgment of the Federal Court of Appeal, [1990] 3 F.C. 587, 72 D.L.R. (4th) 58, 113 N.R. 382, 1 C.R.R. (2d) 253, 11 Imm. L.R. (2d) 51, dismissing appellant's application under s. 28 of the Federal Court Act to review and set aside the decision of an adjudicator and an Immigration Refugee Board member. Appeal dismissed.\n\nPia Zambelli and Barbara Jackman, for the appellant.\n\nJ. E. Thompson, Q.C., and Donald A. MacIntosh, for the respondent.\n\nDavid Matas, for the intervener.\n\n//Iacobucci J.//\n\nThe judgment of the Court was delivered by\n\nIacobucci J. -- This appeal concerns the scope of ss. 10( b ) and 7 of the Canadian Charter of Rights and Freedoms as they apply to refugee claimants entering Canada. Specifically, the appeal raises the issue of whether a secondary examination by an immigration officer at a port of entry constitutes a \"detention\" within the meaning of s. 10( b ) of the Charter . In addition, the question of the right to counsel under s. 7 of the Charter is raised.\n\nI. Background\n\nThe appellant is a citizen of Iran. He arrived in Canada on May 13, 1989 without valid travel or identity documents, and claimed Convention refugee status. He did not understand English, the language in which the procedures in issue were conducted, and was provided with an interpreter.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-7", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 7", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "When the appellant arrived at Pearson International Airport in Toronto, he entered a primary examination line. From there, he was referred to a secondary examination before an immigration officer in another part of the airport, and waited approximately four hours before this examination took place. He was not advised of a right to counsel at any time during the proceedings. The immigration officer conducting the secondary examination made extensive written notes. During the examination, the appellant was asked questions relating to his admissibility under s. 19 of the Immigration Act, R.S.C., 1985, c. I‑2, which sets out those classes whose members shall not be granted admission to Canada, such as persons who are a danger to public health or safety or persons who have been convicted of a serious criminal offence. The appellant was also questioned as to his claim to Convention refugee status. In answering these questions, the appellant omitted important factual details concerning the grounds of his claim to refugee status. In addition, in response to a question about the basis for his refugee claim, the appellant stated that he wanted to work for himself and the future of his children who want to study.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-8", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 8", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "With regard to his claim to Convention refugee status, the appellant later claimed that he suffered persecution in Iran for his royalist beliefs and for his support for the Shah of Iran. Because of his support of the royalist cause, the appellant stated that he and his family were investigated and driven into hiding, one of his daughters was arrested and executed, and the appellant's business was confiscated. For these reasons, he fled Iran for Turkey in April 1989, and this was the last time he saw his family. However, the appellant omitted to tell these facts to the immigration officer in the secondary examination.\n\nThe immigration officer who conducted the secondary examination concluded that the appellant could not be admitted to Canada under s. 19 of the Immigration Act. At the conclusion of the secondary examination, the appellant was advised of his right to counsel to help him put forward his refugee claim.\n\nA so-called credible basis inquiry before a Canada Employment and Immigration Commission Tribunal (the Tribunal) was therefore convened to consider the appellant's admissibility to Canada and whether a full hearing before the Immigration and Refugee Board of Canada into the merits of his claim to Convention refugee status should be ordered. The notes taken by the immigration officer who conducted the secondary examination were entered as evidence at the inquiry. The Tribunal stated that the appellant was not a credible witness. The appellant was found to be inadmissible and not deserving of a determination of his claim by the Refugee Division, because his claim to refugee status did not have a credible basis. The appellant was therefore ordered excluded from Canada.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-9", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 9", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant obtained leave to apply to the Federal Court of Appeal for judicial review of the exclusion order. He challenged the validity of that order on the grounds that it was obtained through the use of evidence that was obtained in violation of his right to counsel under s. 10( b ) of the Charter . His application was dismissed and the exclusion order was upheld by the majority of the Court of Appeal.\n\nII. Relevant Statutory and Charter Provisions\n\nImmigration Act, R.S.C., 1985, c. I-2\n\n12. (1) Every person seeking to come into Canada shall appear before an immigration officer at a port of entry, or at such other place as may be designated by a senior immigration officer, for examination to determine whether that person is a person who shall be allowed to come into Canada or may be granted admission.\n\n. . .\n\n(3) Where an immigration officer commences an examination referred to in subsection (1), the officer may, in such circumstances as the officer deems proper,\n\n(a) adjourn the examination and refer the person being examined to another immigration officer for completion of the examination; and\n\n(b) detain or make an order to detain the person.\n\n(4) Every person shall answer truthfully all questions put to that person by an immigration officer at an examination and shall produce such documentation as may be required by the immigration officer for the purpose of establishing whether the person shall be allowed to come into Canada or may be granted admission.\n\n20. (1) Where an immigration officer is of the opinion that it would or may be contrary to this Act or the regulations to grant admission to a person examined by the officer or otherwise let that person come into Canada, the officer may detain or make an order to detain that person and shall", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-10", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 10", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "(a) subject to subsection (2), report that person in writing to a senior immigration officer; or\n\n(b) allow that person to leave Canada forthwith.\n\n23. ...\n\n(3) Where a senior immigration officer does not let a person come into Canada pursuant to section 22 and does not grant admission to or otherwise authorize the person to come into Canada pursuant to subsection (1) or (2), the officer may, subject to subsections (4) and (6),\n\n(a) detain or make an order to detain the person; or\n\n(b) release the person from detention subject to such terms and conditions as the officer deems appropriate in the circumstances, including the payment of a reasonable security deposit or the posting of a performance bond.\n\n(4) In the cases described in subsection (3), the senior immigration officer shall\n\n(a) subject to subsection (5), cause an inquiry to be held concerning the person referred to in subsection (3) as soon as is reasonably practicable; or\n\n(b) allow that person to leave Canada forthwith.\n\n30. (1) Every person with respect to whom an inquiry is to be held shall be informed of the person's right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and, subject to subsections (2) and (3), shall be given a reasonable opportunity, if the person so desires and at the person's own expense, to obtain counsel.\n\n43. (1) Before any substantive evidence is given at an inquiry, the adjudicator shall give the person who is the subject of the inquiry an opportunity to indicate whether or not the person claims to be a Convention refugee.\n\n94. (1) Every person is guilty of an offence who\n\n. . .", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-11", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 11", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "(g) refuses to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or inquiry under this Act or a hearing held pursuant to subsection 44(3);\n\n(h) knowingly makes any false or misleading statement at an examination or inquiry under this Act or a hearing held pursuant to subsection 44(3) or in connection with the admission of any person or the application for admission by any person;\n\nCanadian Charter of Rights and Freedoms\n\n7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.\n\n10. Everyone has the right on arrest or detention\n\n...\n\n(b) to retain and instruct counsel without delay and to be informed of that right;\n\nIII. Judgment of the Federal Court of Appeal, [1990] 3 F.C. 587\n\nMahoney J.A. (Pratte J.A. concurring)\n\nMahoney J.A. held that the appellant had not been detained in a manner contemplated by s. 10( b ) of the Charter prior to or during the secondary examination, and accordingly, that no obligation to inform him of his right to counsel arose. Mahoney J.A. noted that everyone, including a Canadian citizen, who seeks admission to Canada at a port of entry is detained until an immigration officer determines that it would not be contrary to the Immigration Act for that person to enter Canada. What distinguishes all such detainees from a detainee in the constitutional sense, Mahoney J.A. argued, is the fact that such persons have not been put in that position by an agent of the state assuming control over their movements, but by their own actions in seeking admission to Canada.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-12", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 12", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mahoney J.A. emphasized the fact that the immigration officer has a duty to enquire whether a person claiming to be a Convention refugee qualifies for admission. The court examined the questioning of the appellant and concluded that the secondary examination was routine, and was simply an extension of the routine questioning that took place at the primary examination line. Mahoney J.A. held that the appellant's state of mind at the time could not change the essentially routine character of the examination, which was in no way analogous to an inquisitorial strip search which would constitute a detention for constitutional purposes. Further, the delay in being interviewed did not, according to the court, constitute a factor attributable to a detention (at p. 608):\n\nAs I understand the terminology, the primary examination occurred, in this case, at what the [appellant] described as a \"little booth\". That, I take it, was one of the kiosks before which all deplaning international passengers line up. It seems clearly unreasonable to expect that the required examination of a Convention refugee claimant by an immigration officer could ever be satisfactorily conducted at the head of the primary examination line. The mere reference of such a person to a secondary examination and a delay in beginning it cannot, in my view, themselves lead to the conclusion that the person is detained in the constitutional sense. A delay of several hours may be attributable only to the numbers of persons requiring examination and officers available to do it or to the need for translation.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-13", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 13", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, Mahoney J.A. observed that the appellant was not, at the secondary examination, cajoled into making admissions which led to the subsequent finding that his claim lacked a credible basis. Rather, it was the omission of certain facts by the appellant at the examination which led to the adverse findings of credibility.\n\nAs a result, Mahoney J.A. held that no \"detention\" in the sense contemplated by s. 10( b ) of the Charter had occurred. Therefore, there was no obligation to advise the appellant of his right to counsel prior to the secondary examination and thus no violation of his s. 10(b) rights.\n\nHeald J.A. (dissenting)\n\nHeald J.A. took a very different view from that of the majority, concluding that the appellant had been \"detained\" within the meaning of s. 10(b). He emphasized the portions of Le Dain J.'s judgment in R. v. Therens, [1985] 1 S.C.R. 613, dealing with psychological compulsion as a form of detention for the purposes of s. 10(b), and concluded that the rationale of those comments applied to the appellant's case. The immigration officer who conducted the secondary examination, Heald J.A stated, was an agent of the state who assumed control over the appellant's movements; the appellant was not free to leave the room and go elsewhere. The interrogation and the appellant's answers became an integral part of the inquiry under the Immigration Act which resulted in the unconditional exclusion order. The appellant's uncontradicted affidavit evidence indicated that he had acquiesced in the deprivation of his liberty since he reasonably believed that he had no choice to do otherwise. These factors led Heald J.A. to conclude that, under Therens, the appellant was \"detained\" within the meaning of s. 10(b).", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-14", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 14", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "Heald J.A. also held that this Court's decision in R. v. Simmons, [1988] 2 S.C.R. 495, supported the appellant's claim. Heald J.A. rejected the majority's suggestion that the secondary examination was merely another form of routine questioning akin to that which every traveller is required to undergo upon seeking to enter Canada, and was held in Simmons not to constitute a detention in the constitutional sense. Rather, Heald J.A. found the appellant's situation to be analogous to the inquisitorial strip search which the accused in Simmons was forced to undergo and which Dickson C.J. in that case held to give rise to a s. 10(b) detention. Like the accused in Simmons, the appellant was taken out of the normal course and required to submit to interrogation; there was a \"reasonable perception of suspension of freedom of choice\" and an \"involuntary restraint of liberty\" as in Simmons.\n\nFollowing Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 202, Heald J.A. held that the word \"Everyone\" in s. 10(b) must include claimants for refugee status who are physically present in Canada. Heald J.A. stated that the rationale for s. 10(b) protection was just as compelling in this type of situation as in the criminal context: \"In the case of a refugee claimant such as this claimant, assuming that even a portion of his factual assertions are true, the consequences of his enforced return to Iran could well include incarceration, torture and even death\" (p. 600). Accordingly, Heald J.A. concluded that the appellant had been detained for the purposes of s. 10(b).", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-15", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 15", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "Heald J.A. further held that the appellant's s. 10(b) right to counsel had been violated. The violation was a substantive one since the examining officer's notes obtained in violation of the appellant's s. 10(b) rights were used at the ensuing inquiry to impeach the appellant's credibility. Heald J.A. concluded that, had the appellant had the assistance of counsel before and during the secondary examination and thus had an informed explanation as to the scheme of the refugee process under Canadian immigration law, it was likely that the entire character of the proceedings would have been altered.\n\nHeald J.A. concluded his analysis of the s. 10(b) issue in the following manner (at p. 601):\n\nSince the Supreme Court of Canada has indicated in Therens, supra, that the jurisprudence relative to police investigations in criminal matters may be extended to other agents of the State and since the majority of the Court in Simmons, supra has applied the Therens test to searches at ports of entry pursuant to the Customs Act, I think that an equally persuasive argument can be made in support of the right to counsel for refugee claimants at ports of entry. In my opinion, the circumstances at bar as summarized herein strongly support such a conclusion.\n\nHeald J.A. concluded that s. 1 of the Charter did not come into play in this case, since the Immigration Act neither expressly nor by necessary implication required the deprivation of the right to counsel. Thus, there was no limit \"prescribed by law\" on which to found a s. 1 analysis.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-16", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 16", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "With respect to the issue of the appropriate remedy for the Charter violation, Heald J.A. noted that counsel for the appellant did not request the exclusion of the notes, nor make any submissions in support of such a request. Therefore, Heald J.A. did not consider the question as to whether the court had the power on an application under s. 28 of the Federal Court Act , R.S.C., 1985, c. F‑7 , to order the exclusion of this evidence in this case, but stated that the decision of the credible basis tribunal should be set aside as well as the exclusion order which followed.\n\nIV. Issues\n\nThe appellant raises two issues on this appeal. First, was the appellant detained in the sense contemplated by s. 10( b ) of the Charter during his secondary examination at the airport, and did that examination therefore violate his right to counsel? In the alternative, was the appellant's right not to be deprived of his right to life, liberty and security of the person except in accordance with the principles of fundamental justice infringed by the failure to provide him with counsel at the port of entry?\n\nV. Analysis\n\n1. Was the Appellant Detained Within the Meaning of Section 10(b) of the Charter ?\n\nThe starting point in determining whether or not a \"detention\" has occurred for the purposes of s. 10(b) is the judgment of this Court in Therens, supra, at pp. 641-42:", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-17", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 17", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "The purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10 -- arrest and detention -- are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word \"detention\", s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.\n\nIn addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.\n\n. . . There can be no doubt that there must be some form of compulsion or coercion to constitute an interference with liberty or freedom of action that amounts to a detention within the meaning of s. 10 of the Charter .\n\nLe Dain J. went on to hold that the form of compulsion need not be physical. He stated, at p. 644:", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-18", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 18", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "[I]t is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.\n\nThe question raised by the present case is whether, in the context of immigration and refugee screenings at Canadian ports of entry, the element of state compulsion is sufficient to constitute \"detention\" for the purposes of s. 10(b).", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-19", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 19", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "The decision in Therens was applied by the British Columbia Court of Appeal in the context of customs inspections in R. v. Rodenbush (1985), 21 C.C.C. (3d) 423, at p. 426. In that case, customs officials had been alerted by American authorities regarding the two accused. When the accused stopped at the border, their car was searched, their suitcases taken inside for further examination, and the accused were taken into an inspection room to await the report on the suitcases. The Court of Appeal held that following Therens, \"there is no doubt in this case that when the two accused were asked to enter an interview room by customs officials they were \"detained\" within the meaning of s. 10 \" of the Charter .\n\nTherens was also applied in R. v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C.A.). The accused was interviewed by Canadian immigration authorities at Pearson International Airport. The immigration officer who interviewed the accused to determine if he was a genuine visitor to Canada doubted this, and prepared a report pursuant to s. 20 of the Immigration Act for the acting senior immigration officer. This officer reviewed the report and concluded that the accused should be detained pending an inquiry to determine whether he could be admitted to Canada. A similar conclusion was reached with respect to a co-accused, and a substantial amount of heroin was later found in the luggage of the co-accused during a customs search. The accused and his co-accused were then arrested and advised of their right to counsel.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-20", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 20", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finlayson J.A., for the Ontario Court of Appeal, relied on this Court's decision in Therens and the decision in R. v. Simmons (1984), 11 C.C.C. (3d) 193 (Ont. C.A.), and noted at p. 207 that \"throughout the immigration and customs procedures, a person is under the restraint that he will not be allowed to enter Canada unless there is satisfactory compliance with the questioning and the searches provided for by the relevant statutes such as the Customs Act . . . and the Immigration Act\". Finlayson J.A. concluded that such restraints do not by themselves constitute a detention in the constitutional sense.\n\nThe Court of Appeal rejected the Crown's concession that the accused had been detained by the senior immigration officer as soon as that officer decided to detain him under the Immigration Act. Finlayson J.A. stated at p. 207 that \"[s]urely there must be some action on the part of the immigration authorities to indicate that the restriction on an immigrant's freedom has gone beyond that required for the processing of his application for entry and has become a restraint of liberty such as that contemplated by Le Dain J.\" in Therens, supra. The court held that \"the [accused] was detained when [the senior immigration officer], having filled out the detained convocation letter, invited the [accused] and [his co-accused] into his office with the intention of advising them of his decision to detain them\". Finlayson J.A. apparently relied on the combination of a decision by the senior immigration officer to detain, and his action in calling the accused into his office to determine the point at which a detention had occurred for constitutional purposes.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-21", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 21", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court further considered the meaning of s. 10(b) \"detention\" in the case of Simmons, supra, in the context of customs inspections of travellers upon their arrival at Canadian ports of entry. In Simmons, the accused was routinely questioned by a customs officer, and was referred for a secondary inspection because she appeared overly nervous. The secondary inspector became suspicious and obtained permission from the Customs Superintendent to search the accused, who was taken to a search room and strip searched. Cannabis resin was found in bandages taped to the accused.\n\nDickson C.J. stated at p. 517 that there are three distinct types of border search which carry different constitutional implications:\n\nFirst is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X-rays, to emetics, and to other highly invasive means.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-22", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 22", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Chief Justice emphasized that each of the different types of search he identified raised different constitutional issues. He asserted that the more intrusive a search is, the greater the justification required and the constitutional protection afforded. Applying Therens, supra, Dickson C.J. went on to conclude that the accused was detained when she was required to undergo a strip search pursuant to the Customs Act. The accused could not have refused, and was clearly subject to external restraint as the customs officer had assumed control over her movements by a demand which had significant legal consequences.\n\nIn R. v. Jacoy, [1988] 2 S.C.R. 548, which was decided in conjunction with Simmons, supra, the RCMP had warned customs officials that the accused was attempting to import narcotics into Canada. When the accused arrived at the border, he was questioned by a customs officer, and then, because of the warning, was ordered to enter an interview room where he was interrogated and then frisked. A bag of cocaine was found in his socks, and he was arrested and informed of his right to counsel.\n\nDickson C.J. declined to decide whether the accused had been detained from the moment of arrival at the border, as the trial judge had held. However, following Simmons, Dickson C.J. held at pp. 557-58 that the accused\n\nwas detained when he was ushered into the interview room by [the customs inspectors]. At this point the customs inspectors had assumed control over the movement of the [accused] by a demand that had significant legal consequences for him. The evidence indicates that the customs officials intended to search the [accused] regardless of his responses to their questions.\n\n. . .", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-23", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 23", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, [the evidence] indicates that the decision to search the [accused], and to strip search him if necessary, had been made by the time the [accused] entered the interview room. The [accused] was clearly subject to restraint. He could not have refused to be searched and could not have continued on his way. I am therefore satisfied that the [accused] was detained, at least from this point onward, and should have been informed of his right to retain and instruct counsel.\n\nIt is important to recall that there is no right for non-citizens to enter or remain in Canada. In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733, Sopinka J. stated that \"[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country.\" See also Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 834, per La Forest J.\n\nThe questioning experienced by the appellant in this case is analogous to the first type of border search described by Dickson C.J. in Simmons, supra. It is well-established that the questioning of an individual by an agent of the state does not always give rise to a detention of constitutional import. In Simmons, supra, Dickson C.J. rejected the argument that, if a strip search is considered to be a detention with constitutional consequences, then all travellers passing through customs would be detained and therefore have a right to counsel under s. 10(b). He held, at p. 521:", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-24", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 24", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Therens, supra, Le Dain J. stated that not all communications with police officers and other state authorities will amount to detention within the meaning of s. 10( b ) of the Charter . This statement is equally valid with respect to the customs situation. I have little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basis do not constitute detention for the purposes of s. 10. There is no doubt, however, that when a person is taken out of the normal course and forced to submit to a strip search that person is detained within the meaning of s. 10.\n\nThe questioning which occurred in this case is similarly a routine part of the general screening process for persons seeking entry to Canada. As Dickson C.J. observed in Simmons at p. 528 in the context of the Charter protection against unreasonable search and seizure in s. 8,\n\n[p]eople do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation. . . .", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-25", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 25", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "Similarly, in Kwok, supra, at p. 207, the Ontario Court of Appeal held that the restraints necessary to determine whether persons presenting themselves for entry to Canada comply with the statutory requirements for entry do not constitute a detention within the meaning of s. 10(b). The Court of Appeal recognized that at a border the state has an interest in controlling entry into the country. Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context. These interests and expectations dictate that examination of a person for purposes of entry must be analyzed differently from the questioning of a person within Canada.\n\nIn this case, unlike in Kwok, there was no \"action on the part of the immigration authorities to indicate that the restriction on [the appellant's] freedom ha[d] gone beyond that required for the processing of his application for entry and ha[d] become a restraint of liberty such as that contemplated by Le Dain J.\" in Therens, supra. The questioning which occurred in this case was purely for the purpose of processing the appellant's application for entry and determining the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-26", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 26", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "Another factor identified in Simmons as indicating that no detention of constitutional consequence occurs during routine questioning is the absence of stigma. Clearly, there is no stigma associated with a referral to a secondary examination. For instance, Canadian citizens who are not able to demonstrate their identity are often referred to a secondary examination for confirmation of their citizenship. In addition, persons who are unable or unwilling to answer questions, applicants for permanent resident status, and Canadian citizens in possession of an emergency passport issued by a Canadian embassy official abroad to facilitate their return to Canada are habitually referred to a secondary examination. With respect to visitors in particular (in addition to persons claiming Convention refugee status), persons coming to seek or undergo medical treatment, persons in possession of emergency travel documents, persons intending to seek or take employment, persons intending to follow any course of study, and persons intending to remain more than six months are generally subject to a secondary examination referral.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-27", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 27", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "As Mahoney J.A. noted for the majority of the Federal Court of Appeal, it would be unreasonable to expect the screening process for all persons seeking entry into Canada to take place in the primary examination line. For those persons who cannot immediately produce documentation indicating their right of entry, the screening process will require more time, and a referral to a secondary examination is therefore required. There is, however, no change in the character of the examination simply because it is necessary for reasons of time and space to continue it at a later time in a different section of the processing area. The examination remains a routine part of the general screening process for persons seeking entry to Canada. It is clear from the wording of s. 12(3)(a) of the Immigration Act that a referral to a secondary examination is a continuation or completion of the initial examination which takes place in the primary inspection line. The facts of this case confirm that what took place was a continuation of the examination and not a transformation of it into a detention for constitutional purposes.\n\nThe questioning of the appellant was clearly distinguishable from an intrusive strip search. As Dickson C.J. stated at p. 517 in Simmons, supra, the degree of constitutional protection will be a function of the degree of intrusiveness of the search at issue. While the present case does not concern a search, but rather questioning, an analogy can be drawn. The questioning of the appellant was routine in nature, and concerned solely with his reasons for wishing to enter Canada, and the basis upon which he wanted to do so.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-28", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 28", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is important to note that neither the existence of a statutory duty to answer the questions posed by the immigration officer nor the existence of criminal penalties for both the failure to answer questions and knowingly making a false or misleading statement necessitates the conclusion that the appellant was detained within the meaning of s. 10(b). These provisions are both logically and rationally connected to the role of immigration officials in examining those persons seeking to enter the country. Indeed, they are required to ensure that border examinations are taken seriously and are effective. Both of these types of provisions also exist in the Customs Act, and as I have already discussed, this Court held in Simmons at p. 517 that it would be absurd to suggest that routine questioning by a customs officer constitutes a detention for the purposes of s. 10(b).\n\nFor these reasons, I conclude that the appellant was not detained at the port of entry within the meaning of s. 10( b ) of the Charter .\n\n2. Did the Appellant Have a Right to Counsel Under Section 7?\n\nIn Singh v. Minister of Employment and Immigration, supra, Wilson J. held that since the refugee claim determination process has the potential to deprive a Convention refugee of security of the person, the determination process must accord with the principles of fundamental justice. Wilson J. held at p. 210:\n\nGiven the potential consequences for the appellants of a denial of [Convention refugee] status if they are in fact persons with a \"well-founded fear of persecution\", it seems to me unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-29", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 29", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "Assuming without deciding that s. 7 is engaged in the circumstances of this case, what must be determined is whether the principles of fundamental justice include a right to counsel in these circumstances.\n\nThe relationship between s. 7 and the rights in ss. 8 to 14 of the Charter has been considered in various decisions of this Court. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 502-3, Lamer J. (as he then was) stated that ss. 8 to 14 of the Charter address specific deprivations of the right guaranteed by s. 7. He asserted that it \"would be incongruous to interpret s. 7 more narrowly than the rights in ss. 8 to 14\". This must be read in light of Lamer J.'s later discussion in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1178, in which he stated that \"it is neither wise nor necessary to subsume all other rights in the Charter within s. 7. A full and generous interpretation of the Charter that extends the full benefit of its protection to individuals can be achieved without the incorporation of other rights and freedoms within s. 7\". Lamer J. continued by noting that s. 1 does not apply to s. 7 because of its \"permissive\" nature. Therefore, he reasoned, by interpreting s. 7 so that it does not subsume the other rights in the Charter , individuals may be afforded greater protection since restrictions on their rights guaranteed by provisions other than s. 7 must be justified under s. 1. For that reason, Lamer J. concluded that \"it is desirable to maintain a conceptual distinction between the rights guaranteed by s. 7 and the other freedoms in the Charter \".", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-30", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 30", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "The concept of residual protection under s. 7 of the interests that the rights in ss. 8 to 14 are designed to protect was addressed in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 537. In that case, La Forest J. stated that he was \"prepared to agree that s. 7 of the Charter may in certain contexts at least provide residual protection to the interests the right is designed to protect that goes beyond the specific protection provided by ss. 11( c ) and 13 \". Therefore, La Forest J. concluded, the fact that the appellants in that case did not meet the requirements of ss. 11( c ) and 13 was not fatal to their claim. A similar position was taken by Wilson J., dissenting on other grounds, at p. 470.\n\nRecently, in R. v. Pearson, [1992] 3 S.C.R. 665, at p. 688, this Court held that when the plaintiff's complaint falls squarely within a highly specific guarantee in ss. 8 to 14 , then the Charter challenge must be determined according to that section, rather than under s. 7. See also R. v. Généreux, [1992] 1 S.C.R. 259, at p. 310. Applying this reasoning to the case at bar, there may be residual protection of the right to counsel under s. 7 in situations which do not fall within the parameters of \"arrest or detention\" in s. 10(b).", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-31", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 31", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is clear that the concept of fundamental justice includes at a minimum the notion of procedural fairness: Re B.C. Motor Vehicle Act, supra; R. v. Jones, [1986] 2 S.C.R. 284, at p. 322; and R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361. According to Singh at p. 213, the procedures set out in the Immigration Act must \"provide an adequate opportunity for a refugee claimant to state his case and know the case he has to meet\". Wilson J. noted, however, that procedural fairness may require different procedures depending on the context. This point was also made by La Forest J. in Lyons at p. 361:\n\nIt is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.\n\nSee also, Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96, per Sopinka J.; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, per L'Heureux-Dubé J.; and Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at p. 882.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-32", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 32", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "The further point was made in Lyons at p. 362 that \"s. 7 of the Charter entitles the [accused] to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined\"; see also R. v. Beare, [1988] 2 S.C.R. 387, at p. 412. In my view, the principles of fundamental justice do not require that the appellant be provided with counsel at the pre-inquiry or pre-hearing stage of the refugee claim determination process. While the right to counsel under s. 7 may apply in other cases besides those which are encompassed by s. 10(b), for example in cases involving the right to counsel at a hearing, it is clear from my earlier comments that the secondary examination of the appellant at the port of entry is not analogous to a hearing. Certainly, factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts. However, in an immigration examination for routine information-gathering purposes, the right to counsel does not extend beyond those circumstances of arrest or detention described in s. 10(b).", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-33", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 33", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "The requirement of a hearing for the adjudication of Convention refugee claims was discussed in Singh at pp. 213-14. Wilson J. held that where the question of whether the appellant's claim to Convention refugee status involves an issue of credibility, the appellant is entitled to an oral hearing: \"where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing\". An inquiry to determine whether the appellant's claim to Convention refugee status had a credible basis was held, and the appellant was informed of his right to obtain the services of and be represented by counsel at the inquiry pursuant to s. 30(1) of the Immigration Act. The appellant was in fact represented by counsel during the credible basis inquiry. The concern raised by Wilson J. in Singh related to the adequacy of \"the opportunity the [procedural] scheme provides for a refugee claimant to state his case and know the case he has to meet\" (p. 214). This concern is met in the present case by the requirement of a subsequent oral hearing.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-986-34", - "doc_type": "caselaw", - "act_code": "[1993] 1 SCR 1053", - "act_short": "Dehghani", - "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", - "marginal_note": "excerpt 34", - "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", - "part": "Supreme Court of Canada", - "division": "", - "text": "To allow counsel at port of entry interviews would, in the words of Heald J.A. in Montfort v. Minister of Employment and Immigration, [1980] 1 F.C. 478 (C.A.), at pp. 481-82, \"entail another \"mini-inquiry\" or \"initial inquiry\" possibly just as complex and prolonged as the inquiry provided for under the Act and Regulations\". This would constitute unnecessary duplication. The purpose of the port of entry interview was, as I have already observed, to aid in the processing of the appellant's application for entry and to determine the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. The principles of fundamental justice do not include a right to counsel in these circumstances of routine information gathering.\n\nVI. Conclusion\n\nAs I have concluded that the appellant's rights under ss. 10( b ) and 7 of the Charter were not violated, it is unnecessary to address the application of s. 24(2) of the Charter .\n\nFor the foregoing reasons, I would therefore dismiss the appeal.\n\nAppeal dismissed.", - "current_to": "1993-03-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" - }, - { - "id": "scc-1627-1", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 1–2", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Bastarache J. — This appeal raises two important questions relating to who may be admitted to Canada as a refugee: first, the proper standard of judicial review over decisions of the Immigration and Refugee Board; second, the meaning of the exclusion from refugee status of those who are “guilty of acts contrary to the purposes and principles of the United Nations”. That exclusion, in Article 1F(c) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, is incorporated into Canadian law by s. 2(1) of the Immigration Act, R.S.C., 1985, c. I-2, requiring a definition of that phrase with respect to the domestic law of Canada. I. Factual Background\n\nThe relevant facts in this case are not the subject of dispute. The appellant, Veluppillai Pushpanathan, left his native Sri Lanka in 1983 and spent time in India and France before arriving in Canada, via Italy, on March 21, 1985. He claimed Convention refugee status under the Immigration Act (formerly Immigration Act, 1976, S.C. 1976-77, c. 52). The basis of the claim was that he had previously been detained by the Sri Lankan authorities for his political activities and would likely suffer persecution if returned to his country of citizenship. This claim was never adjudicated, however, as the appellant was granted permanent residence status in May 1987 under an administrative program, and was entitled to remain in Canada on that basis.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-2", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 3", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "In December 1987, the appellant was arrested along with seven others on charges of conspiracy to traffic in a narcotic under s. 423(1)(d) of the Criminal Code, R.S.C. 1970, c. C-34, and s. 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1. The appellant pleaded guilty to the offence and was among five of the group who were convicted. The appellant himself sold brown heroin to an RCMP officer on at least three occasions; at the time of the arrest, the group to which Mr. Pushpanathan belonged possessed heroin with a street value of some $10 million. Mr. Pushpanathan was sentenced to eight years in prison, while his co-conspirators received between four- and ten-year terms each.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-3", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 4", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "On September 23, 1991, the appellant, then on parole, renewed his claim to Convention refugee status under the United Nations Convention Relating to the Status of Refugees (the “Convention”), as implemented by the Immigration Act (the “Act”). I describe the application as a renewal because it is unclear that the initial claim made in March 1985 was ever abandoned. On June 22, 1992, a conditional deportation order was issued by Employment and Immigration Canada against Mr. Pushpanathan under s. 27(1)(d) and s. 32.1(2) of the Act, which provide that a permanent resident who has been convicted of an offence for which a sentence of more than six months’ imprisonment has been imposed, may be deported. Since the deportation pursuant to those sections is conditional upon a determination that the claimant is not a Convention refugee, Mr. Pushpanathan’s claim to Convention refugee status was referred to the Convention Refugee Determination Division of the Immigration and Refugee Board. The Board decided that the appellant was not a Convention refugee. The Federal Court, Trial Division and the Federal Court of Appeal refused to reverse that decision on an application for judicial review. Mr. Pushpanathan appeals to this Court. II. Statutory Framework", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-4", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 5–7", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 2(1) of the Act defines a “Convention refugee” as: . . . any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person’s nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country . . . but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;\n\nThat article of the Convention reads: Article 1 Definition of the Term “Refugee” . . . F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.\n\nPersons described in these paragraphs cannot benefit from any of the protections of the Convention. They are denied refugee status from the outset.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-5", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 8", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The importance of the exclusions found in Article 1 can only be understood in the context of other sections of the Convention which describe the limited conditions under which bona fide refugees may be denied the benefits of their status: Article 33 Prohibition of Expulsion or Return (“Refoulement”) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-6", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 9–10", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The precise circumstances in which Article 33(2) is satisfied are defined with greater particularity in the Act: 53. (1) Notwithstanding subsections 52(2) and (3) [which describe the Minister’s deportation power], no person who is determined under this Act or the regulations to be a Convention refugee . . . shall be removed from Canada to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless (a) the person is a member of an inadmissible class described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; or (b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada.\n\nThe paragraph potentially applicable to the appellant’s situation is 19(1)(c): exclusion and removal Inadmissible Classes 19. (1) No person shall be granted admission who is a member of any of the following classes: . . . (c) persons who have been convicted in Canada of an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more;", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-7", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 11–14", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Other grounds justifying the refoulement of a refugee described in s. 19 include: conviction outside of Canada for an offence which, if committed in Canada, would be subject to a maximum term of imprisonment of ten years or more (19(1)(c.1)(i)); previous acts of terrorism, espionage, or subversion of democratic government, or grounds to believe that such acts will be committed in the future (19(1)(e) and (f)); grounds to believe that an individual will engage in violence in Canada (19(1)(g)); commission of war crimes or crimes against humanity (19(1)(j)); persons who constitute a danger to the security of Canada (19(1)(k)); and, membership or participation in a government engaged in terrorism, systematic or gross human rights violations, or war crimes or crimes against humanity (19(1)(l)).\n\nWhere one of these grounds is found to exist, the Minister must then make the added determination that the person poses a danger to the safety of the public or to the security of the country under s. 53(1)(a) or (b) respectively in order to justify refoulement.\n\nBy contrast, persons falling within Article 1F of the Convention are automatically excluded from the protections of the Act. Not only may they be returned to the country from which they have sought refuge without any determination by the Minister that they pose a threat to public safety or national security, but their substantive claim to refugee status will not be considered. The practical implications of such an automatic exclusion, relative to the safeguards of the s. 19 procedure, are profound.\n\nIt is against this background that the interpretation of the exclusion contained in Article 1F(c) of the Convention must be considered. III. Judicial History A. The Immigration and Refugee Board", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-8", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 15–16", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The panel of the Immigration and Refugee Board ruled that Mr. Pushpanathan was not a refugee by virtue of the exclusion clause in Article 1F(c): [1993] C.R.D.D. No. 12 (QL) (sub nom. D. (N.U.) (Re)). It also found that by trafficking in narcotics, the appellant had committed a crime against humanity under Article 1F(a). The parties agree that this finding was in error and have not argued the point in any of the appeals.\n\nCiting numerous United Nations conventions, the panel considered it “clear that for many years the United Nations has devoted a great deal of time and energy to the suppression of illicit traffic in drugs”. The panel accepted that suppression of this traffic is one of the purposes and principles of the United Nations, and that trafficking in heroin was an action against those purposes and principles. It also rejected the assertion that Article 1F(c) should apply only to state agents, or only to crimes committed outside the country of refuge. B. Application for Judicial Review to the Federal Court, Trial Division", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-9", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 17–18", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "An application for judicial review under s. 82.1(1) of the Act was made to the Federal Court, which dismissed the application: [1993] F.C.J. No. 870 (QL). McKeown J. found that the Board had “reasonably concluded” and that there were “serious reasons for considering” that the appellant was excluded by Article 1F(c) of the Convention. First, the court held that it was reasonable to conclude that initiatives to counter drug trafficking could be construed as part of the United Nations’ purposes and principles, although it suggested that, in some instances, the article might not apply because of the nature of the violation. Second, the court rejected the claim that Article 1F(c) should only apply to state actors. Third, the court found there was no room under Article 1F(c) for the weighing of the nature of the offence committed against the risk of persecution faced by the applicant.\n\nNotwithstanding these findings, the court did certify “that a serious question of general importance is involved”, giving the applicant a right of appeal to the Federal Court of Appeal under s. 83(1) of the Act. The court formulated the question in the following terms: “Is it an error of law for the Refugee Division [of the Immigration and Refugee Board] to interpret section F(c) of Article I of the United Nations Convention relating to the Status of Refugees to exclude from refugee status an individual guilty of a serious Narcotic Control Act offence committed in Canada?” C. Certified Question in the Federal Court of Appeal", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-10", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 19", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Federal Court of Appeal unanimously upheld the decision of the Trial Division: [1996] 2 F.C. 49. It resolved the question before the court into four issues (at p. 57): (1) Does Article 1F(c) of the Convention apply to acts committed by a refugee claimant in the country of refuge after his arrival there? (2) Can Article 1F(c) apply to a person already convicted of such acts? (3) Can Article 1F(c) apply to a person in respect of acts not committed on behalf of a state or government? (4) Is the act of conspiring to traffic in narcotics an act contrary to the purposes and principles of the United Nations?", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-11", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 20", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Strayer J.A., speaking for the court, began his analysis by considering the rules of interpretation which ought to apply in determining the scope of Article 1F(c). He observed that treaty interpretation rules may be used as an aid where, as here, a statute incorporates a treaty. He found that, in any event, since the treaty article is adopted verbatim in the statute, treaty interpretation rules certainly apply. Under this standard, he held that those “arguably more relaxed rules” allow for consideration of such factors as other provisions of the treaty, even those not implemented in, or incorporated by, the statute, and the travaux préparatoires. However, Strayer J.A. observed that “none of the rules of interpretation of statutes or treaties authorize a court to ignore completely the express terms of the language finally adopted in the treaty or the statute, in favour of vague expressions of intention derived from extrinsic sources which fail to demonstrate ambiguity in the text of the treaty or adopting statute” (p. 59). Finding the travaux préparatoires confusing and reflecting the intentions of only a small number of signatories, the court rejected their use as an interpretative guide, preferring to “place the most emphasis on the final text as approved” (p. 60). Moreover, he assumed that, like statutes, individual treaty provisions have some distinct purpose and meaning unless it is impossible to ascribe one. Finally, in considering the proper interpretative approach to the exclusions from refugee status, Strayer J.A. asserted that there was to be no presumption in favour of a narrow construction simply because the treaty was a human rights instrument.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-12", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 20–22", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Rather, exceptions to “the extraordinary right of refuge” were to be construed in a manner “most agreeable to justice and reason” (p. 61).\n\nWith this approach in place, the court found, first, that Article 1F(c) can apply to acts committed in the country of refuge; second, that it may apply to a person previously convicted for these acts; third, that it may apply to a person not acting on behalf of a state or government; and, fourth, that conspiring to traffic in narcotics is an act contrary to the purposes and principles of the United Nations. The appellant was therefore not a refugee under the exclusion clause contained in Article 1F(c). IV. Issues\n\nThree issues must be addressed for the determination of this appeal. First, what is the standard of review to be applied to the decision of the Immigration and Refugee Board? Second, how do the rules of treaty interpretation apply to the determination of the meaning of Article 1F(c)? Third, does the appellant’s act of drug trafficking fall within the definition of “acts contrary to the purposes and principles of the United Nations”? V. Analysis A. Standard of Review", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-13", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 23–24", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Neither in the decisions below, nor in the written submissions before this Court, was the issue of the proper standard of review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board addressed. McKeown J., at the Trial Division level, did find that the Board had “reasonably concluded” and that there were “serious reasons for considering” that the appellant was excluded by Article 1F(c) of the Convention, implying a standard of reasonableness. However, in certifying the question to be posed to the Court of Appeal, he asked whether the Board’s determination was an “error of law”, suggesting a standard of correctness. The Court of Appeal confined itself to answering the certified question. The court did not consider what standard of review had been applied below, nor whether that was the correct standard.\n\nNevertheless, s. 83(1) requires such an inquiry. It states: 83. (1) A judgment of the Federal Court — Trial Division on an application for judicial review . . . may be appealed to the Federal Court of Appeal only if the Federal Court — Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. [Emphasis added.]", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-14", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 25–26", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The certification of a “question of general importance” is the trigger by which an appeal is justified. The object of the appeal is still the judgment itself, not merely the certified question. One of the elements necessary for the disposition of an application for judicial review is the standard of review of the decision of the administrative tribunal whose decision is being reviewed, and that question is clearly in issue in this case. Reluctant as this Court is to decide issues not fully argued before it, determining the standard of review is a prerequisite to the disposition of this case.\n\nThe central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed. More specifically, the reviewing court must ask: “[W]as the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?” (Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, at para. 18, per Sopinka J.).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-15", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 27", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Since U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, this Court has determined that the task of statutory interpretation requires a weighing of several different factors, none of which are alone dispositive, and each of which provides an indication falling on a spectrum of the proper level of deference to be shown the decision in question. This has been dubbed the “pragmatic and functional” approach. This more nuanced approach in determining legislative intent is also reflected in the range of possible standards of review. Traditionally, the “correctness” standard and the “patent unreasonableness” standard were the only two approaches available to a reviewing court. But in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, a “reasonableness simpliciter” standard was applied as the most accurate reflection of the competence intended to be conferred on the tribunal by the legislator. Indeed, the Court there described the range of standards available as a “spectrum” with a “more exacting end” and a “more deferential end” (para. 30).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-16", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 28–29", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although the language and approach of the “preliminary”, “collateral” or “jurisdictional” question has been replaced by this pragmatic and functional approach, the focus of the inquiry is still on the particular, individual provision being invoked and interpreted by the tribunal. Some provisions within the same Act may require greater curial deference than others, depending on the factors which will be described in more detail below. To this extent, it is still appropriate and helpful to speak of “jurisdictional questions” which must be answered correctly by the tribunal in order to be acting intra vires. But it should be understood that a question which “goes to jurisdiction” is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis. In other words, “jurisdictional error” is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown. (1) Factors to Be Taken into Account\n\nThe factors to be taken into account in determining the standard of review have been canvassed in a number of recent decisions of this Court, and may be divided into four categories. (i) Privative Clauses", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-17", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 30–31", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard. However, the presence of a “full” privative clause is compelling evidence that the court ought to show deference to the tribunal’s decision, unless other factors strongly indicate the contrary as regards the particular determination in question. A full privative clause is “one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded” (Pasiechnyk, supra, at para. 17, per Sopinka J.). Unless there is some contrary indication in the privative clause itself, actually using the words “final and conclusive” is sufficient, but other words might suffice if equally explicit (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at pp. 331 and 333). At the other end of the spectrum is a clause in an Act permitting appeals, which is a factor suggesting a more searching standard of review.\n\nSome Acts will be silent or equivocal as to the intended standard of review. The Court found in Bradco that the submission of a dispute to a “final settlement” of an arbitrator was “somewhere between a full privative clause and a clause providing for full review by way of appeal” (pp. 331 and 333). Sopinka J. went on to examine other factors to determine that some degree of deference was owed to the arbitrator’s ruling. In essence, a partial or equivocal privative clause is one which fits into the overall process of evaluation of factors to determine the legislator’s intended level of deference, and does not have the preclusive effect of a full privative clause. (ii) Expertise", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-18", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 32", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Described by Iacobucci J. in Southam, supra, at para. 50, as “the most important of the factors that a court must consider in settling on a standard of review”, this category includes several considerations. If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded. In Southam, the Court considered of strong importance the special make-up and knowledge of the Competition Act tribunal relative to a court of law in determining questions concerning competitiveness in general, and the definition of the relevant product market in particular.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-19", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 33", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Nevertheless, expertise must be understood as a relative, not an absolute concept. As Sopinka J. explained in Bradco, supra, at p. 335: “On the other side of the coin, a lack of relative expertise on the part of the tribunal vis-à-vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference” (emphasis added). Making an evaluation of relative expertise has three dimensions: the court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise. Many cases have found that the legislature has intended to grant a wide margin for decision-making with respect to some issues, while others are properly subject to a correctness standard. Those cases are discussed in the fourth section below, the “Nature of the Problem”. The criteria of expertise and the nature of the problem are closely interrelated.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-20", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 34–35", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Once a broad relative expertise has been established, however, the Court is sometimes prepared to show considerable deference even in cases of highly generalized statutory interpretation where the instrument being interpreted is the tribunal’s constituent legislation. In Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, the B.C. Securities Commission’s definition of the highly general question of what constituted a “material change” under the Securities Act was subjected to an unreasonableness standard. Iacobucci J. stated that “[c]ourts have also enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise” (p. 590). This can include the interpretation of a statute which requires recourse to the treaty which it was intended to implement, as was the case in National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, where a patently unreasonableness test was applied to the interpretation of a treaty provision because the regulatory and economic nature of the determination counselled deference notwithstanding the generality of its application.\n\nIn short, a decision which involves in some degree the application of a highly specialized expertise will militate in favour of a high degree of deference, and towards a standard of review at the patent unreasonableness end of the spectrum. (iii) Purpose of the Act as a Whole, and the Provision in Particular", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-21", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 36", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "As Iacobucci J. noted in Southam, supra, at para. 50, purpose and expertise often overlap. The purpose of a statute is often indicated by the specialized nature of the legislative structure and dispute-settlement mechanism, and the need for expertise is often manifested as much by the requirements of the statute as by the specific qualifications of its members. Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes. Thus, in National Corn Growers, supra, at p. 1336, Wilson J. characterized the function of the board in question as one of “management”, partially because of the specialized knowledge of the members of the board, but also because of the range of remedies available upon a determination, including the imposition of countervailing duties by the Minister (at p. 1346). In Southam, the Court found (at para. 48) that the “aims of the Act are more ‘economic’ than they are strictly ‘legal’” because the broad goals of the Act “are matters that business women and men and economists are better able to understand than is a typical judge”. This conclusion was reinforced by the creation in the statute of a tribunal with members having a special expertise in those domains. Also of significance are the range of administrative responses, the fact that an administrative commission plays a “protective role” vis-à-vis the investing public, and that it plays a role in policy development; Pezim, supra, at p. 596.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-22", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 36", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "That legal principles are vague, open-textured, or involve a “multi-factored balancing test” may also militate in favour of a lower standard of review (Southam, at para. 44). These considerations are all specific articulations of the broad principle of “polycentricity” well known to academic commentators who suggest that it provides the best rationale for judicial deference to non-judicial agencies. A “polycentric issue is one which involves a large number of interlocking and interacting interests and considerations” (P. Cane, An Introduction to Administrative Law (3rd ed. 1996), at p. 35). While judicial procedure is premised on a bipolar opposition of parties, interests, and factual discovery, some problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties. Where an administrative structure more closely resembles this model, courts will exercise restraint. The polycentricity principle is a helpful way of understanding the variety of criteria developed under the rubric of the “statutory purpose”. (iv) The “Nature of the Problem”: A Question of Law or Fact?", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-23", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 37", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "As mentioned above, even pure questions of law may be granted a wide degree of deference where other factors of the pragmatic and functional analysis suggest that such deference is the legislative intention, as this Court found to be the case in Pasiechnyk, supra. Where, however, other factors leave that intention ambiguous, courts should be less deferential of decisions which are pure determinations of law. The justification for this position relates to the question of relative expertise mentioned previously. There is no clear line to be drawn between questions of law and questions of fact, and, in any event, many determinations involve questions of mixed law and fact. An appropriate litmus test was set out in Southam, supra, at para. 37, by Iacobucci J., who stated: Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear whether the dispute is over a general proposition that might qualify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future. This principle was also articulated by L’Heureux-Dubé J. in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at pp. 599-600, who sought to clarify the limitations of distinctions based on this criterion: In general, deference is given on questions of fact because of the “signal advantage” enjoyed by the primary finder of fact. Less deference is warranted on questions of law, in part because the finder of fact may not have developed any particular familiarity with issues of law. While there is merit in the distinction between fact and law, the distinction is not always so clear.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-24", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 37", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Specialized boards are often called upon to make difficult findings of both fact and law. In some circumstances, the two are inextricably linked. Further, the “correct” interpretation of a term may be dictated by the mandate of the board and by the coherent body of jurisprudence it has developed. In some cases, even where courts might not agree with a given interpretation, the integrity of certain administrative processes may demand that deference be shown to that interpretation of law. Her dissent in that case was founded essentially on her disapproval of the views of the majority on the characterization of the human rights tribunal as enjoying no expertise relative to courts in the understanding and interpretation of human rights Acts. Nevertheless, the principles discussed in the above quotation correctly state the law. This was confirmed in Pasiechnyk, at paras. 36 to 42, where the broad expertise of the Workers’ Compensation Board to determine all aspects of “eligibility” under that system was considered sufficiently broad to include the determination that the term “employer” included claims against the government for its alleged negligence in regulating the works of two companies which had led to workers’ injuries. Claims against the government as regulator were thus barred by virtue of the determination in issue. To allow such a claim “would undermine the purposes of the scheme” which was to “solve . . . the problem of employers becoming insolvent as a result of high damage awards” (para. 42). Such a finding falls squarely within Iacobucci J.’s description of a question of law: a finding which will be of great, even determinative import for future decisions of lawyers and judges.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-25", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 37–38", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The creation of a legislative “scheme” combined with the creation of a highly specialized administrative decision-maker, as well as the presence of a strong privative clause was sufficient to grant an expansive deference even over extremely general questions of law.\n\nKeeping in mind that all the factors discussed here must be taken together to come to a view of the proper standard of review, the generality of the proposition decided will be a factor in favour of the imposition of a correctness standard. This factor necessarily intersects with the criteria described above, which may contradict such a presumption, as the majority of this Court found to be the case in Pasiechnyk, supra. In the usual case, however, the broader the propositions asserted, and the further the implications of such decisions stray from the core expertise of the tribunal, the less likelihood that deference will be shown. Without an implied or express legislative intent to the contrary as manifested in the criteria above, legislatures should be assumed to have left highly generalized propositions of law to courts. (2) The Immigration Act", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-26", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 39", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Jurisdiction is granted to the Convention Refugee Determination Division of the Immigration and Refugee Board in the following terms: 67. (1) The Refugee Division has, in respect of proceedings under sections 69.1 and 69.2, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. 82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court — Trial Division. 83. (1) A judgment of the Federal Court — Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court — Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. (3) Previous Jurisprudence on the Standard of Review", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-27", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 40", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "This is the first time this Court has had the opportunity of considering the standard of review over decisions of the Immigration and Refugee Board. There is surprisingly scant discussion of the issue in previous Federal Court decisions. In most cases, a patent unreasonableness or “perverse or capricious” standard is applied. Those cases involved reviews of findings of credibility of witnesses by the Board: Yuen v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1045 (QL) (C.A.); Franco v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1011 (QL) (C.A.); Sornalingam v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 128, per MacKay J.; Vetter v. Canada (Minister of Employment and Immigration) (1994), 89 F.T.R. 17, per Gibson J.; Ismaeli v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 573 (QL) (T.D.), per Cullen J. In only one case was a correctness standard applied: Connor v. Canada (Minister of Citizenship and Immigration) (1995), 95 F.T.R. 66, per Reed J.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-28", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 41", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the thorough decision of Richard J. in Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.), however, the question before this Court is directly addressed. The case involved a Board determination that the applicants were not refugees because they had an “internal flight alternative”. Richard J. examines s. 82.1 of the Immigration Act and s. 18.1 of the Federal Court Act, which set out the possibility of an application for judicial review of a Board decision, and the grounds upon which such a decision may be reversed. He considers many of the controlling authorities of the day, including Pezim and Bradco. Although conceding that s. 67(1) of the Immigration Act is not a strong privative clause, he points out that many cases rely more on the specialized nature of the tribunal in question than on the presence or absence of a privative clause and notes: (a) that there is a limited structure for applying for judicial review; (b) that appeals from the Trial Division may only be taken when certified as a “serious question of general importance” under s. 83(1) of the Immigration Act; (c) that the structure of refugee determination is not typically adversarial in nature, and that members of the Board have wide powers as to production of evidence and fact-finding; (d) that there is no adverse party; (e) that the international law context, and the implementation of the Refugee Convention in Canadian law is highly complex and therefore requires specialized knowledge; (f) that the members of the Board are experts in their field and draw upon detailed, expert reports from the Documentation Centre of Employment and Immigration Canada. He relies extensively on a commentary by Professor James Hathaway on the Refugee Division, including, at p.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-29", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 41", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "758, the following excerpt: These evidentiary and contextual concerns make departure from traditional modes of adjudication imperative. We need expert, engaged, activist decision-makers who will pursue substantive fairness rather than technocratic justice. We must not view refugee claimants as opponents or threats, but rather as persons seeking to invoke a right derived from international law. It is the commitment to this kind of flexibility and sensitivity which led Parliament to abolish the previous court of record charged with refugee status determination, and to replace it with an expert tribunal with inquisitorial, non-adversarial jurisdiction. Finally, he distinguishes this Court’s decision in Mossop, supra, contending that the position of a human rights tribunal is different because its “determination is unrelated to issues of expertise or specialized knowledge and does not require a high degree of deference”. He goes on to say: “The questions at issue here are not broad questions involving general principles of statutory interpretation and legal reasoning, but the interpretation of a statutory definition within a specific international law and regulatory framework.” He concludes from all these considerations that the standard is patent unreasonableness, and that standard ought to apply even to “legal questions before it” (p. 761). On this basis, Richard J. rejected the application for judicial review, finding that the determination of “internal flight alternative” was not patently unreasonable. (4) The Proper Standard: Correctness", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-30", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 42", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Richard J.’s judgment in Sivasamboo, described above in some detail, presents admirably the case for a high level of deference to the decision of the Board. In my judgment, however, applying the pragmatic and functional analysis to the Act indicates that the decision of the Board in this case should be subjected to a standard of correctness.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-31", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 43", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” (emphasis added). The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice. Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board which are wrong in law, even clearly wrong in law, but not patently unreasonable? The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal — and inferentially, the Federal Court, Trial Division — is permitted to substitute its own opinion for that of the Board in respect of questions of general importance. This view accords with the observations of Iacobucci J. in Southam, supra, at para. 36, that a determination which has “the potential to apply widely to many cases” should be a factor in determining whether deference should be shown. While previous Federal Court decisions, including, arguably, the dispute in Sivasamboo, involve significant determinations of facts, or at the highest, questions of mixed fact and law, with little or no precedential value, this case involves a determination which could disqualify numerous future refugee applicants as a matter of law.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-32", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 43–44", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Indeed, the decision of the Board in this case would significantly narrow its own role as an evaluator of fact in numerous cases.\n\nIn short, s. 83(1) of the Act grants a statutory right of appeal based upon the criterion of “generality”. The principle described in Southam and applied in many other cases, which is really no more than an assumption as to legislative intent, is reinforced by explicit statutory inclusion.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-33", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 45", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Moreover, the Board appears to enjoy no relative expertise in the matter of law which is the object of judicial review here. A clear majority of this Court has found in a number of cases that deference should not be shown by courts to human rights tribunals with respect to “general questions of law” (Mossop, supra, at p. 585), even legal rules indisputably at the core of human rights adjudication. The categorical nature of this rule has been mitigated by observations in other cases, however. As La Forest J. stated for the entire Court in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at para. 29: That having been said, I do not think the fact-finding expertise of human rights tribunals should be restrictively interpreted, and it must be assessed against the backdrop of the particular decision the tribunal is called upon to make. . . . A finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate. . . . Given the complexity of the evidentiary inferences made on the basis of the facts before the Board, it is appropriate to exercise a relative degree of deference to the finding of discrimination, in light of the Board’s superior expertise in fact-finding, a conclusion supported by the existence of words importing a limited privative effect into the constituent legislation. [Emphasis added.] A similar approach is adopted by the majority in University of British Columbia v. Berg, [1993] 2 S.C.R. 353, at p. 370.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-34", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 46", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although the precise degree of deference which should be accorded to a human rights tribunal may still be open to question, the factors militating against deference in those cases apply with much greater force to the issues here. In those cases, the relationship relevant for considering the proper standard of review was that between a tribunal with specific expertise and experience in human rights adjudication, and provisions whose purpose is to protect human rights. The provision in question here shares that purpose. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p. 733, La Forest J. found the purpose underlying the Convention to be “the international community’s commitment to the assurance of basic human rights without discrimination”. As I will explain in the course of the next section, Article 1F(c) is at the core of this human rights purpose.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-35", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 47", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "But the Board’s expertise in matters relating to human rights is far less developed than that of human rights tribunals. The expertise of the Board is in accurately evaluating whether the criteria for refugee status have been met and, in particular, assessing the nature of the risk of persecution faced by the applicant if returned to his or her country of origin. Unlike the situation of a human rights tribunal, the relationship between the expertise and the provision in question here is remote. Only 10 percent of the members of the Board are required to be lawyers (s. 61(2)) and there is no requirement that there be a lawyer on every panel. While this may not be a liability for the purposes of assessing the risk of persecution of an applicant if returned to his or her country of nationality, it renders unthinkable reposing the broad definition of a basic human rights guarantee exclusively in the hands of the Board. Nor is there any indication that the Board’s experience with previous factual determinations of risk of persecution gives it any added insight into the meaning or desirable future development of the provision in question here. Unlike many cases involving determinations by human rights tribunals, this case does not involve any significant “impregnation” of legal principle with fact, as demonstrated by the ease with which the reviewing court was able to extract a question of general importance for the purposes of s. 83(1). Here, the legal principle is easily separable from the undisputed facts of the case and would undoubtedly have a wide precedential value. It bears repeating that with this determination, the tribunal is in fact seeking to stifle the application of its own expertise, rather than exercise it.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-36", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 47–49", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The factual expertise enjoyed by this administrative decision-maker does not aid it in the interpretation of this general legal principle.\n\nNor can the Board be characterized as performing a “managing” or “supervisory” function, as was found in Southam and National Corn Growers. The Board itself is not responsible for policy evolution. The purpose of the Convention — and particularly that of the exclusions contained in Article 1F — is clearly not the management of flows of people, but rather the conferral of minimum human rights’ protection. The context in which the adjudicative function takes place is not a “polycentric” one of give-and-take between different groups, but rather the vindication of a set of relatively static human rights, and ensuring that those who fall within the prescribed categories are protected.\n\nAdded to these indications of the intent of the legislator with regard to the development of general legal principles, is the absence of a strong privative clause. Indeed, read in the light of s. 83(1), it appears quite clear that the privative clause, such as it is, is superseded with respect to questions of “general importance”. As has been emphasized above, the “pragmatic and functional” approach allows differing standards of deference even within different sections of the same Act, and with regard to different types of decisions taken by the tribunal in question. Here, the wording of the privative clause goes hand in hand with the fourth factor of the functional and pragmatic analysis, namely, that determinations of abstract principles with wide application is a factor militating against deference.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-37", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 50–51", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "I conclude that a correctness standard applies to determinations of law by the Board. Sivasamboo dealt with review of a question of a significantly different nature and I wish to emphasize that I make no comment about the correctness of that decision, specific as it is to the facts presented there. B. Principles of Treaty Interpretation: Determining the Purpose of Article 1F(c)\n\nAlthough some non-governmental organizations advocated the determination of exclusion under Article 1F(c) of the Convention by the United Nations High Commissioner for Refugees, it was ultimately decided that each contracting state would decide for itself when a refugee claimant is within the scope of the exclusion clause (J. C. Hathaway, The Law of Refugee Status (1991), at pp. 214-15). Since the purpose of the Act incorporating Article 1F(c) is to implement the underlying Convention, the Court must adopt an interpretation consistent with Canada’s obligations under the Convention. The wording of the Convention and the rules of treaty interpretation will therefore be applied to determine the meaning of Article 1F(c) in domestic law (Ward, supra, at pp. 713-16).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-38", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 52", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Those rules are succinctly articulated in the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (“Vienna Convention”), which states: Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-39", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 52–53", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.\n\nThese rules have been applied by this Court in two recent cases, one involving direct incorporation of treaty provisions (Thomson v. Thomson, [1994] 3 S.C.R. 551) and another involving a section of the Immigration Act intended to implement Canada’s obligations under the Convention (Ward, supra). In the latter case, La Forest J. makes use of several interpretative devices: the drafting history of, and preparatory work on the provision in question; the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”), and previous judicial comment on the purpose and object of the treaty. Indeed, at p. 713, La Forest J. was willing to consider submissions of individual delegations in the travaux préparatoires, although he recognized that, depending on their content and on the context, such statements “may not go far” in supporting one interpretation over another.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-40", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 54", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although these rules of interpretation were accepted in general terms in the courts below and by the parties, there is substantial disagreement as to precisely what those rules mean in the context of Article 1F(c) of the Convention as incorporated by s. 2(1) of the Act. In deciding on the relative weight to be accorded the various interpretative sources made available under the Vienna Convention, Strayer J.A. found that the terms “purposes and principles of the United Nations” were relatively clear. He was also of the opinion that the travaux préparatoires were confused, ambiguous, or unrepresentative, and therefore, “completely unhelpful”. The UNHCR Handbook, which was accepted as a valid source under Article 31(3)(b) of the Vienna Convention, was considered “far from emphatic” as to the meaning of Article 1F(c). Finally, the categorization of the purpose of the Convention as a “‘human rights’ instrument” did not favour the applicant. Indeed, Strayer J.A. tacitly rejected this purpose as an interpretative guide by adopting the words of Robertson J.A. in Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), at p. 307: As persuasive as the commentaries may be, I am bound to approach the application of the exclusion clause, first, by reference to the existing jurisprudence of this Court and, second, by reference to the clear intent of the signatories to the Convention. Where, however, there is an unresolved ambiguity or issue, the construction most agreeable to justice and reason must prevail.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-41", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 55", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, the Federal Court of Appeal erred in dismissing the objects and purposes of the treaty, and in according virtually no weight to the indications provided in the travaux préparatoires. As will be seen later, the legislative history of Article 1F indicates that the signatories to the Convention wished to ascribe a special meaning to the words “purposes and principles of the United Nations” in the context of the Convention. In Ward, La Forest J. carefully used each of these interpretative tools as a means of understanding the objects and purposes of the Convention as a whole, and the particular provisions being interpreted. The extremely general words in Article 1F(c) are not so unambiguous as to foreclose examination of other indications of the proper scope of the provision. An examination of the purpose and context of the treaty as a whole, as well as the purpose of the individual provision in question as suggested by the travaux préparatoires, provide helpful interpretative guidelines.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-42", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 56", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The starting point of the interpretative exercise is, first, to define the purpose of the Convention as a whole, and, second, the purpose and place of Article 1F(c) within that scheme. In Ward, La Forest J., speaking for the entire Court at p. 709, stated that: International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. For this reason, James Hathaway refers to the refugee scheme as “surrogate or substitute protection”, activated only upon failure of national protection; see The Law of Refugee Status (1991), at p. 135. Using a textual analysis of the Convention itself, and taking account of the views of commentators, La Forest J., at p. 733, defines the purpose of the Convention with reference to the specific issue of the definition of refugee, which is precisely the issue in this case as well: Underlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows: Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-43", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 56–57", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "It sets out, in a general fashion, the intention of the drafters and thereby provides an inherent limit to the cases embraced by the Convention. Hathaway, supra, at p. 108, thus explains the impact of this general tone of the treaty on refugee law: The dominant view however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard. This theme sets the boundaries for many of the elements of the definition of “Convention refugee”.\n\nThe human rights character of the Convention is further confirmed by the “Objectives” section of the Act: 3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need . . . (g) to fulfil Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted; [Emphasis added.] This overarching and clear human rights object and purpose is the background against which interpretation of individual provisions must take place.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-44", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 58", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The purpose of Article 1 is to define who is a refugee. Article 1F then establishes categories of persons who are specifically excluded from that definition. The purpose of Article 33 of the Convention, by contrast, is not to define who is and who is not a refugee, but rather to allow for the refoulement of a bona fide refugee to his or her native country where he or she poses a danger to the security of the country of refuge, or to the safety of the community. This functional distinction is reflected in the Act, which adopts Article 1F as part of s. 2, the definitional section, and provides for the Minister’s power to deport an admitted refugee under s. 53, which generally incorporates Article 33. Thus, the general purpose of Article 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention. Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status. Although all of the acts described in Article 1F could presumably fall within the grounds for refoulement described in Article 33, the two are distinct. This reasoning must also be applied when considering whether the acts falling under Article 1F(c) must be acts performed outside the country of refuge, as argued by the appellant. In my opinion, the refoulement provisions cannot be invoked to read into Article 1F(c) any such limitation. Where geographical limitations were required, the Convention specifically provided for them, as evidenced by the terms of Article 1F(b). The relevant criterion here is the time at which refugee status is obtained.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-45", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 58", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "In other words, Article 1F(c) being referable to the recognition of refugee status, any act performed before a person has obtained that status must be considered relevant pursuant to Article 1F(c).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-46", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 59", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Some light may be shed on the purpose of Article 1F(c) as distinct from Article 1F(a) and F(b) from the travaux préparatoires and from the contemporaneous meaning of the terms used. The precursor of Article 1F stated: Article I Definition of the term “refugee” D. No contracting State shall apply the benefits of this Convention to any person who in its opinion has committed a crime specified in article VI of the London Charter of the International Military Tribunal or any other act contrary to the purposes and principles of the Charter of the United Nations. [Emphasis added.] (UN Doc. E/L. 82) The inclusion of the underlined words, which eventually were incorporated as Article 1F(c), generated considerable discussion in the Social Committee of the Economic and Social Council where the Convention was being negotiated. The Canadian, Chilean, and Pakistani delegates all expressed concern that the vague and potentially overbroad exclusionary clause would undermine the primary purpose of the Convention, and give states a means to easily reject individuals who deserved protection. The French delegate responded that the provision was aimed at “certain individuals who, though not guilty of war crimes, might have committed acts of similar gravity against the principles of the United Nations, in other words, crimes against humanity” (UN Doc. E/AC.7/SR.166, 22 August 1950, at p. 4). He was concerned that acts criminalized by the London Charter of the International Military Tribunal, 82 U.N.T.S. 280, would only be found to exist where a war had actually taken place. This would allow all manner of atrocities to be committed without the London Charter being violated simply because of the absence of military, interstate conflict.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-47", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 59", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The reference to the London Charter alone, therefore, would fail to include tyrants . . . guilty of acts contrary to the purposes and principles of the Charter, who had by such acts helped to create the fear from which the refugees had fled. The fact that they had themselves become suspect to their superiors and were in their turn a prey to the fear which they had themselves created, would . . . certainly not [entitle them] to the automatic benefit of the international protection granted to refugees. (E/AC.7/SR.166, at p. 6)", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-48", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 60", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "While a statement such as this one is far from authoritative in determining the purpose of what emerged as Article 1F(c), two points may be taken from these statements. The first is that the London Charter, in addition to describing crimes against the peace and war crimes, also described “crimes against humanity” such as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal” (as quoted in H. M. Kindred et al., International Law Chiefly as Interpreted and Applied in Canada (1993)), at p. 448 (emphasis added). As articulated in the London Charter, then, a crime against humanity was tied to the punishment of crimes of war and crimes in times of peace. Although as it finally emerged, Article 1F(a) actually spelled out the individual offences contained in the London Charter, including “a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”, there is a clearly articulated concern by the French delegate, of which he persuaded the other delegations, that the crimes against humanity described in the London Charter were confined to those related to the occurrence of a war. Though initially one of the objectors who considered the provision dangerously vague, the Canadian delegate eventually agreed that the individuals caught by Article 1F(c) and not otherwise identified by the London Charter were those “persons who had abused positions of authority by committing crimes against humanity, other than war crimes” (E/AC.7/SR.166, at p. 10 (emphasis added)).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-49", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 60–61", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "In short, the delegates whose minds were changed by the statement of the French delegate believed that they were identifying non-war-related crimes against humanity and that this was a distinct concept worthy of a separate provision, even if the acts falling into that category could not be clearly enumerated at that time.\n\nIt must also be noted that the principle of exclusion by reason of acts contrary to the purposes and principles of the United Nations was found in embryonic form in the International Refugee Organization Constitution which also sought to exclude “those who, since the end of the Second World War, had participated in any organization seeking the overthrow by armed force of a government of a UN member State, or in any terrorist organization; or who were leaders of movements hostile to their government or sponsors of movements encouraging refugees not to return to their country of origin” (G. S. Goodwin-Gill, The Refugee in International Law (2nd ed. 1996), at p. 108). This is consistent with the position of the British representative who stated that acts contrary to the purposes and principles of the UN comprised the subversion and overthrow of democratic regimes. Other participants were opposed to this interpretation, however, because it was seen to conflict with the right to self-determination (Hathaway, supra, at p. 228). The confusion probably explains why the UNHCR Handbook, at paras. 162-63, does not consider that Article 1F(c) introduces “any specific new element”.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-50", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 62", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Of course, the purposes and principles of the United Nations are set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations, Can. T.S. 1945 No. 7. But the statement found there is principally organizational; its general wording also allows for a dynamic interpretation of state obligations, which must be adapted to the changing international context. The principles set out in the UN Charter are in fact often developed in other international instruments and in decisions of the International Court of Justice, as well as in the jurisprudence of signatory states. Hathaway, supra, at p. 227, concludes that the multiple interpretations of Article 1F(c) “mirror its confused drafting history”. The article is a residual clause which the UNHCR Handbook suggests, “due to its very general character, should be applied with caution” (para. 163). In reading the travaux préparatoires, one is easily convinced that the delegates participating in the Social Committee meetings intended to give the words “purposes and principles of the United Nations” a narrower and more focused meaning than that which would naturally be inferred by reading the UN Charter. The work of the drafting subcommittee and the resolutions of various bodies that followed are evidence of an effort to create a consensus on the special meaning to be given to the terms used in Article 1F(c).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-51", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 63–64", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "What is crucial, in my opinion, is the manner in which the logic of the exclusion in Article 1F generally, and Article 1F(c) in particular, is related to the purpose of the Convention as a whole. The rationale is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees. As La Forest J. observes in Ward, supra, at p. 733, “actions which deny human dignity in any key way” and “the sustained or systemic denial of core human rights . . . se[t] the boundaries for many of the elements of the definition of ‘Convention refugee’”. This purpose has been explicitly recognized by the Federal Court of Appeal in the context of the grounds specifically enumerated in Article 1F(a) in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, where Linden J.A. stated (at p. 445): “When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status.”\n\nThis brings me back to the second point to be taken from the declarations of the French delegate referred to earlier. In the light of the general purposes of the Convention, as described in Ward, and elsewhere, and the indications in the travaux préparatoires as to the relative ambit of Article 1F(a) and F(c), the purpose of Article 1F(c) can be characterized in the following terms: to exclude those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non-war setting. C. What Acts Are “Contrary to the Purposes and Principles of the United Nations”?", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-52", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 65", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Determining the precise content of this phrase is significantly easier having defined a discrete purpose which Article 1F(c) was intended to play within the structure and purposes of the Convention. The parties before us presented various alternatives as to what should be included within the section and sought to do so with a high degree of particularity. In my view, attempting to enumerate a precise or exhaustive list stands in opposition to the purpose of the section and the intentions of the parties to the Convention. There are, however, several types of acts which clearly fall within the section. The guiding principle is that where there is consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognized as contrary to the purposes and principles of the United Nations, then Article 1F(c) will be applicable.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-53", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 66", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Several categories of acts fall within this principle. First, where a widely accepted international agreement or United Nations resolution explicitly declares that the commission of certain acts is contrary to the purposes and principles of the United Nations, then there is a strong indication that those acts will fall within Article 1F(c). The Declaration on the Protection of All Persons from Enforced Disappearance (GA Res. 47/133, 18 December 1992, Article 1(1)), the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (GA Res. 3452 (XXX), 9 December 1975, Article 2), and the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism (GA Res. 51/210, 16 January 1997, Annex, Article 2), all designate acts which are contrary to the purposes and principles of the United Nations. Where such declarations or resolutions represent a reasonable consensus of the international community, then that designation should be considered determinative.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-54", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 67", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Similarly, other sources of international law may be relevant in a court’s determination of whether an act falls within Article 1F(c). For example, determinations by the International Court of Justice may be compelling. In the case United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, p. 3, at para. 91, the court found: Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights. The International Court of Justice used even stronger language in the advisory opinion concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 16, at para. 131, finding that the policy of apartheid “constitute[s] a denial of fundamental human rights [and] is a flagrant violation of the purposes and principles of the Charter”.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-55", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 68", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Another important aspect of the exclusion under Article 1F(c) is the inference that violators of the principles and purposes of the UN must be persons in positions of power. This inference is drawn by the UNHCR Handbook at paras. 162-63 and in particular by the Canadian delegate to the Social Committee meetings of 1950 and 1951. While many commentators share this view (Hathaway, supra, at p. 229; A. Grahl-Madsen, The Status of Refugees in International Law (1966), vol. 1, at p. 286; and Kälin, Köfner and Nicolaus, in Goodwin-Gill, supra, at p. 110, note 162), the jurisprudence of signatory states is evolving along a different stream. Goodwin-Gill reports in his treatise, at p. 113, that the Tehran decision was the basis of the exclusion of a refugee under Article 1F(c) by Australian immigration authorities, indicating that it may be possible for non-state actors to be excluded by the provision. He contrasts this approach with that in France and Germany which appear to require that the acts be clothed in the authority of the state. Although it may be more difficult for a non-state actor to perpetrate human rights violations on a scale amounting to persecution without the state thereby implicitly adopting those acts, the possibility should not be excluded a priori. As mentioned earlier, the Court must also take into consideration that some crimes that have specifically been declared to contravene the purposes and principles of the United Nations are not restricted to state actors.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-56", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 69", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case, we are concerned with drug trafficking. There is no indication in international law that drug trafficking on any scale is to be considered contrary to the purposes and principles of the United Nations. The respondent submitted evidence that the international community had developed a co-ordinated effort to stop trafficking in illicit substances through numerous UN treaties, declarations, and institutions. It has not, however, been able to point to any explicit declaration that drug trafficking is contrary to the purposes and principles of the United Nations, nor that such acts should be taken into consideration in deciding whether to grant a refugee claimant asylum. Such an explicit declaration would be an expression of the international community’s judgment that such acts should qualify as tantamount to serious, sustained and systemic violations of fundamental human rights constituting persecution.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-57", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 70–71", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The second category of acts which fall within the scope of Article 1F(c) are those which a court is able, for itself, to characterize as serious, sustained and systemic violations of fundamental human rights constituting persecution. This analysis involves a factual and a legal component. The court must assess the status of the rule which has been violated. Where the rule which has been violated is very near the core of the most valued principles of human rights and is recognized as immediately subject to international condemnation and punishment, then even an isolated violation could lead to an exclusion under Article 1F(c). The status of a violated rule as a universal jurisdiction offence would be a compelling indication that even an isolated violation constitutes persecution. To that end, if the international community were ever to adopt the Draft Statute of the International Criminal Court, UN Doc. A/CN.4/L.491/Rev.2, which currently includes trafficking in narcotics within its jurisdiction, along with war crimes, torture and genocide, then there would be a much greater likelihood of a court being able to find a serious violation of human rights by virtue of those activities.\n\nA serious and sustained violation of human rights amounting to persecution may also arise from a particularly egregious factual situation, including the extent of the complicity of the applicant. Assessing the factual circumstances of a human rights violation as well as the nature of the right violated would allow a domestic court, for example, to determine on its own that the events in the Tehran hostage-taking warrant exclusion under Article 1F(c).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-58", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 72", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case there is simply no indication that the drug trafficking comes close to the core, or even forms a part of the corpus of fundamental human rights. The respondent sought to bring the Court’s attention to a novel category of international offence devised by M. C. Bassiouni called “crimes of international concern” (International Criminal Law, vol. 1, Crimes (1986), at pp. 135-63). Those “crimes” evince certain characteristics indicating that the international community does view their violation as particularly serious and worthy of immediate sanction; however, the bar appears to be set too low, including such categories of offence as “interference with submarine cables” and “environmental protection”, as well as drug trafficking and eight other categories.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-59", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 73", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is also necessary to take account of the possible overlap of Article 1F(c) and F(b) with regard to drug trafficking. It is quite clear that Article 1F(b) is generally meant to prevent ordinary criminals extraditable by treaty from seeking refugee status, but that this exclusion is limited to serious crimes committed before entry in the state of asylum. Goodwin-Gill, supra, at p. 107, says: With a view to promoting consistent decisions, UNHCR proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery. The parties sought to ensure that common criminals should not be able to avoid extradition and prosecution by claiming refugee status. Given the precisely drawn scope of Article 1F(b), limited as it is to “serious” “non-political crimes” committed outside the country of refuge, the unavoidable inference is that serious non-political crimes are not included in the general, unqualified language of Article 1F(c). Article 1F(b) identifies non-political crimes committed outside the country of refuge, while Article 33(2) addresses non-political crimes committed within the country of refuge. Article 1F(b) contains a balancing mechanism in so far as the specific adjectives “serious” and “non-political” must be satisfied, while Article 33(2) as implemented in the Act by ss. 53 and 19 provides for weighing of the seriousness of the danger posed to Canadian society against the danger of persecution upon refoulement.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-60", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 73–74", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "This approach reflects the intention of the signatory states to create a humanitarian balance between the individual in fear of persecution on the one hand, and the legitimate concern of states to sanction criminal activity on the other. The presence of Article 1F(b) suggests that even a serious non-political crime such as drug trafficking should not be included in Article 1F(c). This is consistent with the expression of opinion of the delegates in the Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees (1989), vol. III, at p. 89.\n\nThere is no rational connection between the objectives of the Convention and the objectives of the limitation on Article 1F(c) as stated by the respondent. Until the international community makes clear its view that drug trafficking, in one form or another, is a serious violation of fundamental human rights amounting to persecution, then there can be no rationale for counting it among the grounds of exclusion. The connection between persecution and the international refugee problem is what justifies the definitional exclusions in Article 1F(a) and F(c). Acts which fall short of persecution may well warrant refoulement under Article 33, and the Act has provided a procedure for determination of the merits of that issue. The a priori denial of the fundamental protections of a treaty whose purpose is the protection of human rights is a drastic exception to the purposes of the Convention as articulated in Ward, supra, and can only be justified where the protection of those rights is furthered by the exclusion. VI. Disposition", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-61", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 75–77", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Even though international trafficking in drugs is an extremely serious problem that the United Nations has taken extraordinary measures to eradicate, in the absence of clear indications that the international community recognizes drug trafficking as a sufficiently serious and sustained violation of fundamental human rights as to amount to persecution, either through a specific designation as an act contrary to the purposes and principles of the United Nations (the first category), or through international instruments which otherwise indicate that trafficking is a serious violation of fundamental human rights (the second category), individuals should not be deprived of the essential protections contained in the Convention for having committed those acts. Article 33 and its counterparts in the Act are designed to deal with the expulsion of individuals who present a threat to Canadian society, and the grounds for such a determination are wider and more clearly articulated. It is therefore clear that my determination of the scope of Article 1F(c) of the Convention, as incorporated in domestic law by s. 2(1) of the Act, does not preclude the Minister from taking appropriate measures to ensure the safety of Canadians.\n\nIn my view, the appellant’s conspiring to traffic in a narcotic is not a violation of Article 1F(c).\n\nI would allow the appeal and return the matter to the Convention Refugee Determination Division for consideration under Article 33 of the Convention, and ss. 19 and 53 of the Act, if the respondent chooses to proceed. The reasons of Cory and Major JJ. were delivered by", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-62", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 78–81", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Cory J. (dissenting) -- Mr. Pushpanathan was a member of a group convicted of trafficking in heroin with a street value of $10 million. Obviously this trafficking was on a large scale. He was sentenced to eight years which confirmed his role as one of the ringleaders.\n\nThe United Nations considers heroin to be the most dangerous of illicit drugs. Trafficking in that drug is indeed a despicable crime. It will be demonstrated that its consumption leads consumers, almost inexorably, to commit crimes to satisfy their addiction. The potential profits are so high that it frequently leads to criminal activity and money laundering. It can lead to corruption of customs officials, police and judicial officers. It is a crime with such grievous consequences that it tears at the very fabric of society.\n\nThus it is apparent that Pushpanathan was convicted of a very serious crime that has devastating consequences. The grave nature of the crime cannot be readily discounted and forgotten. However even the basest criminal is entitled to exercise all the rights to which he is entitled.\n\nIt is necessary to review and consider the effects of drug trafficking in Canada and the world, but before doing so I wish to confirm my agreement with Bastarache J. that the applicable standard of review is one of correctness. I. Standard of Review", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-63", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 82–83", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "What constitutes an act contrary to the purposes and principles of the United Nations for the purposes of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”), is a question of law. While the Immigration and Refugee Board must be accorded some deference in its findings of fact, that deference should not be extended to a finding on a question of law. The Board cannot be said to have any particular expertise in legal matters. Therefore the issue is whether the Board’s decision on the question of law was correct. II. Illicit Drug Trafficking: Background A. Impact in Canada (1) Incidence of Illicit Drug Use and Trafficking in Canada\n\nIllicit drug use and trafficking is a serious problem in Canada and those that traffic in dangerous drugs must be a very real concern for all Canadians. Recent information shows that there has been an increase both in the use of illicit drugs and in the incidence of drug offences. According to a report of the Canadian Centre on Substance Abuse, illicit drug use increased substantially from 1993 to 1994: cannabis from 4.2 to 7.4 percent; cocaine from 0.3 to 0.7 percent; LSD, speed or heroin from 0.3 to 1.1 percent (D. McKenzie, Canadian Profile: Alcohol, Tobacco & Other Drugs (1997), at p. 91).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-64", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 84–85", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The number of drug‑related incidents reported annually has increased in each of the past several years. In 1993, 56,811 incidents were reported (Canadian Centre for Justice Statistics, Canadian Crime Statistics 1993, at p. 52); in 1994, that number had increased to 60,594 (Canadian Centre for Justice Statistics, Canadian Crime Statistics 1994, at p. 16). The latest reports show another increase from 1995 to 1996; there were 65,106 drug‑related incidents in 1996, which represented a 4.4 percent increase over the previous year (Juristat, vol. 17, No. 8, 1997, at p. 10). At the end of 1996, there were 2,899 drug offenders incarcerated in federal institutions, constituting 21.3 percent of the federal prison population (L. L. Motiuk and R. L. Belcourt, Research Branch, Correctional Service of Canada, Homicide, Sex, Robbery and Drug Offenders in Federal Corrections: An End‑of‑1996 Review, at p. 13). (2) Drugs and Crime\n\nDrug offences such as possession and trafficking are only part of the link between the drug trade and criminality. There is an established connection between heavy drug use and crimes motivated by the need to finance a drug habit (Juristat, vol. 14, No. 6, 1994, at p. 5). A Canadian survey of federal inmates showed that 40 percent of men were drug users and half of those had engaged in criminal activity to get drugs. For women, the ratio is even greater: 25 percent of female inmates in Canada committed their crimes solely to obtain drugs (ibid., p. 12).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-65", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 86–88", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "In addition, the illegal drug trade is known to involve violence as a means of resolving disputes and maintaining discipline (ibid., p. 9). In 1996, 56 homicides, that is to say one in ten, were reported by police to be drug‑related; this was said to be similar to averages for other years (Juristat, vol. 17, No. 9, 1997, at p. 10).\n\nFinally, it is well established that the consumption of licit and illicit drugs increases the rate of criminality generally, not just offences directly related to drugs. Among a sample of federal male inmates, over half were under the influence of alcohol or other drugs when they committed at least one of their crimes (Juristat, vol. 14, supra, at p. 11). Seventy‑one percent of those of those who had consumed drugs said they would not have committed the crime if they had not taken the drugs (ibid., p. 12). Thus, as might be expected, U.S. research indicates that drug abusers are more likely to be re‑arrested than non‑abusers (Bureau of Justice Statistics, Drugs and Crime Facts, 1994, at p. 26). Furthermore, research indicates that from 30 to 50 percent of those convicted of drug offences re‑offend (ibid.; Canadian Centre for Justice Statistics, An Examination of Recidivism in Relation to Offence Histories and Offender Profiles (1993), at p. 21).\n\nIn the face of all of this evidence, it is impossible to underestimate the harm that is done to Canadian society in the form of criminal activity, often violent, by the trafficking of illicit drugs. Unfortunately, there are also other costs associated with illicit drug trafficking and use, which reflect the widespread harm caused by these activities. (3) Social and Economic Costs of Illicit Drug Use", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-66", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 89–91", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity.\n\nIn Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, The Costs of Substance Abuse in Canada: Highlights (1996), at p. 2). Of this amount, the cost flowing from illicit drugs is $1.4 billion (McKenzie, supra, at p. 227). In 1992 there were 732 deaths, 7,095 hospitalizations and 58,571 hospital days in Canada attributable to illicit drugs (ibid., p. 91). Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims (Costs of Substance Abuse in Canada, supra, at p. 6).\n\nThese significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world. B. International Impacts (1) Extent of the Problem", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-67", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 92", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Global consumption of illicit drugs is difficult to estimate, due to the lack of international information gathering facilities and the difficulty of comparing national data. It is clear, however, that illicit drug consumption increased throughout the world in the 1980s and 1990s, and the upward trend is thought likely to continue (Commission on Narcotic Drugs, Economic and Social Consequences of Drug Abuse and Illicit Trafficking: An Interim Report, UN Doc. E/CN.7/1995/3, 9 November 1994, at p. 14). The problem of drug abuse has also been increasing in severity as well as in scope. There has been an increase not only in the absolute number of drug abusers, but also in instances of heroin and amphetamine use, and intravenous drug abuse. Heroin, opium and cocaine are increasingly being injected, with all of the increased health risks that injection entails (Commission on Narcotic Drugs, Reduction of Illicit Demand for Drugs: Prevention Strategies Including Community Participation ‑‑ World situation with respect to drug abuse: Report of the Secretariat, UN Doc. E/CN.7/1995/5, 10 January 1995, at pp. 3‑4). About 20 percent of the world’s HIV/AIDS population inject drugs (UN International Drug Control Programme, World Drug Report (1997), at p. 91). Especially disturbing are reports of increasing numbers of young people abusing drugs. For example, in Pakistan the proportion of people who began using heroin between the ages of 15 and 20 has doubled to almost 24 percent; in the U.S., use of marijuana and cocaine amongst eighth grade students is reported to have doubled between 1991 and 1994 (ibid., p. 86).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-68", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 93–95", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Production of illicit drugs has significantly increased over the past 10 to 15 years. Countries traditionally associated with the production of drugs have also become major consumers, and are now part of the global expansion of markets for illicit drugs (World situation with respect to drug abuse, supra, at p. 3). It is estimated that over 300 tonnes of heroin were produced annually in the 1990s, and enough coca leaf was produced in 1996 to yield 1,000 tonnes of cocaine (World Drug Report, supra, at p. 18).\n\nConservative estimates of the annual global turnover of the illicit drug industry are from US$400 to 500 billion. This is approximately one tenth of total international trade, and seven to eight times the amount spent on official development assistance each year (Economic and Social Consequences of Drug Abuse and Illicit Trafficking, supra, at p. 8). The drug trade has become increasingly organized, especially for cocaine and heroin, and is controlled by organized groups and in some cases cartels. At the upper levels, control is highly centralized (World Drug Report, supra, at p. 123). (2) Economic and Social Costs of Illicit Drug Use and Trafficking\n\nThe economic costs of drug trafficking and abuse are even greater in countries other than in Canada. They include enforcement, legal, prevention, care and rehabilitation costs. In all parts of the world, drug abuse reduces productivity (Economic and Social Consequences of Drug Abuse and Illicit Trafficking, supra, at p. 19). In drug‑producing countries, some employment is generated, but less than is generally believed (ibid.). Drug money is often invested in sectors that create or maintain unproductive jobs (ibid., p. 20).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-69", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 96–97", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Other economic costs can include inflated costs of food and real estate as a result of drug cultivation and the investment of illicit profits in land (ibid., p. 24). This inflation causes increased hardship for local communities. Furthermore, income disparities in society are increased by both production and consumption. The hierarchical nature of the illicit drug industry means that profits are received by only a small number of people. At the top level, the entire industry is controlled by a few individuals (ibid., p. 25).\n\nIn the short term, drug exports appear to be beneficial to some countries by generating much‑needed foreign exchange, in some cases as much as half the amount of total legal exports. Despite the short term beneficial effects on local economies, the long term effects are negative. The failure to develop alternative exports creates a dependence on illicit drug exports and a consequent vulnerability (ibid., pp. 25‑26).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-70", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 98–99", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is estimated that some US$300 to 500 billion per year from the illicit drug industry are available internationally for laundering. These amounts are staggering when compared to the gross national products of many developing countries (ibid., p. 26). Investment of illicit proceeds and laundering results in significant distortions of national economies. In states in transition that are rapidly moving state‑owned assets into the private sector, problems occur when those assets become the target of criminal finance. In all parts of the world, the presence of large amounts of illicit drug money invested in an economy makes macro‑economic policy and management extremely difficult. Drug trafficking and drug related violence require increases in state budgets for enforcement at the expense of other social needs, and jeopardize foreign investment by creating insecurity (ibid., p. 28).\n\nThe social impacts of illicit drug use and trafficking are also significant. Substance abuse and the breakdown of families and communities are linked together in a downward spiral. Disintegration of the family contributes to illicit drug abuse, and abuse in turn strains families and tends to make them dysfunctional (ibid., p. 29). In producing areas, communities are subject to intimidation and brutality from both the criminal organizations and the police or army; tribal, community and co‑operative rural organizations are broken down under pressure from traffickers and associated terrorist groups (UN Department of Public Information, Drug Trafficking and the World Economy (1990); quoted in M. C. Bassiouni, “Critical Reflections on International and National Control of Drugs” (1990), 18 Denv. J. Int’l L. & Pol’y 311, at p. 327).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-71", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 100–103", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The negative impact of drug abuse on health, including increased mortality and a range of drug‑related health problems, is another significant social cost (Economic and Social Consequences of Drug Abuse and Illicit Trafficking, supra, at pp. 29‑30). The demonstrated links between drug addiction, needle‑sharing, prostitution, AIDS and other diseases create additional worldwide dangers for health (ibid., p. 32).\n\nThe use of drugs has a detrimental impact on education; again this is a vicious circle in which drug use results in impaired performance and problems such as the loss of self‑esteem from lack of educational achievement contribute to drug consumption (ibid., p. 33).\n\nFinally, there is growing evidence of serious detrimental impacts on the environment both from drug cultivation and processing (e.g., the use and dumping of hazardous chemicals), and from efforts to curtail these activities (such as the spraying of herbicides to eradicate illicit cultivation) (ibid., pp. 33‑34). (3) Links to Criminal Activity and Corruption\n\nDrug‑related crime is a serious problem in producer and consumer countries alike. The incidence of criminal activity increases with drug addiction, as users engage in property crimes and prostitution to support their habits. Violent conflicts among trafficking groups significantly increase the incidence of violence in some areas (ibid., p. 35).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-72", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 104–105", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Illicit drug use and trafficking has a two‑fold impact on law enforcement. First, it diverts time, energy and resources away from other responsibilities. Second, especially in the case of a well‑organized industry, there is a risk of police corruption. Criminal activity and funds related to drug trafficking also have a broader corrupting impact on government and civil society. In some countries the money available from the drug trade seriously undermines the democratic process through the purchasing of protection, influence and votes. There are obvious dangers of corruption in the judicial system as well. Further the presence of large amounts of illegitimate funds also has the potential to destabilize national economies, which in turn renders the political system vulnerable and dependent (ibid., p. 36). (4) Threats to International Political and Economic Stability\n\nThe established links between organized crime, terrorist organizations, arms dealing and drug trafficking compound the risks to security in individual countries and in the international community. According to the United Nations International Drug Control Programme, “[i]n situations of armed conflict, illicit drug revenues ‑‑ or the drugs themselves ‑‑ are regularly exchanged for arms” (World Drug Report, supra, at p. 17). In some countries, such as Peru, trafficking organizations have formed alliances with guerrilla groups to ensure supplies of materials for processing (ibid., p. 128). The financial and military power of these organizations threatens to undermine the political and economic stability of numerous countries, and indeed the entire international community.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-73", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 106–107", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The combined effects of the trade in illicit drugs have led one author to conclude that drug profits “do more to corrupt social systems, damage economies and weaken moral and ethical values than the combined effects of all other forms of crime. . . . The corrupting reach into government officials, politicians and the business community further endangers the stability of societies and governmental processes, and ultimately threaten political stability and even world order” (Bassiouni, supra, at pp. 323‑24). C. The United Nations and the Control of Illicit Drugs (1) United Nations Activity in the Area of Drug Control\n\nThe grave concern of the international community relating to the use and trafficking of illicit drugs predated the establishment of the United Nations, and drug control activities have continued since its founding. The consequences of trafficking in opium at the beginning of the century led to cooperative international efforts to control it. The International Opium Convention, 8 L.N.T.S. 187, was adopted in 1912. Since that time, over a dozen multilateral instruments as well as many bilateral agreements and innumerable other documents have been developed by the international community, under the auspices first of the League of Nations and then of the United Nations. Indeed actions aimed at controlling the traffic in drugs were taken upon the founding of the United Nations.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-74", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 108–109", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Recent UN activity in this area demonstrates an ever increasing concern with illicit drug trafficking and its associated ills. There are three major UN bodies that have been established to deal with drug control. The Commission on Narcotic Drugs (“CND”), a commission of the Economic and Social Council established in 1946, is the central policy‑making body within the UN on drug‑related matters. The United Nations International Drug Control Programme is the UN agency responsible for coordinating activities in this area. The International Narcotics Control Board, established in 1968, is responsible for administering treaties relating to the international control of drugs, overseeing their implementation and promoting compliance.\n\nUntil the 1980s, the most important international instruments were the Single Convention on Narcotic Drugs, 1961, 30 March 1961, 520 U.N.T.S. 204, amended by a Protocol in 1972 (Protocol Amending the Single Convention on Narcotic Drugs, 1961, 25 March 1972, 976 U.N.T.S. 3), and the Convention on Psychotropic Substances, 21 February 1971, 1019 U.N.T.S. 175. The Single Convention on Narcotic Drugs, 1961 consolidated most of the previous multilateral treaties on drugs. Both the Single Convention on Narcotic Drugs, 1961 and the Convention on Psychotropic Substances focussed on the supply and movement of drugs, and attempted to establish a network of administrative controls. More than 116 narcotic drugs and 111 psychotropic substances are controlled by these conventions. Canada is a signatory to both conventions (Multilateral Treaties Deposited with the Secretary‑General, United Nations, New York (ST/LEG/SER.E), as available on http://www.un.org/Depts/Treaty on December 4, 1997).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-75", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 110", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "By the 1980s, however, it had become apparent that the seriousness of the problem had continued to increase and that the measures taken up to that time were inadequate: . . . as the power of the drug cartels became more pervasive and their methods increasingly sophisticated, the need for new and more stringent international measures became clear. Within the United Nations, the Commission on Narcotic Drugs became the focus of efforts to formulate and adopt a more comprehensive, long‑range approach to the drug problem at the international level. (D. P. Stewart, “Internationalizing The War on Drugs: The UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances” (1990), 18 Denv. J. Int’l L. & Pol’y 387, at p. 390.) In 1981, an International Drug Abuse Control Strategy and programme of action were adopted (GA Res. 36/168, 16 December 1981), which targeted both use and trafficking. In 1984, the United Nations General Assembly passed a unanimous resolution asking that the CND be requested to begin preparation of a new convention (GA Res. 39/141, 14 December 1984). The CND began work on the draft convention in the following year (Stewart, supra, at p. 390), and this work continued, with the encouragement of the General Assembly, for the next few years (see, e.g., GA Res. 40/120, 13 December 1985).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-76", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 111", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "An International Conference on Drug Abuse and Illicit Trafficking attended by delegates from 138 states took place in Vienna in 1987 (Report of the International Conference on Drug Abuse and Illicit Trafficking, UN Doc. A/CONF.133/12, at p. 97). Two major documents were adopted at the conference: the conference Declaration and the Comprehensive Multidisciplinary Outline of Future Activities in Drug Abuse Control (ibid., pp. 88 and 3). The Outline is a non‑binding set of guidelines to be used by member states and organizations in designing a comprehensive approach to the problems of drug abuse and trafficking (ibid., p. 7). It covers prevention and demand reduction, control of supply, suppression of illicit trafficking, and treatment and rehabilitation. The Declaration expressed concern about the effects of drug abuse and called for universal accession to the Single Convention on Narcotic Drugs, 1961 and the Convention on Psychotropic Substances, and the completion and adoption of the new convention.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-77", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 112", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "By the following year, the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UN Doc. E/Conf.82/15, 19 December 1988 (“Illicit Traffic Convention”), was in the final stages of negotiation and drafting. A conference for its adoption was held, with the delegations from 106 states participating (Final Act of the United Nations Conference for the Adoption of a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UN Doc. E/Conf.82/14, at para. 7). The Illicit Traffic Convention was adopted on December 19, 1988 and was immediately signed by 44 states, including Canada (D. W. Sproule and P. St‑Denis, “The UN Drug Trafficking Convention: An Ambitious Step”, in Canadian Yearbook of International Law 1989, vol. XXVII, 263, at p. 263); it came into force in November 1990. As of December 1997, 88 states have now signed the Illicit Traffic Convention (Multilateral Treaties Deposited with the Secretary‑General, United Nations, New York (ST/LEG/SER.E), as available on http://www.un.org/Depts/Treaty on December 4, 1997).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-78", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 113–114", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Illicit Traffic Convention has been described as “one of the most detailed and far‑reaching instruments ever adopted in the field of international criminal law” (Stewart, supra, at p. 388). Its preamble recognizes “that illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest priority”, and the eradication of which “is a collective responsibility of all States” (emphasis added). It includes provisions regarding the establishment of criminal offences for trafficking and related activities, the exercise of jurisdiction, confiscation of drugs, other materials and proceeds, extradition, mutual legal assistance and other forms of cooperation, control of substances, materials and equipment used in illicit manufacture, eradication of cultivation, and various other matters relating to the control of trafficking. It covers the narcotic drugs and psychotropic substances listed under the Single Convention on Narcotic Drugs, 1961 and the Convention on Psychotropic Substances, as well as substances commonly used in the illicit manufacture of these drugs.\n\nUnited Nations concern and activity relating to the control of illicit drug trafficking has continued to intensify throughout the last decade. Various organs and agencies of the United Nations have been addressing the problem of illicit drugs and associated issues such as organized crime, money laundering and terrorism. A special session of the General Assembly to consider the problem of illicit drugs is planned for 8‑10 June 1998 (GA Res. 51/64, 28 January 1997), and a high‑level political declaration has been proposed for that session (Press Release, GA/SHC/3424, 27 October 1997).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-79", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 115–116", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The new UN Programme for Reform identifies drug control, crime prevention and combatting international terrorism as a priority area for the UN in the coming years (Renewing the United Nations: A Programme for Reform, UN Doc. A/51/950, 14 July 1997, at para. 144). The United Nations International Drug Control Programme and the Crime Prevention and Criminal Justice Division (renamed the Centre for International Crime Prevention) are to be reorganized to strengthen the UN’s activities in this area (ibid., paras. 144‑45). The reform programme recognizes that “transnational networks of crime, narcotics, money‑laundering and terrorism” are a threat to government authority, civil society and law and order, and that this is an issue of growing international concern (ibid., para. 143). (2) Statements by the United Nations on Illicit Drug Trafficking\n\nThroughout the 1980s and 1990s, international efforts to combat illicit drug trafficking have been included as an item of the General Assembly agenda in every session, and at each session, the General Assembly has adopted resolutions on the subject. These resolutions are not legally binding upon member states, but they clearly and strongly indicate the views of the United Nations and its members. The resolutions on the control of drug trafficking consistently contain expressions of extreme concern about the problem and of condemnation for those who are responsible for its perpetuation and continued growth.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-80", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 117", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The following excerpts, from a 1986 resolution on the International campaign against traffic in drugs, GA Res. 41/127, 4 December 1986, are typical of the tone and content of these statements: Conscious of the common concern that exists among peoples of the world regarding the devastating effects of drug abuse and illicit trafficking, which jeopardize the stability of democratic institutions and the well‑being of mankind and which therefore constitute a grave threat to the security and an obstacle to the development of many countries, . . . Considering that, despite the efforts made, the situation continues to deteriorate, owing, inter alia, to the growing interrelationship between drug trafficking and transnational criminal organizations that are responsible for much of the drug traffic and abuse of narcotic drugs and psychotropic substances and for the increase in violence, corruption and injury to society, Acknowledging once more that the eradication of this scourge calls for acknowledgement of shared responsibility . . . 1. Condemns unequivocally drug trafficking in all its illicit forms ‑‑ production, processing, marketing and consumption ‑‑ as a criminal activity and requests all States to pledge their political will in a concerted and universal struggle to achieve its complete and final elimination. . . . [Emphasis added.] Subsequent declarations also expressed alarm at the detrimental impact on youth, both in terms of their involvement in production and trafficking, and the increasing numbers of drug addicted children and young people (e.g., GA Res. 43/121, 8 December 1988; GA Res. 44/141, 15 December 1989; GA Res. 46/103, 16 December 1991; GA Res. 49/168, 24 February 1995), and at the increasing connection between drug trafficking and terrorism (e.g., GA Res.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-81", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 117–118", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "44/142, 15 December 1989; GA Res. 45/149, 18 December 1990; GA Res. 46/103, 16 December 1991; GA Res. 47/102, 16 December 1992; GA Res. 48/112, 20 December 1993).\n\nIn 1990, a Political Declaration and Global Programme of Action were adopted at the seventeenth special session of the General Assembly, which was devoted to the control of illicit drug use and trafficking. The Political Declaration states: We, the States Members of the United Nations, Assembled at the seventeenth special session of the General Assembly to consider the question of international co‑operation against illicit production, supply, demand, trafficking and distribution of narcotic drugs and psychotropic substances, Deeply alarmed by the magnitude of the rising trend in the illicit demand, production, supply, trafficking and distribution of narcotic drugs and psychotropic substances, which are a grave and persistent threat to the health and well‑being of mankind, the stability of nations, the political, economic, social and cultural structures of all societies and the lives and dignity of millions of human beings, most especially of young people, . . . Deeply concerned about the violence and corruption generated by the illicit demand, production, trafficking and distribution of narcotic drugs and psychotropic substances and the high human, political, economic and social costs of drug abuse and of the fight against the drug problem, entailing the diversion of scarce resources from other national priorities, which in the case of developing countries includes development activities, . . .", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-82", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 118", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Recognizing the links between drug abuse and a wide range of adverse health consequences, including the transmission of human immunodeficiency virus (HIV) infection and the spread of acquired immunodeficiency syndrome (AIDS), Recognizing also that illicit trafficking in narcotic drugs and psychotropic substances is a criminal activity and that its suppression requires a higher priority and concerted action at the national, regional and international levels by all States, . . . Noting that the large financial profits derived from illicit drug trafficking and related criminal activities enable transnational criminal organizations to penetrate, contaminate and corrupt the structure of Governments, legitimate commercial activities and society at all levels, thereby vitiating economic and social development, distorting the process of law and undermining the foundations of States, . . . Alarmed at the growing link between illicit trafficking in narcotic drugs and terrorist activities, which is aggravated by insufficient control of commerce in arms and by illicit or covert arms transfers, as well as by illegal activities of mercenaries, . . . Agree on the following: 1. We resolve to protect mankind from the scourge of drug abuse and illicit trafficking in narcotic drugs and psychotropic substances; 2. We affirm that the fight against drug abuse and illicit trafficking in narcotic drugs and psychotropic substances should be accorded high priority by Governments and by all relevant regional and international organizations; . . . 8. We condemn the crime of illicit drug trafficking in all its forms and reaffirm our political commitment to concerted international action. . . . [Emphasis added.] (GA Res.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-83", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 118", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "S‑17/2, 23 February 1990, Annex) Most recently, a resolution adopted in January 1998 states that the General Assembly is: Gravely concerned that, despite continued increased efforts by States and relevant international organizations, there is a global expansion of illicit demand for, production of and trafficking in narcotic drugs and psychotropic substances, including synthetic and designer drugs, which threatens the health, safety and well‑being of millions of persons, in particular young people, in all countries, as well as the political and socio‑economic systems and the stability, national security and sovereignty of an increasing number of States, Deeply alarmed by the growing and spreading violence and economic power of criminal organizations and terrorist groups engaged in drug trafficking activities and other criminal activities, such as money laundering and illicit traffic of arms and precursors and essential chemicals, and by the increasing transnational links between them, . . . . . . Fully aware that States, the relevant organizations of the United Nations system and multilateral development banks need to accord a higher priority and political determination to dealing with this scourge, which undermines development, economic and political stability and democratic institutions, and the combat against which entails increasing economic costs for Governments and the irreparable loss of human lives. . . . [Emphasis added.] (GA Res. 52/92, 26 January 1998)", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-84", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 119", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "To traffic in dangerous illicit drugs is to commit a very grievous crime with very serious social consequences in Canada and throughout the world. In light of the grave international consequences it would be reasonable to expect the United Nations to have considered and studied the problem. The foregoing review confirms that those expectations have been met. The studies conducted by the United Nations have confirmed the gravity of the crime and the continuing tragedy of its consequences. These studies and the pronouncements of the United Nations concerning drug trafficking indicate that the crime can indeed be considered to be contrary to the purposes and principles of the United Nations. D. Application to the Case at Bar: Is Illicit Drug Trafficking an Act Contrary to the Purposes and Principles of the United Nations? (1) How Should A Court Or Tribunal Determine What Constitutes An Act Contrary to the Purposes and Principles of the United Nations?", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-85", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 120–121", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "On occasion, the United Nations itself has expressly declared a certain activity to be contrary to its purposes and principles. In those cases, the declaration depending on its legal status may compel a domestic court to find that the act is contrary to the purposes and principles of the United Nations, or at least persuade it to make such a finding. This is the situation which pertains to enforced disappearance, torture and international terrorism. The Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (GA Res. 3452 (XXX), 9 December 1975, Article 2) states that “[a]ny act of torture or other cruel, inhuman or degrading treatment or punishment is an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations. . . .”\n\nThe Declaration on the Protection of All Persons from Enforced Disappearance (GA Res. 47/133, 18 December 1992, Article 1(1)) contains similar language with respect to enforced disappearance. The Declaration on Measures to Eliminate International Terrorism (GA Res. 49/60, 17 February 1995, Annex, Article 2) and the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism (GA Res. 51/210, 16 January 1997, Annex, Article 2) both state that the acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations. These declarations are persuasive evidence that the acts stated to be contrary to the purposes or principles of the United Nations should be treated as such, inter alia, for the purposes of the Refugee Convention.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-86", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 122–123", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "It does not follow, however, that the category of acts contrary to the purposes and principles of the United Nations should be restricted to those expressly declared to be so. A domestic tribunal is entitled, upon considering the relevant material, to find that the phrase includes other types of acts. On this appeal two other categories were put forward as an indication of the kind of acts which should also be considered contrary to the purposes and principles of the United Nations: namely international crimes and “crimes of international concern”. While these categories may be useful guides, they should not, I think, be considered to be conclusive in determining the scope of acts which should be included.\n\nThe category of acts which are agreed to be true international crimes is, at least at the present time, a very limited one. These crimes would be considered acts contrary to the purposes and principles of the United Nations, but I do not think they constitute the only acts contravening the UN’s purposes and principles. On the other hand, the category of “crimes of international concern”, which it is suggested includes those crimes which are the subject of international conventions providing for international cooperation in prosecuting offenders, is a very broad one. (See, e.g., M. C. Bassiouni, International Criminal Law, vol. 1, Crimes (1986), at pp. 135‑36.) He would include some activity which it would be inappropriate to label as “contrary to the purposes and principles of the United Nations”. Actions which do come within this description will have serious consequences. It follows that in the context of defining the scope of exclusions to the Refugee Convention, they should not be too broadly defined.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-87", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 124–125", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Similarly, it cannot be that every initiative of the United Nations is so central to its purposes and principles that any act which violates or undermines those initiatives is “contrary to the purposes and principles of the United Nations”. It is true that one of the purposes of the United Nations as expressed in its Charter is “[t]o achieve international cooperation in solving international problems” (Charter of the United Nations, Can. T.S. 1945 No. 7, Article 1(3)). However in light of the expansive, and expanding scope of the areas in which agencies of the United Nations are active, it would not be appropriate to use this wide range of activity to define the exclusion at issue here.\n\nNevertheless, there are some matters which are the subject of such grave concern and such intense and continuing activity that it may be inferred that they are fundamentally connected to the goals of the UN. It is not merely the extent of the concern and activity that will indicate which initiatives are central to the purposes and principles of the UN, but also the nature of the problem and its relationship to the purposes and principles as they are expressed in the Charter. Some problems have been recognized by the international community as being so serious and of such a nature that they pose a threat to the entire international community and the principles of its social order. Conduct which directly or significantly contributes to these problems or which violates agreed principles or obligations with respect to them should, in appropriate cases, be considered as contrary to the purposes and principles of the United Nations. In my view trafficking to a significant extent in a dangerous drug such as heroin should be included in this category of conduct.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-88", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 126", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "While I agree with Bastarache J. that serious or systematic violation of human rights would be conduct that is contrary to the purposes and principles of the United Nations, with respect, I do not see that it is the only conduct that should be considered in interpreting Article 1F(c) of the Refugee Convention. The promotion of respect for human rights is one of the fundamental purposes of the United Nations. There are, however, other purposes and principles which can be violated by the actions of an individual or a state. It may be useful to review the purposes and principles of the United Nations set out in the Charter: Article 1 The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self‑determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-89", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 126", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles: 1. The Organization is based on the principle of the sovereign equality of all its Members. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-90", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 126–128", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "These principles are reiterated and developed in the Declaration on Principles of International Law Concerning Friendly Relations and Co‑operation Among States in Accordance with the Charter of the United Nations (GA Res. 2625 (XXV), 24 October 1970, Annex).\n\nThe determination of what constitutes an act contrary to these purposes and principles need not be limited to the consideration of one purpose, the protection of human rights, notwithstanding the fact that it is important and that the Refugee Convention is a human rights instrument. Although the purpose of the instrument will be taken into account in interpreting its provisions, I do not see that in this case it must restrict the content of the exclusion so as to limit it to conduct relating directly to human rights. All of the purposes and principles should be considered. Furthermore, some types of conduct may indirectly but significantly contribute to the violation of human rights; I would include participation in large scale illicit drug trafficking in that category of conduct.\n\nThe Refugee Convention should be interpreted so as to provide the greatest protection of human rights. Yet, it cannot be the case that the interpretation of an exclusion must be forever restricted. As international law develops, the content of a phrase such as “acts contrary to the purposes and principles of the United Nations” must be capable of development. The expansion of the exclusion set out in Article 1F(c) of the Refugee Convention should not be undertaken lightly, but where there is compelling evidence suggesting that it should be interpreted in a certain way, a court is not precluded from adopting that interpretation.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-91", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 129–130", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "International law is developing continuously. Courts should recognize that the guidance provided by interpretive aids such as the travaux préparatoires and subsequent practice must be considered in the light of the current state of the law and international understandings. The travaux préparatoires should be taken into account, yet this does not mean that courts are restricted to a precise interpretation of that material. Rather, consideration should be given to the underlying principles and concerns that they express with the aim of giving them a contemporary meaning. Similarly, with regard to state practice, some consistency should be maintained with the line of interpretation revealed by the practice of state parties, but that interpretation must be adjusted to take into account evolving ideas and principles in international law. The interpretation of international legal instruments is a dynamic process which must take into account the contemporary conditions. To put it another way, the interpretation must respond to the contemporary context. (2) Can a Private Individual Be Guilty of Acts Contrary to the Purposes and Principles of the United Nations?\n\nThe position, that illicit drug trafficking activities may constitute acts contrary to the purposes and principles of the United Nations, assumes that private individuals can commit such acts. Although those involved in trafficking will sometimes hold public office or other positions of power, it is unlikely that they would be engaging in illicit trafficking in their capacity as state actors. More often the traffickers will be private individuals with no direct connection to state authority.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-92", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 131–132", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "To hold that a private person who is not acting on behalf of or as agent of a state, could commit an act that is contrary to the purposes and principles of an international organization of nation states is, admittedly, contrary to the traditional position. Traditionally it was thought that the purposes and principles of the United Nations, like international law generally, are addressed only to states, and can be violated only by state actors. This is the position reflected in the portions of the travaux préparatoires and the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status referred to by the appellant.\n\nHowever, the status of private individuals in international law has evolved in recent years. It is now generally accepted that an individual acting in his or her private capacity can commit acts which constitute violations of international law. Although the scope of international criminal responsibility for private individuals is limited, it does exist. Some of the acts covered by Article 1F(a) can be committed by individuals who are not acting as officials or agents of a state. It follows that Article 1F(c), could also apply to individuals. For example the actions of a kidnapping or murdering terrorist; the illicit sale of arms by an arms dealer; or the trafficking in heroin in a large scale which might fund the acts of the terrorist or arms dealer could all contravene the aims and principles of the United Nations.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-93", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 133–135", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Furthermore, some of the acts which have been explicitly recognized as contrary to the purposes and principles of the United Nations are also recognized to be committed, at least in some cases, by private individuals. The Declaration on Measures to Eliminate International Terrorism implies that terrorist acts may be committed with or without official state involvement. This is apparent from the Preamble that refers to “acts of international terrorism, including those in which States are directly or indirectly involved” (emphasis added).\n\nThe position adopted by my colleague, Bastarache J., that “acts contrary to the purposes and principles of the United Nations” should be interpreted, for the purposes of the Refugee Convention, as meaning serious violations of human rights or persecution, also implies that private individuals could be guilty of these acts. Indeed this Court held in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, that persecution could, in some cases, include acts by private individuals without any state involvement (at pp. 713‑17). (3) Is Trafficking in Illicit Drugs an Act Contrary to the Purposes and Principles of the United Nations?\n\nIn my opinion significant trafficking in a dangerous illicit drug can constitute an act which is contrary to the purposes and principles of the United Nations. It would thus form the basis of exclusion from refugee status pursuant to Article 1F(c) of the Refugee Convention. Although I accept the result arrived at by the courts below and suggested by the respondent, I arrive at that result by somewhat different reasoning.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-94", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 136–137", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the outset it is important to set out certain propositions which do not form the basis for my position. I do not proceed on the basis that refugee status is a privilege or exceptional entitlement and that therefore any doubt in interpretation may be resolved against the potential claimant. To the extent that this was the basis underlying the reasons of Strayer J.A. in the Court of Appeal, I cannot with respect agree with that view. The right to claim refugee status constitutes an important right, and any exclusions from that right must be interpreted in accordance with accepted principles.\n\nNext, the rationale for including illicit drug trafficking in the 1F(c) exclusion is not that Canada should be able to exclude from the refugee determination process persons who might be considered “undesirable” or who have, without more, committed crimes in Canada. These cases must be dealt with, if at all, according to the provisions for refoulement as they are incorporated into the Immigration Act, R.S.C., 1985, c. I‑2.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-95", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 138–139", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is also not, as the respondent suggested, a question of helping in some way in the “war against drugs”. Canada’s obligations do not require it to deny refugee status to those involved in the drug trade. Rather, the interpretation of the exclusion to include drug trafficking reflects the harsh reality that this activity is recognized, both legally and practically, as an activity that not only is a domestic criminal offence, but occasions very serious and significant harm in the international community. It is because it gives rise to such grave consequences that it can and should form the basis of an exclusion. This conclusion arises from the consideration and application of the same rationale that prompted the international community to determine that certain persons should not, because of the nature of their actions, be permitted to make the claim to refugee status that they would otherwise be entitled to make. (4) Illicit Drug Trafficking as an International Crime\n\nTrafficking in illicit drugs is clearly a “crime of international concern”. The Illicit Traffic Convention explicitly recognizes that “illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest priority” (Preamble). It requires all states who are parties to cooperate in the prevention and prosecution of trafficking offences. General Assembly resolutions have also referred to illicit drug trafficking as a criminal activity, which requires international cooperation to suppress (e.g., GA Res. 39/141, 14 December 1984, Annex; GA Res. 41/127, 4 December 1986).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-96", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 140", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The legal status of illicit trafficking as an “international crime” is less clear, in large part because there is little agreement on what constitutes a true international crime (J. F. Murphy, “International Crimes” in C. C. Joyner, ed., The United Nations and International Law (1997), 362, at pp. 362‑63). According to one author, “[i]n light of [the Illicit Traffic Convention] and the other earlier multilateral efforts a good argument can be made that international drug trafficking is a crime under customary international law” (ibid., pp. 369‑70). However, it does not yet seem to be established that universal jurisdiction exists for drug trafficking crimes. The latest version of the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind (Report of the International Law Commission on the work of its forty‑eighth session, UN Doc. A/51/10, chapter 2) does not contain provisions on narcotics trafficking although they had been included in an earlier draft (Draft Articles on the Draft Code of Crimes Against the Peace and Security of Mankind, UN Doc. A/46/405, 11 September 1991, at p. 25). The commentary to the recent draft, however, indicates that this omission is not to be construed as precluding further discussion and perhaps the eventual inclusion of those provisions (Report of the International Law Commission on the work of its forty‑eighth session, supra, at para. 40).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-97", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 141–142", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "All of these elements may be considered in determining whether trafficking in illicit drugs is an act contrary to the purposes and principles of the United Nations. However, I do not think that the categorization of an act as an international crime or crime of international concern is determinative of the question. Rather it is necessary to consider the question in the context of all the relevant factors. (5) Nature and Gravity of the Harm Caused by Illicit Drug Trafficking\n\nThe concern of the appellant and the intervener on this appeal was to establish some rational basis for identifying those “crimes of international concern” or activities contrary to some United Nations programme or initiative that could properly be called “acts contrary to the purposes and principles of the United Nations”. In my view, the additional factor which distinguishes illicit drug trafficking from some other “crimes of international concern” or United Nations initiatives is the nature and gravity of the harm to people in countries around the world and to the international community as a whole that results from this activity. An analysis of the nature and severity of the harm provides a rational basis for drawing the necessary distinctions.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-98", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 143", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The insidious and widespread effects of drug use and trafficking have already been described. Beyond any doubt the harm caused by the illicit traffic in drugs is of the utmost severity. This illicit traffic takes a dreadful toll on the lives of individuals, families and communities. It destabilizes and retards the development of whole nations and regions. Clearly the grave concern that has been consistently expressed by the international community is well merited. Nor can there be any doubt that the severity of the problem and the international concern for its consequences is increasing.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-99", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 144", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "Drug trafficking has, throughout this century, been an international enterprise and hence an international problem. However, the ever increasing scale of the traffic, the apparent efficiency of organization and sophistication, the vast sums of money involved and the increasing links with transnational organized crime and terrorist organizations constitute a threat which is increasingly serious in both its nature and extent. Illicit drug trafficking now threatens peace and security at a national and international level. It affects the sovereignty of some states, the right of self‑determination and democratic government, economic, social and political stability and the enjoyment of human rights. Many of the purposes and principles expressed in the UN Charter, are undermined, directly or indirectly, by the international trade in illicit drugs: for example, international peace and security (Article 1(1)), self‑determination (Article 1(2)), solving economic, social, cultural or humanitarian problems (Article 1(3)), protection of human rights (Article 1(3)), sovereignty (Article 2(1)) and refraining from the use of force (Article 2(4)). It is on this basis that I find that at least some individuals who participate in and contribute to this activity must be considered to be committing acts contrary to the purposes and principles of the United Nations. (6) Explicit Statements Regarding Illicit Drug Trafficking by the United Nations", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-100", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 145", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The statements on this subject by the international community, including the relevant conventions and General Assembly resolutions, reflect an acute awareness of the nature and gravity of the problem, and a severe condemnation of the activities that give rise to the problem. It was contended by the intervener Canadian Council for Refugees that the silence of the United Nations on illicit drug trafficking, in contrast to, for example, torture and international terrorism, indicated that trafficking should not be considered contrary to its purposes and principles. Yet, in reality, the United Nations has been anything but silent with respect to its concerns about the international traffic in illicit drugs and its effects.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-101", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 146", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is true that, the United Nations has never specifically declared that drug trafficking is “contrary to the purposes and principles of the United Nations”. However it has clearly and frequently recognized and denounced the evils of drug trafficking. See for example: Trafficking in narcotic drugs or psychotropic substances is a grave international crime against humanity. (Draft Convention against Traffic in Narcotic Drugs and Psychotropic Substances and Related Activities, GA Res. 39/141, 14 December 1984, Annex, Article 2) [The General Assembly] [c]ondemns unequivocally drug trafficking in all its illicit forms. . . . (GA Res. 41/127, 4 December 1986, Article 1) We condemn the crime of illicit drug trafficking in all its forms. . . . (Political Declaration, GA Res. S‑17/2, 23 February 1990, Annex, Article 8) [The General Assembly] [s]trongly condemns the crime of drug trafficking in all its forms. . . . (GA Res. 45/149, 18 December 1990, Part I, Article 1; GA Res. 46/103, 16 December 1991, Part I, Article 2) [The General Assembly] [r]eiterates its condemnation of the crime of drug trafficking in all its forms. . . . (GA Res. 47/102, 16 December 1992, Part I, Article 2; GA Res. 48/112, 20 December 1993, Part II, Article 1)", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-102", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 147", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "There are also many statements reflecting an awareness that trafficking threatens essential aspects of the purposes and principles of the United Nations. Drug trafficking has been recognized as a threat to: health and well‑being (e.g., GA Res. 36/132, 14 December 1981; GA Res. 39/141, 14 December 1984, Annex; GA Res. 40/122, 13 December 1985; GA Res. 41/127, 4 December 1986; GA Res. 44/142, 15 December 1989; GA Res. S‑17/2, 23 February 1990, Annex; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997; GA Res. 52/92, 26 January 1998); political, economic, social and cultural structures (e.g., GA Res. 42/113, 7 December 1987; GA Res. 43/122, 8 December 1988; GA Res. 44/141, 15 December 1989; GA Res. 44/142, 15 December 1989; GA Res. S‑17/2, 23 February 1990, Annex; GA Res. 45/149, 18 December 1990; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997; GA Res. 52/92, 26 January 1998); development (e.g., GA Res. 38/122, 16 December 1983; GA Res. 39/141, 14 December 1984, Annex; GA Res. 40/122, 13 December 1985; GA Res. 41/127, 4 December 1986; GA Res. S‑17/2, 23 February 1990, Annex; GA Res. 49/168, 24 February 1995; GA Res. 52/92, 26 January 1998); political and economic stability (e.g., GA Res. 40/122, 13 December 1985; GA Res. 44/142, 15 December 1989; GA Res. 45/149, 18 December 1990; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997; GA Res. 52/92, 26 January 1998); national security (e.g., GA Res. 36/132, 14 December 1981; GA Res. 38/122, 16 December 1983; GA Res. 40/122, 13 December 1985; GA Res. 41/127, 4 December 1986; GA Res. 42/113, 7 December 1987; GA Res. 43/122, 8 December 1988; GA Res. 44/142, 15 December 1989; GA Res. 45/149, 18 December 1990; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997; GA Res.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-103", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 147–148", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "52/92, 26 January 1998); sovereignty (e.g., GA Res. 39/141, 14 December 1984, Annex; GA Res. 40/121, 13 December 1985; GA Res. 44/142, 15 December 1989; GA Res. 45/149, 18 December 1990; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997; GA Res. 52/92, 26 January 1998); human rights (e.g., GA Res. 44/39, 4 December 1989; GA Res. 49/168, 24 February 1995); and democratic institutions (e.g., GA Res. 40/121, 13 December 1985; GA Res. 41/127, 4 December 1986; GA Res. 42/113, 7 December 1987; GA Res. 43/122, 8 December 1988; GA Res. 44/141, 15 December 1989; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997).\n\nAs a basis for comparison, the Article of the Declaration on Measures to Eliminate International Terrorism that declares the acts, methods and practices of terrorism to be contrary to the purposes and principles of the United Nations states that these “may pose a threat to international peace and security, jeopardize friendly relations among States, hinder international cooperation and aim at the destruction of human rights, fundamental freedoms and the democratic bases of society” (Article 2). Since the United Nations has explicitly recognized that the traffic in illicit drugs may pose a similar threat, I think it is reasonable to infer that this activity is also contrary to the purposes and principles of the United Nations.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-104", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 149–150", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "This conclusion is strengthened by the recognition that illicit drug trafficking is, to an increasingly significant extent, linked to other acts which are contrary to the purposes and principles of the United Nations. That organization has recognized that trafficking in illicit drugs is directly and indirectly responsible for grave human rights violations. Its growing links to international terrorism clearly indicate that drug money is used to support terrorist activity. The international community has recently recognized this in the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism by stating that: 2. The States Members of the United Nations reaffirm that acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations; they declare that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations. . . . [Emphasis added.]\n\nThe statements of the United Nations and the international community lead inexorably to the conclusion that those engaged in trafficking in illicit drugs are responsible, directly or indirectly, for harms that are so widespread and so severe that they undermine the very purposes and principles upon which the United Nations is based. It follows that their actions must be considered “acts contrary to the purposes and principles of the United Nations” and thus come within the exclusion set out in Article 1F(c) of the Refugee Convention.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-105", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 151", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "There remains the problem of distinguishing which acts within the broad category of illicit drug trafficking constitute acts contrary to the purposes and principles of the United Nations. The UN General Assembly has condemned “drug trafficking in all its illicit forms”, including production, processing, marketing and consumption (e.g., GA Res. 41/127, 4 December 1986). However, I believe it is necessary to draw some distinctions based on the type and scale of activities. It is those actually engaged in trafficking who reap most of the profits, cause the greatest harm and therefore bear the greatest responsibility for perpetuating the illicit trade. Those who are merely consumers are often victims themselves and do not bear the same responsibility. The Illicit Traffic Convention recognizes this distinction by treating production, processing, distribution and sale differently from possession, purchase or cultivation for personal consumption for the purposes of offences and sanctions (Article 3).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-106", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 152", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Illicit Traffic Convention also provides some guidance with respect to distinguishing particularly serious trafficking offences. Article 3(5) outlines a number of “factual circumstances which make the commission of the offences established in accordance with paragraph 1 of this article particularly serious”: (a) The involvement in the offence of an organized criminal group to which the offender belongs; (b) The involvement of the offender in other international organized criminal activities; (c) The involvement of the offender in other illegal activities facilitated by commission of the offence; (d) The use of violence or arms by the offender; (e) The fact that the offender holds a public office and that the offence is connected with the office in question; (f) The victimization or use of minors; (g) The fact that the offence is committed in a penal institution or in an educational institution or social service facility or in their immediate vicinity or in other places to which school children and students resort for educational, sports and social activities; (h) Prior conviction, particularly for similar offences, whether foreign or domestic, to the extent permitted under the domestic law of a Party.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-107", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 153", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "To this list of factors to be considered, I would add the nature and quantity of the drugs involved. The International Law Commission’s draft code that included illicit traffic in narcotics as an international crime (Draft Articles on the Draft Code of Crimes Against the Peace and Security of Mankind, Article 25(1)) referred to trafficking on a large scale; of course it will be a question of interpretation in each case whether the trafficking at issue is “on a large scale”. The commentary of the International Law Commission on this article distinguishes between “isolated or individual activities of small dealers” and “large‑scale, organized operations” (Report of the International Law Commission on the work of its forty-second session, UN Doc. A/45/10, in the Yearbook of the International Law Commission 1990, vol. II, Part Two, 1, at p. 30).", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-108", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "para 154", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case, the appellant was a participant in an organized group trafficking in heroin. Heroin is thought to be the most harmful of illicit narcotic drugs (World Drug Report, supra). Obviously its use and trafficking are a matter of particularly grave concern. At the time the arrests were made, the group with which the appellant was associated held heroin with a street value of approximately $10 million. This was clearly a major operation, and the appellant was an important participant in that operation. These facts, in my opinion, clearly indicate the seriousness of the appellant’s crime. Therefore, while not every domestic narcotics offence will provide a basis for exclusion under Article 1F(c) of the Refugee Convention, this appellant should, as a result of his actions, be excluded. He trafficked on a large scale in the most debilitating of drugs. He abused his status in Canada and jeopardized the lives, health and welfare of many. There is no reason why Canadians should be burdened with his continued presence. He has demonstrated his danger to Canadian society and indeed to the international community. He should not remain in Canada. (7) Remedies Available Prior to Deportation", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-109", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 155–156", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "During the appeal, concern was expressed that the appellant or another individual excluded by Article 1F could face a risk of torture, execution or other serious human rights violation upon being deported to his country of origin. It was said that no effective remedy was available to prevent his deportation should such a risk exist. It was suggested that the absence of a remedy, would give rise to a serious injustice and would involve Canada in a breach of its legal obligations under various international instruments. In particular, Canada would be failing to meet its obligations under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36, not to expel or return a person to a state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture (Article 3(1)) and similar obligations in the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (E/RES/1989/65, 24 May 1989, Article 5) and the United Nations Declaration on the Protection of All Persons from Enforced Disappearance, Article 8.\n\nAlthough these issues are a valid cause for serious concern, they do not directly arise in this appeal. It was suggested to the Court that these concerns could be dealt with by adopting a “balancing” approach to the exclusion clauses in Article 1F. Such an approach would not be appropriate in light of the nature and wording of that article.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1627-110", - "doc_type": "caselaw", - "act_code": "[1998] 1 SCR 982", - "act_short": "Pushpanathan", - "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", - "marginal_note": "paras 157–158", - "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the context of the present appeal, it is neither necessary nor desirable to examine in detail the remedies that are presently available to an individual facing deportation nor to suggest the particular form that such a remedy should take. However, it would be unthinkable if there were not a fair hearing before an impartial arbiter to determine whether there are “substantial grounds for believing” that the individual to be deported would face a risk of torture, arbitrary execution, disappearance or other such serious violation of human rights. In light of the grave consequences of deportation in such a case, there must be an opportunity for a hearing before the individual is deported, and the hearing must comply with all of the principles of natural justice. As well, the individual in question ought to be entitled to have the decision reviewed to ensure that it did indeed comply with those principles. These protections should be available whether or not the individual is excluded from claiming status as a refugee, to avoid unacceptably harsh consequences arising from the exclusion. III. Conclusion\n\nIn the result I would dismiss the appeal. Appeal allowed, Cory and Major JJ. dissenting.", - "current_to": "1998-06-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" - }, - { - "id": "scc-1023-1", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 1", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689\n\nPatrick Francis Ward Appellant\n\nv.\n\nThe Attorney General of Canada Respondent\n\nand\n\nUnited Nations High Commissioner for\n\nRefugees, Immigration and Refugee Board and\n\nCanadian Council for Refugees Interveners\n\nIndexed as: Canada (Attorney General) v. Ward\n\nFile No.: 21937.\n\n1992: March 25; 1993: June 30.\n\nPresent: La Forest, L'Heureux‑Dubé, Gonthier, Stevenson* and Iacobucci JJ.\n\non appeal from the federal court of appeal\n\nImmigration ‑‑ Refugee status ‑‑ \"Particular social group\" ‑‑ Political opinion ‑‑ \"Well‑founded fear of persecution\" necessary to establishment of claim to Convention refugee status ‑‑ Claimant a former member of Irish terrorist organization sentenced to death by organization for complicity in assisting escape of hostages ‑‑ Claimant citizen of Ireland and of United Kingdom ‑‑ Whether state complicity requirement for persecution ‑‑ Whether terrorist organization a \"particular social group\" ‑‑ Whether dissention from politico‑military organization basis for persecution for political opinion ‑‑ Whether s. 15 of Charter applicable to definition of Convention refugee ‑‑ Burden of proof of want of protection of each country of nationality ‑‑ Canadian Charter of Rights and Freedoms, s. 15 ‑‑ Immigration Act, 1976, S.C. 1976‑77, c. 52, ss.2(1), 4(2.1), 19(1)(c), (d), (e), (f), (g), (2), 46.04(1)(c).", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-2", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 2", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Appellant was a resident of Northern Ireland. Motivated by a perceived need to \"take a stand\" in order to protect his family, mainly from the IRA, he voluntarily joined the INLA, a para‑military terrorist group dedicated to the political union of Ulster and the Irish Republic. Appellant, who had been detailed to guard innocent hostages, secured their escape when he learned that they were to be executed. This action was motivated by his conscience.\n\nThe police eventually let slip to an INLA member that one of their own had assisted the escape. The INLA, who had suspected appellant, confined and tortured him and sentenced him to death following a court‑martial by a kangaroo court. Appellant escaped from the INLA, sought police protection and was charged for his part in the hostage incident. The INLA, in a pre‑emptive move to prevent appellant's providing evidence to the police about INLA members and their activities, took his wife and children hostage.\n\nAppellant pleaded guilty to the offence of forcible confinement and was sentenced to three years in jail. He did not give evidence against the INLA and never admitted publicly to having released the hostages. Towards the end of his prison sentence, appellant sought the assistance of the prison chaplain for protection from INLA members. The chaplain, with the assistance of police, obtained a Republic of Ireland passport for appellant and airline tickets to Canada.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-3", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 3", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Appellant arrived in Toronto in December 1985 and sought admission to Canada as a visitor. He became the subject of an inquiry in May, 1986, and claimed Convention refugee status citing a fear of persecution because of his membership in a particular social group (the INLA). The Minister of Employment and Immigration determined that appellant was not a Convention refugee and, as a result, appellant filed an application for redetermination of his claim before the Immigration Appeal Board. The Board allowed the redetermination and found appellant to be a Convention refugee. The Federal Court of Appeal granted the Attorney General of Canada's application under s. 28 of the Federal Court Act to set aside the decision and referred the matter back to the Board for reconsideration.\n\nAt issue before this Court were: (1) whether the element of state complicity is required to establish a refugee claim and the nature of the \"unwillingness\" or \"inability\" of a claimant to seek the protection of his or her home state; (2) the meaning of \"particular social group\"; (3) the nature of persecution for political opinion and whether desertion from a politico‑military organization for reasons of conscience may properly ground a claim based on that ground; (4) whether s. 15 of the Charter was applicable; and (5) in cases of multiple nationality, whether the claimant must establish want of protection in all states of citizenship.\n\nHeld: The appeal should be allowed.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-4", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 4", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "International refugee law was formulated to serve as a back‑up to the protection owed a national by his or her state. It was meant to come into play only in situations where that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.\n\n\"Persecution\" includes situations where the state is not in strictness an accomplice to the persecution but is simply unable to protect its citizens. The dichotomy between \"unable\" and \"unwilling\" has become somewhat blurred. The inquiry as to whether a claimant meets the \"Convention refugee\" definition must focus on whether there is a \"well‑founded fear\", which the claimant must first establish, and all that follows must be \"by reason of\" that fear. Two categories, both requiring the claimant to be outside his or her state of nationality by reason of that fear, exist. The first requires that the claimant be unable to avail him‑ or herself of that state's protection. It originally related only to stateless persons, but can now include those refused passports or other protections by their state of nationality. The second requires that the claimant be unwilling to avail him‑ or herself of his or her state's protection by reason of that fear. Neither category of the \"Convention refugee\" definition, however, requires that the state have been involved in the persecution.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-5", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 5", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The test as to whether a state is unable to protect a national is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well‑founded in an objective sense. The claimant need not literally approach the state unless it is objectively unreasonable for him or her not to have sought the protection of the home authorities. The Board, if the claimant's fear has been established, is entitled to presume that persecution will be likely and that the fear is well‑founded if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. The persecution must be real ‑‑ the presumption cannot be built on fictional events ‑‑ but the well‑foundedness of the fears can be established through the use of such a presumption.\n\nThe presumption was of some importance to the Board in this case. It found that the appellant was a credible witness and therefore accepted that he had a legitimate fear of persecution. Since Ireland's inability to protect was established through evidence that state agents had admitted their ineffectiveness, the Board was then able to presume the well‑foundedness of appellant's fears.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-6", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 6", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The claimant must provide clear and convincing confirmation of a state's inability to protect absent an admission by the national's state of its inability to protect that national. Except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting a claimant. This presumption, while it increases the burden on the claimant, does not render illusory Canada's provision of a haven for refugees. It reinforces the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant.\n\nIn distilling the contents of the head of \"particular social group\", account should be taken of the general underlying themes of the defence of human rights and anti‑discrimination that form the basis for the international refugee protection initiative. A good working rule for the meaning of \"particular social group\" provides that this basis of persecution consists of three categories: (1) groups defined by an innate, unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-7", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 7", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Exclusions on the basis of criminality have been carefully drafted in the Immigration Act to avoid the admission of claimants who may pose a threat to the Canadian government or to the lives or property of the residents of Canada. These provisions specifically give the Minister of Employment and Immigration enough flexibility to reassess the desirability of permitting entry to a claimant with a past criminal record, where the Minister is convinced that rehabilitation has occurred. This demonstrates that Parliament has not opted to treat a criminal past as a reason to be estopped from obtaining refugee status. The scope of the term \"particular social group\" accordingly did not need to be interpreted narrowly to accommodate morality and criminality concerns. Such a blanket exclusion is more appropriately to be avoided in the face of an explicit, comprehensive structure for the assessment of these potentially inadmissible claimants.\n\nAppellant did not meet the definition of \"Convention refugee\" with respect to his fear of persecution at the hands of the INLA upon his return to Northern Ireland. The group of INLA members is not a \"particular social group\". Its membership is neither characterized by an innate characteristic nor is it an unchangeable historical fact. Its objective of obtaining specific political goals by any means, including violence, cannot be said to be so fundamental to the human dignity of its members that it constitutes a \"particular social group\". In any event, appellant's fear was not based on his membership. Rather, he felt threatened because of what he did as an individual. His membership in the INLA placed him in the circumstances that led to his fear, but the fear itself was based on his action, not on his affiliation.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-8", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 8", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "A claimant is not required to identify the reasons for the persecution. The examiner must decide whether the Convention definition is met; usually there will be more than one applicable ground.\n\nPolitical opinion can generally be interpreted to be any opinion on any matter in which the machinery of state, government, and policy may be engaged. The political opinion at issue need not have been expressed outright. Often the claimant is not even given the opportunity to articulate his or her beliefs; often they are imputed to the claimant from his or her actions. The political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. Similar considerations apply to other bases of persecution.\n\nAppellant's fear of being killed by the INLA, should he return to Northern Ireland, stemmed initially from the group's threat of executing the death sentence imposed by its court‑martial. The act for which appellant was so punished was his assistance in the escape of the hostages he was guarding. From this act, a political opinion related to the proper limits to means used for the achievement of political change can be imputed. To appellant, who believed that the killing of innocent people to achieve political change is unacceptable, setting the hostages free was the only option that accorded with his conscience. The persecution appellant fears stemmed from his political opinion as manifested by this act.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-9", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 9", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Given that the relevant aspects of the majority decision were found to be incorrect for other reasons, recourse to s. 15 of the Charter with respect to \"particular social group\" and state complicity was unnecessary.\n\nAppellant conceded dual nationality ‑‑ Irish and British. The burden of proof, including a showing of well‑founded fear of persecution in all countries of which the claimant is a national, lies with appellant and not the Minister.\n\nThe Board must investigate whether the claimant is unable or unwilling to avail him‑ or herself of the protection of each and every country of nationality. Any home state protection is a claimant's sole option when available since international refugee protection is to serve as \"surrogate\" shelter coming into play only upon failure of national support. The inability of a state of nationality to protect can be established where the claimant has actually approached the state and been denied protection. Where, as in the case of appellant, the second state has not actually been approached by the claimant, that state should be presumed capable of protecting its nationals. An underlying premise of this presumption is that citizenship carries with it certain basic consequences, such as the right to gain entry to the country at any time. Denial of admittance to the home territory can amount to a refusal of protection. Here, evidence, albeit not expert opinion, was led to establish that British legislation enabled the British Government to prohibit a national from being in, or entering, Great Britain, if the national had been connected with terrorism with regard to Northern Ireland. The applicability of this presumption and its rebuttal depended on the particular circumstances of this case and was to be determined by the Board.\n\nCases Cited", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-10", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 10", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Considered: Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129; Surujpal v. Minister of Employment and Immigration (1985), 60 N.R. 73; Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605; McMullen v. Immigration and Naturalization Service, 658 F.2d 1312 (1981); Cheung v. Minister of Employment and Immigration, [1993] F.C.J. No. 309 (Q.L.), Appeal No. A‑785‑91; Mayers v. Canada (Minister of Employment and Immigration) (1992), 97 D.L.R. (4th) 729; Matter of Acosta, Interim Decision 2986, 1985 WL 56042 (B.I.A.); referred to: Artiga Turcios v. I.N.S., 829 F.2d 720 (1987); Arteaga v. I.N.S., 836 F.2d 1227 (1988); Estrada‑Posadas v. I.N.S., 924 F.2d 916 (1991); Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171; Astudillo v. Minister of Employment and Immigration (1979), 31 N.R. 121; Arrechea Gonzalez v. Minister of Employment and Immigration (1991), F.C.A. A‑899‑90; Ahmed v. Minister of Employment and Immigration (1990), F.C.A. A‑215‑90; Lai v. Canada (Minister of Employment and Immigration) (1989), Imm. L.R. 245; Osorio Cruz v. Minister of Employment and Immigration (1988), I.A.B.D. M88‑20043X; Nalliah v. Minister of Employment and Immigration (1987), I.A.B.D. M84‑1642; Escoto v. Minister of Employment and Immigration (1987), I.A.B.D. T87‑9024X; Incirciyan v. Minister of Employment and Immigration (1987), I.A.B.D. M87‑1541X/M87‑1248; Balareso v. Minister of Employment and Immigration (1985), I.A.B.D. M83‑1542; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; I.N.S. v. Elias‑Zacarias, 112 S.Ct. 812 (1992).\n\nStatutes and Regulations Cited\n\nBritish Nationality Act 1981, 1981 (U.K.), c. 61.\n\nCanadian Charter of Rights and Freedoms , s. 15 .\n\nFederal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-11", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 11", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Immigration Act, R.S.C., 1985, c. I‑2, ss. 2(1) [as am. by S.C. 1988, c. 35, s. 1 (R.S.C., 1985, c. 28 (4th Supp.), ss. 1(2), 34)], 19.\n\nImmigration Act, 1976, S.C. 1976‑77, c. 52, s. 2(1) [as am. by S.C. 1988, c. 35, s. 1], 4(2.1) [as ad. by Miscellaneous Statute Law Amendment Act, 1981, S.C. 1980‑81‑82‑83, c. 47, s. 3], 19(1)(c), (d), (e), (f), (g), (2) [as am. by S.C. ibid., ss. 23, 53], 46.04(1)(c) [as ad. by S.C. 1988, c. 35, s. 14].\n\nImmigration Regulations, 1978, SOR/78‑172, s. 19(4)(j).\n\nInterpretation Act , R.S.C., 1985, c. I‑21 , s. 33(2) .\n\nPrevention of Terrorism (Temporary Provisions) Act 1984, 1984 (U.K.), c. 8, later replaced by Prevention of Terrorism (Temporary Provisions) Act 1989, 1989 (U.K.), c. 4, ss. 4, 5.\n\nAuthors Cited\n\nCompton, Daniel. \"Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar ‑‑ Sanchez‑Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986)\" (1987), 62 Wash. L. Rev. 913.\n\nConvention Relating to the Status of Refugees (Geneva, July 28, 1951), Can. T.S. 1969, No. 6.\n\nFoighel, Isi. \"The Legal Status of the Boat‑People\", 48 Nordisk Tidsskrift for International Relations 217.\n\nGoodwin‑Gill, Guy S. The Refugee in International Law. Oxford: Clarendon Press, 1983.\n\nGrahl‑Madsen, Atle. The Status of Refugees in International Law. (n.p.) Netherlands: A. W. Sijthoff‑Leyden, 1966.\n\nGraves, Maureen. \"From Definition to Exploration: Social Groups and Political Asylum Eligibility\" (1989), 26 San Diego L. Rev. 739.\n\nGross, Douglas. \"The Right of Asylum Under United States Law\" (1980), 80 Colum. L. Rev. 1125.\n\nHathaway, James C. The Law of Refugee Status. Toronto: Butterworths, 1991.\n\nHelton, Arthur C. \"Persecution on Account of Membership in a Social Group As a Basis for Refugee Status\" (1983), 15 Colum. Hum. Rts. L. Rev. 39.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-12", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 12", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Hyndman, Patricia. \"The 1951 Convention Definition of Refugee: An Appraisal with Particular Reference to the Case of Sri Lankan Tamil Applicants\" (1987), 9 Hum. Rts. Q. 49.\n\nPlender, Richard. \"Admission of Refugees: Draft Convention on Territorial Asylum\" (1977-78), 15 San Diego L. Rev. 45.\n\nTakkenberg, Alex and Christopher C. Tahbaz. The Collected Travaux Préparatoires of the 1951 Geneva Convention relating to the Status of Refugees. Vol. 1, Early History and the Ad Hoc Committee on Statelessness and Related Problems 16 January ‑ 16 February 1950 Lake Success, New York and Vol. 3, The Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons 2 ‑ 25 July 1951 Geneva, Switserland [sic]. Amsterdam: Dutch Refugee Council, under the auspices of the European Legal Network on Asylum, 1990.\n\nUnited Nations. Economic and Social Council. Ad Hoc Committee on Statelessness and Related Problems. First Session. Summary record of the Fifth Meeting, Lake Success, New York, 18 January 1950. Mr. Henkin (United States Delegate). UN Doc. E/AC.32/SR.5.\n\nUnited Nations. Economic and Social Council. Ad Hoc Committee on Statelessness and Related Problems. Report of the Ad Hoc Committee on Statelessness and Related Problems. Lake Success, New York, 16 January to 16 February 1950. UN Doc. E/1618 and Corr. 1 ‑ E/AC.32/5.\n\nUnited Nations. Economic and Social Council. Ad Hoc Committee on Statelessness and Related Problems. United Kingdom. Revised draft proposal for Article 1. UN Doc. E/AC.32/L.2/Rev. 1.\n\nUnited Nations. Economic and Social Council. Ad Hoc Committee on Statelessness and Related Problems. United States of America: Memorandum on the Definition Article of the Preliminary Draft Convention Relating to the Status of Refugees (and Stateless Persons). UN Doc. E/AC.32/L.4.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-13", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 13", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "United Nations. General Assembly. Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. Summary Record of the Third Meeting held at the Palais des Nations, Geneva, on Tuesday, 3 July 1951. Mr. Petren (Swedish Delegate). UN Doc A/CONF.2/SR.3.\n\nUnited Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status. Geneva: 1988.\n\nvan der Veen, Job. \"Does Persecution by Fellow‑Citizens in Certain Regions of a State Fall Within the Definition of `Persecution' in the Convention Relating to the Status of Refugees of 1951? Some Comments Based on Dutch Judicial Decisions\" (1980), 11 Netherlands Y.B. Intl. L. 167.\n\nAPPEAL from a judgment of the Federal Court of Appeal, [1990] 2 F.C. 667, 67 D.L.R. (4th) 1, 10 Imm. L.R. (2d) 189, 108 N.R. 60, allowing an application to review and set aside a judgment of the Immigration Appeal Board (1988), 9 Imm. L.R. (2d) 48, finding appellant to be a convention refugee. Appeal allowed.\n\nPeter A. Rekai, M. Christina F. Kurata, LeVern L. Robertson and Constance Nakatsu, for the appellant.\n\nRoslyn J. Levine and Nanette Rosen, for the respondent.\n\nRonald B. Shacter and Phyllis Gordon, for the intervener Canadian Council for Refugees.\n\nBrian A. Crane, Q.C., and Gerald Stobo, for the intervener Immigration and Refugee Board.\n\nWritten submission only for the intervener United Nations High Commissioner for Refugees.\n\n//La Forest J.//\n\nThe judgment of the Court was delivered by\n\nLa Forest J. -- This case raises, for the first time in this Court, several fundamental issues respecting the definition of a \"Convention refugee\" in s. 2(1) of the Immigration Act, 1976, S.C. 1976-77, c. 52, which reads:\n\n2. . . .", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-14", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 14", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "\"Convention refugee\" means any person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,\n\n(a) is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or\n\n(b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country . . .\n\nThis definition was revised somewhat by S.C. 1988, c. 35, s. 1 (R.S.C., 1985, c. 28 (4th Supp.), s. 1(2)), to its current version in the Immigration Act, R.S.C., 1985, c. I-2:\n\n2. (1) . . .\n\n\"Convention refugee\" means any person who\n\n(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,\n\n(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or\n\n(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and\n\n(b) has not ceased to be a Convention refugee by virtue of subsection (2),\n\nbut does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-15", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 15", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The questions raised are the extent to which a claimant's \"well-founded fear of persecution\" must emanate from the state from which the claimant flees, as well as the scope of the enumerated grounds of persecution, particularly \"membership in a particular social group\" and \"political opinion\".\n\nFacts\n\nThe appellant, Patrick Francis Ward, was born in Northern Ireland in 1955. He joined the Irish National Liberation Army (INLA) in 1983 as a volunteer. Ward described the INLA as a ruthless para-military organization more violent than the Irish Republican Army (IRA), with a military-like hierarchy and strict discipline. Before joining as a volunteer, he had loose connections with the INLA in that he had sympathies for their cause. Indeed, Ward had been convicted of the offences of possession of firearms, conspiracy to convey things unlawfully into Northern Ireland, and contributing to acts of terrorism. He testified that with the constant turmoil in Northern Ireland, people were forced to \"take a stand\" to protect their loved ones and that his joining the INLA stemmed in part from a desire to protect himself and his family, mainly from the IRA.\n\nWard's first task as a member of the INLA was to assist in guarding two of the organization's hostages at a farm house in the Republic of Ireland. One day after Ward's guard duties commenced, the INLA ordered the hostages executed. He wanted no part in the execution of these innocent hostages, and underwent what he described as a \"predicament of moral conscience\". As a result, he resolved to release the hostages and succeeded in doing so without revealing himself to the INLA.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-16", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 16", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Some time later, the police let slip to an INLA member that one of their own had assisted the hostages in their escape. The INLA suspected Ward, and he was confined and tortured. Although he never admitted his role in the escape, Ward was court-martialled by a kangaroo court and sentenced to death. However, he managed to escape and sought police protection. The police in turn charged him for his part in the hostage incident, based on finding his fingerprints at the farm where the hostages had been held.\n\nWard expressed concern to the police about his wife and children. The police checked on them, only to discover that they had been taken hostage by the INLA in a pre-emptive move to prevent the claimant from \"turning supergrass\", the colloquial term for providing evidence to the police about INLA members and their activities.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-17", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 17", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Ward pleaded guilty to the offence of forcible confinement and was sentenced to three years in jail. He did not \"turn supergrass\"; nor did he ever admit publicly to having released the hostages. Towards the end of his prison sentence, Ward sought the assistance of the prison chaplain for protection from INLA members. The chaplain, with the assistance of police, obtained a Republic of Ireland passport for Ward and airline tickets to Canada. Ward arrived in Toronto in December 1985 and sought admission to Canada as a visitor. He became the subject of an inquiry in May 1986 and claimed Convention refugee status. His claim was based on a fear of persecution because of his membership in a particular social group, namely the INLA. The Minister of Employment and Immigration determined that Ward was not a Convention refugee and, as a result, he filed an application for redetermination of his claim before the Immigration Appeal Board. The Board allowed the redetermination and found Ward to be a Convention refugee.\n\nThe respondent, the Attorney General of Canada, brought an application under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to review and set aside the decision of the Board. This application was granted by the Federal Court of Appeal, which set aside the decision and referred the matter back to the Board for reconsideration.\n\nJudgments\n\nImmigration Appeal Board (1988), 9 Imm. L.R. (2d) 48 (K. J. Arkin for the Board)", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-18", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 18", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Board approached the case on the basis that two issues fell to be decided pertaining to the definition of a \"Convention refugee\": whether the definition contemplates a claimant whose country of nationality is unable to protect him adequately, and whether the definition requires state complicity in the persecution of the claimant. On the latter question, the Board found the authorities inconclusive but ruled that the definition does not necessarily contemplate state complicity in the persecution of a claimant, and, at p. 59, that \"the state's being unable to offer effective protection is sufficient\".\n\nTurning to the first issue, the Board, at p. 59, found the requirement that the claimant be unable or unwilling to avail himself of the protection of his home state was \"inextricably intertwined\" with the state's inability to offer effective protection. Moreover, the Board reasoned as follows, at p. 59, on the link between persecution and protection:\n\nFear of persecution and lack of protection are also interrelated elements. Persecuted persons clearly do not enjoy the protection of their country of origin and evidence of the lack of protection may create a presumption as to the likelihood of persecution and to the well-foundedness of any fear.\n\nAs such, the Board concluded as follows, at p. 60:", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-19", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 19", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "In view of the basic nature of the test imposed by the definition of Convention refugee, i.e., whether or not the applicant has a well-founded fear of persecution for one of the enumerated reasons, it is reasonable, even necessary, to consider the state's ability to provide adequate protection to the applicant: to the extent that the state is unable to protect the individual, the applicant will have good reason to fear persecution. The reason for the state's inability to provide adequate protection from persecution seems irrelevant. The question in any such case then becomes whether or not there exists \"adequate\" protection. [Emphasis in original.]\n\nOn the key question of the state's ability to protect Ward, the Board, at p. 54, found Ward to be a \"completely credible witness\". It accepted that his life would be in danger if he were required to return to Northern Ireland because of the death sentence passed by the INLA and the threat he posed to that organization's security. Although Irish police had offered Ward protection, such protection would not be effective.\n\nThe Board turned its mind to the question of Ward's nationality, a question of immediate relevance given the proviso in the statutory definition that a refugee claimant be unable or unwilling to avail himself of the protection of \"the country of [his] nationality\". On this point, the Board found as follows, at p. 54:", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-20", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 20", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Clearly, the evidence established that the claimant is a citizen of Ireland, both Northern Ireland and the Republic of Ireland. However, no evidence was presented to the Board to establish that the claimant is also a citizen of the United Kingdom. In response to questions put to him in cross-examination, the claimant testified that as a citizen of Northern Ireland, he is entitled to live in Britain unless he is excluded under the Protection of Terrorism Actof the United Kingdom, whereunder anyone with terrorist connections can be refused entry to British mainland. While the respondent questioned the reasonableness of the claimant's fear of the INLA were he to return to Britain, the respondent did not establish either the claimant's right to live in Britain or the claimant's right to citizenship in the United Kingdom. Accordingly, the Board finds the claimant's country of nationality to be Northern Ireland and the Republic of Ireland.\n\nHowever, in a footnote to its reasons, at p. 55, the Board went on to note the following:\n\nHad the Board concluded that the claimant was also a national of the United Kingdom, the Board would have made a finding that the claimant's life would be in danger from the INLA if he was returned to the United Kingdom.\n\nIn the result, the Board determined that Ward was a Convention refugee.\n\nFederal Court of Appeal, [1990] 2 F.C. 667", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-21", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 21", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "On appeal to the Federal Court of Appeal, the Attorney General advanced three basic arguments: the Board failed to consider whether the INLA was a \"particular social group\" within the terms of s. 2(1) of the Act; the Board erred in finding that there was no requirement of state complicity in \"persecution\"; and it erred in finding that Ward's only countries of nationality were Northern Ireland and the Republic of Ireland. Urie J.A., writing for himself and Marceau J.A., found that the Board had erred on the first and third of these points. MacGuigan J.A. held that the Board had erred only with respect to the third issue.\n\nOn the first question, Urie J.A. reasoned that persecution for reasons of social group membership can occur only when the group's activities are perceived to be a possible danger to the government. He stated, at p. 677:\n\nThe INLA activities are clearly contrary to the interests of the government of Northern Ireland and of the United Kingdom. But mere membership does not, of itself, substantiate a claim to refugee status. A fortiori, membership does not substantiate a claim to refugee status based upon a fear arising from acts committed by a member of the group contrary to the interests of the group, which group interests are themselves contrary to the well-being of the state. [Emphasis in original.]", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-22", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 22", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "In other words, if the claimant's fear arose from within the group itself and not the state, it cannot provide the basis of a claim of persecution. Urie J.A. was not persuaded that Ward, who feared persecution from the organization to which he belonged, was entitled to the protection afforded bona fide refugees who meet all the elements in the definition of Convention refugee. The fact that he was a member who had acted contrary to the interests of the INLA did not bring him within the definition. Urie J.A. remarked, at p. 678, that \"[i]f such a view were to be taken anyone who dissents on anything could be said to be a member of a particular social group\", a proposition he considered absurd. He rejected the argument that any group engaged in political activity would fall under the definition of a social group. Such an approach, he reasoned, would render the \"political opinion\" segment of the \"Convention refugee\" definition redundant.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-23", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 23", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "In dissent, MacGuigan J.A. opined that there could be no serious argument that the INLA is not literally a particular social group since its members (at p. 689) \"are united in a stable association with common purposes\". He did not agree that \"social group\" must be deemed to exclude terrorists. However, even conceding this point, he noted that Ward had abandoned the group because of its terrorism and that the social group here at issue included members and former members of the INLA. The group's general commitment to terrorism did not, in his view, mean that Ward, as an individual, was unable to terminate his adherence to it. For MacGuigan J.A., the \"true gravamen\" of Ward's fear of persecution sprang from his membership in the organization, rather than from his misbehaviour as a member, since the INLA's motivation in sentencing him to death was, at least in part, to prevent future disclosures about the activities of the group. He further noted that a determination that Ward was a Convention refugee would not automatically entitle him to remain in Canada, as he would still be subject to the exceptions in s. 19 of the Act relating to previous convictions, espionage or subversion.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-24", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 24", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "On the second issue, the need for state complicity in persecution, Urie J.A. appears to have decided that such state complicity is a prerequisite for \"persecution\" under the Act. In support of this, he turned to the requirements of the definition that a claimant be \"unable\" or \"unwilling\" to seek the assistance of his home state. Urie J.A. found that being \"unable\" to avail oneself of the protection of his national state meant, at p. 680, \"quite literally that the claimant cannot, because of his physical inability to do so, even seek out the protection of his state. These imply circumstances over which he has no control and is not a concept applicable in facts of this case.\" On the \"unwillingness\" branch of the test, Urie J.A. made the following remarks, at p. 680:", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-25", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 25", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "If a claimant is \"unwilling\" to avail himself of the protection of his country of nationality, it is implicit from that fact that his unwillingness stems from his belief that the State and its authorities, cannot protect him from those he fears will persecute him. That inability may arise because the State and its authorities are either themselves the direct perpetrators of the feared acts of persecution, assist actively those who do them or simply turn a blind eye to the activities which the claimant fears. While there may well be other manifestations of it, these possibilities clearly demonstrate that for the claimant to be unwilling to avail himself of the protection of his country of nationality, to provide the foundation for a claim to be a refugee he must establish that the State cannot protect him from the persecution he fears arising, in this case, from his former membership in the INLA, i.e., he must establish that what he fears is in fact persecution as that term is statutorily and jurisprudentially understood. On that basis the involvement of the State is sine qua non where unwillingness to avail himself of the protection is the fact. [Emphasis in original.]\n\nUrie J.A. found that the Board had confused the determination of persecution and ineffective protection. He also rejected the Board's finding that evidence of the lack of protection may create a presumption regarding the likelihood of persecution and the well-foundedness of any fear.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-26", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 26", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "MacGuigan J.A. rejected the contention that the Board erred in its definition of persecution. In his view, the wording of s. 2(1)(a) of the Act does not necessarily import state complicity. While agreeing that \"is unable\" probably means literally unable, he found no reason to limit the sense of \"is unwilling\" to a single meaning. He stated, at pp. 697-98:\n\nIn sum, I believe that taking into account (1) the literal text of the statute, (2) the absence of any decisive Canadian precedents, and (3) the weight of international authority, the Board's interpretation of the statutory definition is the preferable one. No doubt this construction will make eligible for admission to Canada claimants from strife-torn countries whose problems arise, not from their nominal governments, but from various warring factions, but I cannot think that this is contrary to \"Canada's international legal obligations with respect to refugees and . . . its humanitarian tradition with respect to the displaced and the persecuted\".\n\nIn his view, then, persecution need not emanate from the state.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-27", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 27", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The third argument of the Attorney General, we saw, was that the Board erred in holding that no evidence had been presented to establish that Ward was a citizen of the United Kingdom, as well as of Northern Ireland and the Republic of Ireland. Ward replied that while Northern Ireland was part of the United Kingdom, he did not have an unrestricted right to live anywhere in the United Kingdom as a result of the Prevention of Terrorism (Temporary Provisions) Act 1984, 1984 (U.K.), c. 8, under which he could be refused admission because of his terrorist activities. On this question Urie J.A. cited, at p. 685, the second paragraph of Art. 1(A)(2) of the Convention, which, while \"not binding upon us since it has not been incorporated into Canadian law, . . . persuasive as forming a logical construction of the Convention refugee definition\". Urie J.A. held, at p. 683, that \"if it is found that he has more than one country of nationality the claimant is obliged to establish his unwillingness to avail himself of the protection of each of his countries of nationality before he can be considered to be a Convention refugee\" (emphasis in original). In this respect, Urie J.A. remarked, at p. 685:\n\n. . . I am of the opinion that a refugee claimant must establish that he is unable or unwilling to avail himself of all of his countries of nationality. It is the nationality of the claimant which is of prime importance. The right to live in his country of nationality becomes relevant only in the discharge of the onus on him of proving that he is unable to avail himself of the country of which he has established he is a national. [Emphasis in original.]", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-28", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 28", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Not only did the Board fail to address the issue, he stated, at p. 685: \"it compounded the error because it perceived that it was the Crown which had the onus of establishing `either the claimant's right to live in Britain or the claimant's right to citizenship in the United Kingdom'.\" Urie J.A. noted that s. 8(1) of the Act states that the burden of proof for a person seeking to enter Canada rests on that person. On this point, MacGuigan J.A. was largely in agreement with the majority. All three judges were of the view that the issue of whether Ward could avail himself of the protection of the United Kingdom should be returned to the Board for determination.\n\nIssues\n\nI propose to approach the issues raised by the parties in the following order:\n\nA. Persecution and State Complicity\n\n(a) Is the element of state complicity, either through direct persecution, collusion with the persecuting agents, or wilful blindness to the actions of the persecuting agents, a requisite element in establishing a refugee claimant's \"unwillingness\" to avail him- or herself of the protection of his or her country of nationality?\n\n(b) Is a claimant considered \"unable\" to avail him- or herself of the protection of the state only in those circumstances where he or she is physically unable to seek out this protection?\n\nB. Membership in a Particular Social Group\n\n(a) What is the meaning of the phrase, \"particular social group\", as used in the definition of Convention refugee in s. 2(1) of the Immigration Act, 1976.\n\n(b) Is there any basis for the exclusion of some kinds of social groups as a result of their objectives or the unlawful methods employed by their members?\n\nC. Political Opinion", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-29", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 29", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Whether desertion or dissension from a politico-military organization for reasons of conscience may properly ground a claim to be a Convention refugee on the basis of a well-founded fear of persecution for reasons of political opinion.\n\nD. Section 15 of the Canadian Charter of Rights and Freedoms\n\nWhether the interpretation of \"Convention refugee\" by the majority of the Federal Court of Appeal is consistent with s. 15 of the Charter .\n\nE. Double Nationality\n\nWhere evidence establishes that a refugee claimant has more than one country of nationality, does the claimant have the burden of establishing that he or she is unwilling or unable to avail him- or herself of the protection of each country of nationality, pursuant to the definition of \"Convention refugee\"?\n\nAnalysis\n\nAt the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. For this reason, James Hathaway refers to the refugee scheme as \"surrogate or substitute protection\", activated only upon failure of national protection; see The Law of Refugee Status (1991), at p. 135. With this in mind, I shall now turn to the particular elements of the definition of \"Convention refugee\" that we are called upon to interpret.\n\nA. Persecution and State Complicity", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-30", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 30", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The persecution alleged by the appellant emanates from non-state actors, the INLA; the Government of Ireland is in no way involved in it. This case, then, raises the question whether state involvement is a prerequisite to \"persecution\" under the definition of \"Convention refugee\" in the Act. The precise issues are phrased differently by the parties, but can be summarized in the following fashion. First, is there a requirement that \"persecution\" emanate from the state? Second, does it matter whether the claim is based on the \"unable\" or \"unwilling\" branch of the definition? In my view, the answer to both these questions is no. A third issue is the test for establishing a \"well-founded fear of persecution\" under the Act.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-31", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 31", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent Attorney General, while arguing that state complicity is a prerequisite to persecution, conceded that a state's inability to protect its citizens from persecution is sufficient state complicity to satisfy the Convention definition. She also conceded that the Government of Ireland was unable to protect the appellant. As such, the respondent confined her argument to the fact that the appellant did not establish before the tribunal that the United Kingdom was similarly unable to protect him. On the second issue, she maintained that when a claimant asserts that he or she is \"unwilling\" to seek the protection of his or her home state, he or she must also establish that the reason for such unwillingness is state complicity (which, it is conceded, can be extended to the state's inability to protect). The respondent also contended that there is no such prerequisite for state complicity when the refugee asserts that he or she is \"unable\" to seek the protection of his or her home state. The appellant argued that the definition of persecution must be \"neutral\", with no requirement for state complicity. Further, he also accepted that there is a distinction between \"unable\" and \"unwilling\", but that a claimant's unwillingness can relate back to persecution neutrally defined. The unwillingness, when combined with the inability of the claimant's state to protect him or her from the persecution, will ground a refugee claim.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-32", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 32", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "When one considers the arguments of the appellant and respondent, it becomes apparent that their positions are in reality almost congruent, differing only as to the point at which the inability of the state to protect becomes a necessary ingredient of the definition. The real difference between the parties is on the question of the appellant's unwillingness to return to Great Britain as well as Ireland, a matter that is discussed later as a separate issue.\n\nThe intervener Council for Refugees agrees that the Convention definition does require a claimant to demonstrate an inability by his or her state to protect from non-governmental acts of persecution. It contends that this is inherent in the definition rather than a question arising from the term \"unwilling\". It argues that \"unable\" and \"unwilling\" refer only to the refugee claimant's situation outside the country, vis-à-vis the consular officials of his or her home country.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-33", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 33", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The United Nations High Commissioner for Refugees intervened to argue that the distinction between \"unable\" and \"unwilling\" is irrelevant to this appeal, that there is no requirement for state complicity in the definition, and that the proper focus should be on whether the claimant, because of the state's inability to protect, is \"unable\" or \"unwilling\" to seek the protection of the authorities in his or her home state. The High Commissioner also endorses the position of the Board that the absence of protection may create a sufficient evidentiary basis for a presumption of a well-founded fear by the claimant. For its part, the Board intervened to argue against any state complicity requirement, maintaining instead that the interpretation of the \"Convention refugee\" definition should be flexible enough to allow the Board to respond on a case by case basis, given the variety of conditions in the contemporary world that give rise to refugee movements.\n\nIn sum, the parties, including the respondent, appear to be unanimous in concluding that the court below was wrong to suggest that the claimant's fear must emanate from the state. As well, there is substantial agreement that a state's inability to protect is an integral component of the notion of a Convention refugee, although the parties differ as to the point in the analysis at which such component is injected into the definition. I find that the consensus reached by the parties is substantially correct. As will be apparent, the majority of the court below would appear to be isolated in its views on state complicity. The majority placed undue emphasis on the distinction between \"unwilling\" and \"unable\" in this case.\n\nIt is perhaps useful to begin by returning to the text in question:\n\n2. (1) . . .", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-34", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 34", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "\"Convention refugee\" means any person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,\n\n(a) is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or\n\n(b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country . . . .\n\nThe section appears to focus the inquiry on whether there is a \"well-founded fear\". This is the first point the claimant must establish. All that follows must be \"by reason of\" that fear. The first category requires the claimant to be outside the country of nationality by reason of that fear and unable to avail him- or herself of its protection. The second requires that the claimant be both outside the country of nationality and unwilling to avail him- or herself of its protection, by reason of that fear. Thus, regardless of the category under which the claimant falls, the focus is on establishing whether the fear is \"well-founded\". It is at this stage that the state's inability to protect should be considered. The test is in part objective; if a state is able to protect the claimant, then his or her fear is not, objectively speaking, well-founded. Beyond this point, I see nothing in the text that requires the state to be complicit in, or be the source of, the persecution in question.\n\nState Complicity", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-35", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 35", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "My conclusion that state complicity in persecution is not a pre-requisite to a valid refugee claim is reinforced by an examination of the history of the provision, the prevailing authorities, and academic commentary. On the first point, the parties argue that there is no evidence in the drafting history, the Travaux préparatoires, suggesting that persecution was linked to state action. The draft proposed by the United States delegate mentions only the omission of \"person[s] who leave. . . or ha[ve] left [their] country of nationality or of former habitual residence for reasons of purely personal convenience\" from the definition of \"Convention refugee\"; see UN doc. E/AC.32/L.4 (January 18, 1950), paragraph B., at p. 3. The revised draft proposed by the United Kingdom did not qualify the word \"persecution\" in any way, though it did make reference to state authorities in requiring that the claimant \"does not wish to return to that country for good and sufficient reason or is not allowed by the authorities of that country to return there\"; see UN doc. E/AC.32/L.2/Rev. 1 (January 19, 1950). The omission of a reference to state action does not tell us much, however. The question was apparently never discussed, and the text does not reveal that any link to state action is required.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-36", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 36", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the drafting history of the Convention may not go far in justifying the exclusion of state complicity from the interpretation of \"Convention refugee\", other sources provide more convincing support. A much-cited guide on this question is paragraph 65 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (\"UNHCR Handbook\"). While not formally binding on signatory states, the Handbook has been endorsed by the states which are members of the Executive Committee of the UNHCR, including Canada, and has been relied upon by the courts of signatory states. Paragraph 65 of the UNHCR Handbook reads:\n\n65. Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizeable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection. [Emphasis added.]\n\nThe position reflected in the UNHCR Handbook, therefore, is that acts by private citizens, when combined with state inability to protect, constitute \"persecution\".", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-37", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 37", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The absence of a state complicity requirement has also been endorsed by academics; see Job van der Veen, \"Does Persecution by Fellow-Citizens in Certain Regions of a State Fall Within the Definition of `Persecution' in the Convention Relating to the Status of Refugees of 1951? Some Comments Based on Dutch Judicial Decisions\" (1980), 11 Netherlands Y.B. Intl. L. 167, at p. 172; J. Hathaway, supra, at p. 127; Guy S. Goodwin-Gill, The Refugee in International Law (1983), at p. 42; Patricia Hyndman, \"The 1951 Convention Definition of Refugee: An Appraisal with Particular Reference to the Case of Sri Lankan Tamil Applicants\" (1987), 9 Hum. Rts. Q. 49, at p. 67; Douglas Gross, \"The Right of Asylum Under United States Law\" (1980), 80 Colum. L. Rev. 1125, at p. 1139; Atle Grahl-Madsen, The Status of Refugees in International Law (1966), at p. 191.\n\nCanadian decisions reflect the growing consensus that state complicity is not necessary. Two recent cases in the Federal Court of Appeal should be noted. First, in Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129, the court seems to suggest that a state's inability to protect is a sub-set of state complicity. The case involved a refugee claimant from Sri Lanka, who was persecuted by other citizens because of his religious convictions. The police were largely indifferent to this persecution. Heald J.A., writing for the majority, found that persecution need not be at the hands of state agents. As for \"unwillingness\", he found that the police indifference justified the claimant's reluctance to seek their protection. Stone J.A. concurred, stating at p. 135:", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-38", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 38", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Obviously, an individual cannot be considered a \"Convention refugee\" only because he has suffered in his homeland from the outrageous behaviour of his fellow citizens. To my mind, in order to satisfy the definition the persecution complained of must have been committed or been condoned by the state itself and consist either of conduct directed by the state toward the individual or in it knowingly tolerating the behaviour of private citizens, or refusing or being unable to protect the individual from such behaviour.\n\nAs I understand him, Stone J.A. argues that there must be state complicity, but that concept is broadly defined to include a state's inability to protect its citizen from private persecution.\n\nThe facts of the second case, Surujpal v. Minister of Employment and Immigration (1985), 60 N.R. 73, are somewhat similar. There the claimants claimed to have been persecuted by non-state agents because they were members of the opposition. They sought assistance from the police, and were refused. In an oral judgment, MacGuigan J.A. stressed the \"police complicity\" in the persecution. The majority in the present case seized upon this phrase as evidence that the proper test is state involvement in the persecution. However, MacGuigan J.A. observed that his statement in Surujpal was made in the context of the facts before him, and he appears to suggest that he was not attempting to elucidate a test, but was simply describing the conduct in that case. For him \"state complicity\" also appears to be sufficiently broad to encompass the state's inability to protect.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-39", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 39", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "This approach is confirmed by the court's recent judgment in Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605, where Décary J.A. bases his reasons on the inability of the state to protect. In doing so, Décary J.A. endorsed the position articulated in paragraph 65 of the UNHCR Handbook. I shall canvass this decision in more detail later.\n\nThe jurisprudence in the United States, which is also a party to the Convention, also supports the interpretation that \"a well-founded fear of persecution\" includes the actions of non-governmental persecutors where the state cannot or will not protect the claimant from those actions. In McMullen v. Immigration and Naturalization Service, 658 F.2d 1312 (9th Cir. 1981), at p. 1315, the Court of Appeal interpreted \"likelihood of persecution\" in the context of deciding whether a deserter from the Provisional IRA was deportable. The court found the concept to include \"[p]ersecution by the government or by a group which the government is unable to control\". This principle was reiterated in Artiga Turcios v. I.N.S., 829 F.2d 720 (9th Cir. 1987), at p. 723; Arteaga v. I.N.S., 836 F.2d 1227 (9th Cir. 1988), at p. 1231; and Estrada-Posadas v. I.N.S., 924 F.2d 916 (9th Cir. 1991), at p. 919.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-40", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 40", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The international community was meant to be a forum of second resort for the persecuted, a \"surrogate\", approachable upon failure of local protection. The rationale upon which international refugee law rests is not simply the need to give shelter to those persecuted by the state, but, more widely, to provide refuge to those whose home state cannot or does not afford them protection from persecution. The former is, of course, comprised in the latter, but the drafters of the Convention had the latter, wider purpose in mind. The state's inability to protect the individual from persecution founded on one of the enumerated grounds constitutes failure of local protection.\n\nI, therefore, conclude that persecution under the Convention includes situations where the state is not in strictness an accomplice to the persecution, but is simply unable to protect its citizens.\n\nUnable/Unwilling\n\nI now turn to the second question. I would agree with the court below that \"unable\" and \"unwilling\" have different meanings, which are fairly apparent on their face. One can say that \"unable\" means physically or literally unable, and that \"unwilling\" simply means that protection from the state is not wanted for some reason, though not impossible. This would, at first sight, seem to be a clear distinction, but as we shall see it has become somewhat blurred.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-41", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 41", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "There is some evidence from the Travaux préparatoires on the development of the distinction between the two concepts. The Report of the First Ad Hoc Committee on Statelessness and Related Problems, February 17, 1950 (U.N. Doc. E/1618 and Corr. 1), contained a draft Convention which included a definition of \"refugee\" that was conceptually similar to the current definition. However, the draft version linked \"unwilling\" with claimants who were entitled to seek the protection of their state, whereas \"unable\" was used in connection with stateless individuals. The Committee commented as follows (at p. 415 of the Travaux préparatoires):\n\nThe Committee agreed that for the purposes of this sub-paragraph . . . and therefore for the draft convention as a whole, \"unable\" refers primarily to stateless refugees, but includes also refugees possessing a nationality who are refused passports or other protection by their own government. \"Unwilling\" refers to refugees who refuse to accept the protection of the government of their nationality.\n\nThis has generally been taken as creating a distinction between refugees with a nationality and those who are stateless; see Goodwin-Gill, supra, at p. 25, n. 23. But when the definition was revised to its current form, \"unable\" was used in connection with both nationals and stateless persons. The Board argues that this revision demonstrates that the term \"unable\" can apply to those with a nationality, and that the distinction between \"unable\" and \"unwilling\" has become blurred. Indeed, this argument is supported by the commentary in the UNHCR Handbook, paragraphs 98-100:", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-42", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 42", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "98. Being unable to avail himself of such protection implies circumstances that are beyond the will of the person concerned. There may, for example, be a state of war, civil war or other grave disturbance, which prevents the country of nationality from extending protection or makes such protection ineffective. Protection by the country of nationality may also have been denied to the applicant. Such denial of protection may confirm or strengthen the applicant's fear of persecution, and may indeed be an element of persecution.\n\n99. What constitutes a refusal of protection must be determined according to the circumstances of the case. If it appears that the applicant has been denied services (e.g., refusal of a national passport or extension of its validity, or denial of admittance to the home territory) normally accorded to his co-nationals, this may constitute a refusal of protection within the definition.\n\n100. The term unwilling refers to refugees who refuse to accept the protection of the Government of the country of their nationality. It is qualified by the phrase \"owing to such fear\". Where a person is willing to avail himself of the protection of his home country, such willingness would normally be incompatible with a claim that he is outside that country \"owing to well-founded fear of persecution\". Whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee. [Emphasis in original.]", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-43", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 43", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "This would appear to be an entirely reasonable reading of the current definition. With respect to \"unable\", it would appear that physical or literal impossibility is one means of triggering the definition, but it is not the only way. Thus ineffective state protection is encompassed within the concept of \"unable\" and \"unwilling\", and I am left with the conclusion that the appellant here could have pursued his claim under either category. As such, the distinctions made in the court below were really of no great importance for the purposes of this case.\n\nThe majority in the court below, although somewhat unclear on the point, appeared to suggest that \"unable\" requires no state complicity, but that \"unwilling\" does. This dichotomy is not, in my view, supported by text of the section or the relevant authorities. As MacGuigan J.A. noted in dissent, the distinction begs the real question of what state complicity means. As we have seen, all parties agree at a minimum that state complicity encompasses an inability to protect. Thus, even if the Court of Appeal's dichotomy were supportable, it would not preclude the appellant's refugee claim.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-44", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 44", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court of Appeal again considered the dichotomy in Zalzali v. Canada (Minister of Employment and Immigration), supra. That case involved a Lebanese national claiming fear of persecution from one of the various warring militias in that country. His persecutors were thus not agents of the state. Nonetheless, the Court of Appeal ruled that he fell within the definition of a \"refugee\". The court there accepted the dichotomy between \"unable\" and \"unwilling\" as used in its judgment in the present case and concluded that state complicity was a sine qua non of persecution only under the latter term. The court further found that the claimant was \"unable\" to seek the protection of the Lebanese government, as that government had quite literally ceased to exist during Lebanon's civil war.\n\nDécary J.A., writing for the court, concluded at p. 611 that there can be persecution within the meaning of the Act where there is no form of guilt, complicity or participation by the state. His conclusions are largely stated in the context of the \"unable\" branch of the definition, in deference to its judgment in the present case. However, there are hints in his reasons that he would be willing to apply the same analysis to the \"unwilling\" branch of the section. He notes that Court of Appeal's reasons in the present case should be applied \"with the utmost caution\", and his conclusions on state complicity are stated initially without reference to the dichotomy between \"unwilling\" and \"unable\". Indeed, much of his reasoning is not grounded in the dichotomy.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-45", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 45", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Décary J.A. draws on a variety of sources to conclude that persecution can arise from one's fellow nationals, when the government is unable to protect the victim against what they are doing. I am persuaded by the reasoning of these authorities that there is no requirement for state complicity in the Act.\n\nThe Council for Refugees and the Board argued, convincingly in my view, that there is simply no need for a judicial gloss of the meaning of \"unwilling\" and \"unable\". As the Council argued, there is a clear distinction between the state's being unable to protect its citizens while they are situated in that state (which is considered in the \"fear of persecution\" analysis) and the individual's being \"unable\" to avail him- or herself of that protection, which refers to the relationship between the individual and the state outside the country.\n\nWhether the claimant is \"unwilling\" or \"unable\" to avail him- or herself of the protection of a country of nationality, state complicity in the persecution is irrelevant. The distinction between these two branches of the \"Convention refugee\" definition resides in the party's precluding resort to state protection: in the case of \"inability\", protection is denied to the claimant, whereas when the claimant is \"unwilling\", he or she opts not to approach the state by reason of his or her fear on an enumerated basis. In either case, the state's involvement in the persecution is not a necessary consideration. This factor is relevant, rather, in the determination of whether a fear of persecution exists.\n\nTest for Determining Fear of Persecution", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-46", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 46", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the court below, Urie J.A. appears to have taken greatest exception to the linkages made by the Board between various concepts inherent in the definition. Specifically, the Board linked the claimant's unwillingness to the state's inability to protect, and tied the former concept to the well-foundedness of the fear of persecution. These appear to be unobjectionable propositions. The problem for Urie J.A. arose from the Board's conclusion that a lack of state protection creates a presumption of persecution and well-foundedness of the claimant's fears. Although not cited, the Board's expression of this presumption is taken almost verbatim from Goodwin-Gill, supra, at p. 38.\n\nUrie J.A. appears to have concluded that the Board erred by making some sort of algebraic link between the various propositions advanced, thereby engaging in a process of circular reasoning. In his view, the Board developed a causative relationship between the claimant's unwillingness and persecution, by linking both concepts to the issue of whether the claimant's fear is well-founded. However, in Zalzali Décary J.A. had occasion to comment on his colleague's concerns, at p. 610, as follows:", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-47", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 47", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Ward, at 680, Urie, J.A., said it was important to avoid confusing \"the determination of persecution and ineffective protection\" and that \"the two concepts must be addressed and satisfied independently\" but, if I understand his conclusion correctly, as indicated at p. 681, he was anxious to avoid as a matter of fact having one (ineffective protection) serve as a presumption in favour of the other (persecution). I do not think he meant to say that these two concepts could not be interconnected for the purposes of interpreting the definition of a refugee in law. In my view, to accurately define what a refugee is it is important to examine the wording as a whole and interpret the whole in light of its component parts.\n\nWith respect to both Décary and Urie JJ.A., it is not clear to me that the Board purported to make an algebraic link, at least in the causative sense that Urie J.A. perceives.\n\nIt is clear that the lynch-pin of the analysis is the state's inability to protect: it is a crucial element in determining whether the claimant's fear is well-founded, and thereby the objective reasonableness of his or her unwillingness to seek the protection of his or her state of nationality. Goodwin-Gill's statement, the apparent source of the Board's proposition, reads as follows, at p. 38:\n\nFear of persecution and lack of protection are themselves interrelated elements. The persecuted clearly do not enjoy the protection of their country of origin, while evidence of the lack of protection on either the internal or external level may create a presumption as to the likelihood of persecution and to the well-foundedness of any fear. [Emphasis added.]", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-48", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 48", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. But I see nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection. The presumption is not a great leap. Having established the existence of a fear and a state's inability to assuage those fears, it is not assuming too much to say that the fear is well-founded. Of course, the persecution must be real ‑‑ the presumption cannot be built on fictional events ‑‑ but the well-foundedness of the fears can be established through the use of such a presumption.\n\nIn this case, the presumption was apparently of some importance to the Board. It found the appellant to be a credible witness, thus accepting that he had a legitimate fear of persecution. Since Ireland's inability to protect was established through evidence that state agents had admitted their ineffectiveness, the Board was then able to presume the well-foundedness of the claimant's fears. In my view, this approach is correct and suffices for a finding of fear of persecution in this case.\n\nMore generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134:", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-49", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 49", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.\n\nSee also Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.), at p. 173. In the present case, the only real issue is the objective test. The Board here found Ward to be credible in his testimony, thus establishing the subjective branch. The issue is whether the fear is objectively justifiable.\n\nDoes the plaintiff first have to seek the protection of the state, when he is claiming under the \"unwilling\" branch in cases of state inability to protect? The Immigration Appeal Board has found that, where there is no proof of state complicity, the mere appearance of state ineffectiveness will not suffice to ground a claim. As Professor Hathaway, supra, puts it, at p. 130:\n\nObviously, there cannot be said to be a failure of state protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming:\n\nA refugee may establish a well-founded fear of persecution when the official authorities are not persecuting him if they refuse or are unable to offer him adequate protection from his persecutors . . . however, he must show that he sought their protection when he is convinced, as he is in the case at bar, that the official authorities ‑‑ when accessible ‑‑ had no involvement ‑‑ direct or indirect, official or unofficial ‑‑ in the persecution against him. (José Maria da Silva Moreira, Immigration Appeal Board Decision T86-10370, April 8, 1987, at 4, per V. Fatsis.)", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-50", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 50", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "This is not true in all cases. Most states would be willing to attempt to protect when an objective assessment established that they are not able to do this effectively. Moreover, it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.\n\nLike Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection \"might reasonably have been forthcoming\", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of \"Convention refugee\" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-51", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 51", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-52", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 52", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Federal Court of Appeal's disposition in Satiacum may best be explained as exemplifying such a case of presumption of a state's ability to protect and of objective unreasonability in the claimant's failure to avail himself of this protection. In that case, an American Indian chief who was convicted of federal criminal charges fled to Canada before sentencing. Arrested in Canada a year later, he claimed refugee status. The persecution he alleged to have feared was a risk to his life if incarcerated in a federal prison. The Federal Court of Appeal found that Satiacum's fear did not meet the objective component of the test for fear of persecution, as it must be presumed that the United States judicial system is effective in affording a citizen just treatment. The court stated, at p. 176:\n\nIn the absence of exceptional circumstances established by the claimant, it seems to me that in a Convention refugee hearing, as in an extradition hearing, Canadian tribunals have to assume a fair and independent judicial process in the foreign country. In the case of a nondemocratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-53", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 53", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although this presumption increases the burden on the claimant, it does not render illusory Canada's provision of a haven for refugees. The presumption serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant. Refugee claims were never meant to allow a claimant to seek out better protection than that from which he or she benefits already.\n\nIn summary, I find that state complicity is not a necessary component of persecution, either under the \"unwilling\" or under the \"unable\" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. I recognize that these conclusions broaden the range of potentially successful refugee claims beyond those involving feared persecution at the hands of the claimant's nominal government. As long as this persecution is directed at the claimant on the basis of one of the enumerated grounds, I do not think the identity of the feared perpetrator of the persecution removes these cases from the scope of Canada's international obligations in this area. On this note, I now turn to a consideration of these enumerated grounds.\n\nB. Membership in a Particular Social Group", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-54", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 54", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 2(1) of the Act limits the grounds for a Convention refugee's well-founded fear of persecution to five possibilities: \"race, religion, nationality, membership in a particular social group or political opinion\". The appellant justifies his claim to Convention refugee status on the basis of his well-founded fear of persecution at the hands of the INLA, should he return to Northern Ireland, by reason of his membership in a particular social group, i.e., the INLA. The first issue to be addressed, therefore, is the scope of \"particular social group\" and whether this enumerated basis of persecution embraces INLA members.\n\nAttempts at defining the range of the category of \"particular social group\" in this case were not made until reaching the Federal Court of Appeal. The Immigration Appeal Board did not broach the issue, seemingly assuming that the INLA did indeed constitute a particular social group. In the Court of Appeal, the majority adopted a very narrow definition, at p. 674, excluding \"groups who by acts of terrorism seek to promote their aims, in this case the overthrow of the duly constituted authority\". MacGuigan J.A., on the other hand, delineated the reach of this category loosely, at p. 689, including within it any \"stable association with common purposes\". In my opinion, the proper scope of \"particular social group\" lies in between these two extremes, but would still exclude from its ambit Ward's membership in the INLA.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-55", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 55", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Canadian jurisprudence in which \"particular social group\" is interpreted has, until very recently, been quite sparse; the cases that did deal with this notion were usually handled on their own particular facts and lacked guidance with respect to a more general interpretation of the category: see Astudillo v. Minister of Employment and Immigration (1979), 31 N.R. 121 (F.C.A.), Arrechea Gonzalez v. Minister of Employment and Immigration (1991), F.C.A. A-899-90, Ahmed v. Minister of Employment and Immigration (1990), F.C.A. A-215-90, Lai v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. 245, Osorio Cruz v. Minister of Employment and Immigration (1988), I.A.B.D. M88-20043X, Nalliah v. Minister of Employment and Immigration (1987), I.A.B.D. M84-1642, Escoto v. Minister of Employment and Immigration (1987), I.A.B.D. T87-9024X, Incirciyan v. Minister of Employment and Immigration (1987), I.A.B.D. M87-1541X/M87-1248 and Balareso v. Minister of Employment and Immigration (1985), I.A.B.D. M 83-1542. Recently, the Federal Court of Appeal has begun to articulate a test which attempts to achieve a middle ground between the two positions advanced by the majority and the minority in the Court of Appeal in the present case: see Cheung v. Minister of Employment and Immigration, [1993] F.C.J. No. 309 (Q.L.), Appeal No. A-785-91 (F.C.A.) and Mayers v. Canada (Minister of Employment and Immigration) (1992), 97 D.L.R. (4th) 729. I shall address these two decisions in some detail below. International and foreign sources are also of considerable significance in the study of the meaning of \"particular social group\" and specifically in evaluating the test proposed recently by the Federal Court of Appeal.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-56", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 56", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "An examination of the Canadian and foreign doctrine and jurisprudence reveals three advocated approaches:\n\n(1) A very wide definition, similar to that adopted by MacGuigan J.A., pursuant to which the class serves as a safety net to prevent any possible gap in the other four categories;\n\n(2) A narrower definition that confines its scope by means of some appropriate limiting mechanism, recognizing that this class is not meant to encompass all groups; and\n\n(3) An even narrower definition, paralleling that formulated by the majority of the Federal Court of Appeal, that responds to concerns about morality and criminality by excluding terrorists, criminals and the like.\n\nI shall consider each of these suggested definitions in turn.\n\n\"Particular Social Group\" as Safety Net\n\nThe broad definition of \"particular social group\", comprising basically any alliance of individuals with a common objective, is most forcefully advocated by Arthur C. Helton, Director of the Political Asylum Project of the Lawyers Committee for International Human Rights. In his article, \"Persecution on Account of Membership in a Social Group As a Basis for Refugee Status\" (1983), 15 Colum. Hum. Rts. L. Rev. 39, at p. 45, Helton sets out his view of the scope of this category in these terms:\n\nThe intent of the framers of the Refugee Convention was not to redress prior persecution of social groups, but rather to save individuals from future injustice. The \"social group\" category was meant to be a catch-all which could include all the bases for and types of persecution which an imaginative despot might conjure up.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-57", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 57", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Isi Foighel refers to this category as a \"safety net\". \"[T]his category\", he states, \"was to include also race and ethnicity and, furthermore, was to operate as a kind of comprehensive provision for the categories of persons who had a legitimate claim upon being considered refugees in the international sense, although they were not clearly included in the categories specifically mentioned\". See Isi Foighel, \"The Legal Status of the Boat-People\", 48 Nordisk Tidsskrift for International Relations 217, at pp. 222-23. This interpretation essentially characterizes an association of people as a \"particular social group\" merely by virtue of their common victimization as the objects of persecution.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-58", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 58", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "This wide approach has been promoted by several other writers in the field. Guy Goodwin-Gill, in The Refugee in International Law, supra, at p. 30, describes as essential to the definition \"the factor of shared interests, values, or background ‑‑ a combination of matters of choice with other matters over which members of the group have no control\". Goodwin-Gill goes so far so as to enumerate as relevant uniting characteristics, in addition to ethnic, cultural and linguistic origin, education and family background, the factors of economic activity, shared values, outlook and aspirations. Daniel Compton, in \"Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar ‑‑ Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986)\" (1987), 62 Wash. L. Rev. 913, at p. 923, delimits the broad range of \"particular social group\" as \"a recognized grouping within a society, a group that shares some common experience\". Occasionally, it is true, these writers appear to qualify their approach somewhat by referring to \"legitimate\" groups or \"invidious\" persecution. But their essential theme remains that as long as some common thread binds the set of individuals together, whether on the basis of background, habits or status, the requirement that the feared persecution be based on membership in a particular social group is met.\n\nThe proponents of this expansive view rely on the genesis of the category of \"particular social group\". It was suggested as a last-minute expansion of the Convention's definition of \"refugee\" by the Swedish delegate (A/CONF.2/SR.3, at p. 14):\n\nMr. PETREN (Sweden) . . .", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-59", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 59", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the first place, experience had shown that certain refugees had been persecuted because they belonged to particular social groups. The draft Convention made no provision for such cases, and one designed to cover them should accordingly be included.\n\nThe proponents of the liberal approach justify their position by seizing upon this limited discussion of the addition's background. Grahl-Madsen, supra, at p. 219, justifies his wide definition, for example, on the basis of the intent of the framers. He asserts:\n\nThe reason `membership of a particular social group' was added by the Conference of Plenipotentiaries as [sic] an afterthought. Many cases falling under this term are also covered by the terms discussed above, but the notion of `social group' is of broader application than the combined notions of racial, ethnic, and religious groups, and in order to stop a possible gap, the Conference felt that it would be as well to mention this reason for persecution explicitly.\n\nOthers make the same point; see Maureen Graves, \"From Definition to Exploration: Social Groups and Political Asylum Eligibility\" (1989), 26 San Diego L. Rev. 739, at pp. 747-49; Compton, supra, at pp. 925-26.\n\nIn my view, the supporters of the wide definition exaggerate the implications of the intention of the framers. The fact that this class was added to enlarge the range of cases falling within the definition of \"refugee\" therein was initially a Cold War reaction aimed at ensuring a haven for capitalists fleeing the persecution they encountered in Eastern Bloc regimes after the World War II. Daniel Compton, supra, made this historical observation at pp. 925-26:", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-60", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 60", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The most well-known examples of social group-based persecution at [the time of drafting the Convention] occurred in Eastern Europe following the rise of the Communist regimes. Subsequent cases from European courts of nations party to the Convention have recognized, for example, the \"capitalist class\" and \"independent businessmen\" and their families as valid social groups in granting refugee status to persons fleeing Eastern Europe. Examples such as these are probably what the Swedes had in mind.\n\nSee also R. Plender, \"Admission of Refugees: Draft Convention on Territorial Asylum\" (1977-78), 15 San Diego L. Rev. 45, at p. 52; and Grahl-Madsen, supra, at pp. 219-20, who reviews the foreign jurisprudence on these Cold War cases. The persecution in the \"Cold War cases\" was imposed upon the capitalists not because of their contemporaneous activities but because of their past status as ascribed to them by the Communist leaders. Given this historical origin, the definition of \"particular social group\" must, at the very least, embrace these types of situations. The scope of \"particular social group\", however, was not meant to be limited to that specific historical circumstance and no one has ever so contended. The ambit of this portion of the definition of \"Convention refugee\" must be evaluated on the basis of the basic principles underlying the treaty.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-61", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 61", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "As explained earlier, international refugee law was meant to serve as a \"substitute\" for national protection where the latter was not provided. For this reason, the international role was qualified by built-in limitations. These restricting mechanisms reflect the fact that the international community did not intend to offer a haven for all suffering individuals. The need for \"persecution\" in order to warrant international protection, for example, results in the exclusion of such pleas as those of economic migrants, i.e., individuals in search of better living conditions, and those of victims of natural disasters, even when the home state is unable to provide assistance, although both of these cases might seem deserving of international sanctuary.\n\nSimilarly, the drafters of the Convention limited the included bases for a well-founded fear of persecution to \"race, religion, nationality, membership in a particular social group or political opinion\". Although the delegates inserted the social group category in order to cover any possible lacuna left by the other four groups, this does not necessarily lead to the conclusion that any association bound by some common thread is included. If this were the case, the enumeration of these bases would have been superfluous; the definition of \"refugee\" could have been limited to individuals who have a well-founded fear of persecution without more. The drafters' decision to list these bases was intended to function as another built-in limitation to the obligations of signatory states. The issue that arises, therefore, is the demarcation of this limit.\n\nThe UNHCR Handbook does not appear to address this issue specifically. Paragraphs 77-79 deal with the meaning of \"membership of a particular social group\":", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-62", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 62", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "77. A \"particular social group\" normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality.\n\n78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group's loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government's policies.\n\n79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution.\n\nThe language is sufficiently general that it may, on one view of the matter, be interpreted as accepting the expansive approach just discussed. But that is far from certain. The handbook may, I think, with equal consistency, be read more narrowly. That, having regard to the context and purpose of the treaty, appears to me to be the better approach.\n\n\"Particular Social Group\" Limited by Anti-Discrimination Notions\n\nUnderlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows:\n\nCONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-63", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 63", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates. It sets out, in a general fashion, the intention of the drafters and thereby provides an inherent limit to the cases embraced by the Convention. Hathaway, supra, at p. 108, thus explains the impact of this general tone of the treaty on refugee law:\n\nThe dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard.\n\nThis theme sets the boundaries for many of the elements of the definition of \"Convention refugee\". \"Persecution\", for example, undefined in the Convention, has been ascribed the meaning of \"sustained or systemic violation of basic human rights demonstrative of a failure of state protection\"; see Hathaway, supra, at pp. 104-105. So too Goodwin-Gill, supra, at p. 38, observes that \"comprehensive analysis requires the general notion [of persecution] to be related to developments within the broad field of human rights\". This has recently been recognized by the Federal Court of Appeal in the Cheung case.\n\nIn similar fashion, the enumeration of specific foundations upon which the fear of persecution may be based to qualify for international protection parallels the approach adopted in international anti-discrimination law. Thus Goodwin-Gill, supra, at p. 39, notes:", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-64", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 64", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The references to `race, religion, nationality, membership of [sic] a particular social group, or political opinion' illustrate briefly the characteristics of individuals and groups which are considered worthy of special protection. These same factors have figured in the development of the fundamental principle of non-discrimination in general international law, and have contributed to the formulation of other fundamental human rights.\n\nIn distilling the contents of the head of \"particular social group\", therefore, it is appropriate to find inspiration in discrimination concepts. Hathaway, supra, at pp. 135-36, explains that the anti-discrimination influence in refugee law is justified on the basis of those sought to be protected thereby:\n\nThe early refugee accords did not articulate this notion of disfranchisement or breakdown of basic membership rights, since refugees were defined simply by specific national, political, and religious categories, including anti-Communist Russians, Turkish Armenians, Jews from Germany, and others. The de facto uniting criterion, however, was the shared marginalization of the groups in their states of origin, with consequent inability to vindicate their basic human rights at home. These early refugees were not merely suffering persons, but were moreover persons whose position was fundamentally at odds with the power structure in their home state. It was the lack of a meaningful stake in the governance of their own society which distinguished them from others, and which gave legitimacy to their desire to seek protection abroad.\n\nThe manner in which groups are distinguished for the purposes of discrimination law can thus appropriately be imported into this area of refugee law.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-65", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 65", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "This theme of international concern for discrimination and human rights seems to underlie the recent trend in the jurisprudence of the Federal Court of Appeal. In Mayers v. Canada (Minister of Employment and Immigration), supra, the court reviewed the decision of a credible basis panel. Pursuant to this decision, it was found that there was some evidence upon which the Refugee Division might determine the applicant to be a Convention refugee in her claim to fear persecution on the basis of membership in the particular social group of \"Trinidadian women subject to wife abuse\". Although not strictly necessary to this review, Mahoney J.A. addressed the question of whether this group could meet the definition of Convention refugee. In doing so, he articulated the following test, at p. 737, proposed by counsel for the applicant:\n\n. . . a particular social group means: (1) a natural or non-natural group of persons with (2) similar shared background, habits, social status, political outlook, education, values, aspirations, history, economic activity or interests, often interests contrary to those of the prevailing government, and (3) sharing basic, innate, unalterable characteristics, consciousness and solidarity, or (4) sharing a temporary but voluntary status, with the purpose of their association being so fundamental to their human dignity that they should not be required to alter it.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-66", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 66", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Cheung v. Minister of Employment and Immigration, supra, the court was more directly confronted with the question of the test for \"particular social group\", in deciding whether women in China who have more than one child and are faced with forced sterilization constitute such a group. In order to make this evaluation, Linden J.A. adopted the test proposed in Mayers v. Canada (Minister of Employment and Immigration), supra. In applying the test to the facts before him, Linden J.A. held:\n\nIt is clear that women in China who have one child and are faced with forced sterilization satisfy enough of the above criteria to be considered a particular social group. These people comprise a group sharing similar social status and hold a similar interest which is not held by their government. They have certain basic characteristics in common. All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a woman's reproductive liberty is a basic right \"ranking high in our scale of values\" (E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388).\n\nIn this way, the focus of the inquiry was on the basic right of reproductive control.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-67", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 67", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "This approach to delineating the scope of \"particular social group\" is developed further in American quasi-judicial authority. In Matter of Acosta, Interim Decision 2986, 1985 WL 56042 (B.I.A.) (Database FIM-81A), the United States Board of Immigration Appeals was confronted with the claim for asylum of an El Salvador citizen. The claimant based his fear of persecution on his membership in a cooperative organization of taxi drivers. According to the claimant, members of the cooperative had been targeted by anti-government guerrillas for having refused to comply with the latter's requests to engage in work stoppages. In finding that the cooperative did not constitute a \"particular social group\", the Board defined this term in a manner that reflects classic discrimination analysis. It stated, at pp. 37-39:", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-68", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 68", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "We find the well-established doctrine of ejusdem generis, meaning literally, `of the same kind,' to be most helpful in construing the phrase `membership in a particular social group.' That doctrine holds that general words used in an enumeration with specific words should be construed in a manner consistent with the specific words. See, e.g., Cleveland v. United States, 329 U.S. 14 (1946); 2A C. Sands, supra, s 47.17. The other grounds of persecution in the Act and the Protocol listed in association with `membership in a particular social group' are persecution on account of `race,' `religion,' `nationality,' and `political opinion.' Each of these grounds describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed. See A. Grahl-Madsen, supra, at 217; G. Goodwin-Gill, supra, at 31. Thus, the other four grounds of persecution enumerated in the Act and the Protocol restrict refugee status to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-69", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 69", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Applying the doctrine of ejusdem generis, we interpret the phrase `persecution on account of membership in a particular social group' to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. Only when this is the case does the mere fact of group membership become something comparable to the other four grounds of persecution under the Act, namely, something that either is beyond the power of an individual to change or that is so fundamental to his identity or conscience that it ought not be required to be changed. By construing `persecution on account of membership in a particular social group' in this manner, we preserve the concept that refuge is restricted to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution.\n\nWhat is excluded by this definition are \"groups defined by a characteristic which is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights\"; see Hathaway, supra, at p. 161.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-70", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 70", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Anti-discrimination law in Canada as embodied by s. 15 of the Charter and the jurisprudence decided thereunder, although still not completely developed, makes reference to very similar criteria. In the seminal equality case of Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, non-citizenship was held to be an analogous ground of discrimination because it shared the same overarching characteristics of those enumerated in s. 15 of the Charter . In that case, I articulated these common characteristics as follows, at p. 195:\n\nThe characteristic of citizenship is one typically not within the control of the individual and, in this sense, is immutable. Citizenship is, at least temporarily, a characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs.\n\nThe \"analogous grounds\" approach to s. 15 of the Charter parallels that of the Federal Court of Appeal in its recent judgments, as well as the United States Immigration Board of Appeals, with respect to the definition of \"particular social group\" in the distillation of and extrapolation from the common thread running through the enumerated heads.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-71", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 71", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "These types of tests appear to be appropriate to us. Canada's obligation to offer a haven to those fleeing their homelands is not unlimited. Foreign governments should be accorded leeway in their definition of what constitutes anti-social behaviour of their nationals. Canada should not overstep its role in the international sphere by having its responsibility engaged whenever any group is targeted. Surely there are some groups, the affiliation in which is not so important to the individual that it would be more appropriate to have the person dissociate him- or herself from it before Canada's responsibility should be engaged. Perhaps the most simplified way to draw the distinction is by opposing what one is against what one does, at a particular time. For example, one could consider the facts in Matter of Acosta, in which the claimant was targeted because he was a member of a taxi driver cooperative. Assuming no issues of political opinion or the right to earn some basic living are involved, the claimant was targeted for what he was doing and not for what he was in an immutable or fundamental way.\n\nThe meaning assigned to \"particular social group\" in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, supra, Cheung, supra, and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possible categories:\n\n(1) groups defined by an innate or unchangeable characteristic;\n\n(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-72", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 72", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "(3) groups associated by a former voluntary status, unalterable due to its historical permanence.\n\nThe first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person.\n\n\"Particular Social Group\": Exclusion of Criminals and Terrorists\n\nThe majority of the Federal Court of Appeal held that international refugee protection should not embrace terrorists, such as members of the INLA. Urie J.A. put it this way, at pp. 674-75:\n\nCounsel pointed out that paragraph 3(g) of the Act recognizes Canada's need to fulfil its \"international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted\". To be consistent in the fulfilment of its humanitarian goal, groups who by acts of terrorism seek to promote their aims, in this case the overthrow of the duly constituted authority, should be excluded from those social groups who meet the definition of Convention refugee. To do otherwise, counsel said, would allow Canada to be a haven for persons who admit to sympathizing with or having committed or participated in terrorists acts in other countries, with or without disavowing their support of terrorists.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-73", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 73", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The mechanism adopted by Urie J.A. to ensure the exclusion of these undesirable claimants, in this way, is a limitation of the scope of the definition of \"particular social group\". An examination of the Act as a whole, however, reveals that the concerns he articulated are anticipated and provided for elsewhere in the Act. In my view, therefore, such a restriction on the scope of \"particular social group\" is unnecessary and renders redundant the explicit exclusionary provisions.\n\nThe Act lists classes of claimants considered to be inadmissible in s. 19. Several of these relate to concerns about criminality, violence and government subversion. Subsection (1) in relevant part reads:\n\n19. (1) No person shall be granted admission if he is a member of any of the following classes:\n\n. . .\n\n(c) persons who have been convicted of an offence that, if committed in Canada, constitutes or, if committed outside Canada, would constitute an offence that may be punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed, except persons who have satisfied the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since the termination of the sentence imposed for the offence;\n\n(d) persons who there are reasonable grounds to believe will\n\n(i) commit one or more offences punishable by way of indictment under any Act of Parliament, or\n\n(ii) engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment;", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-74", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 74", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "(e) persons who have engaged in or who there are reasonable grounds to believe will engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, except persons who, having engaged in such acts, have satisfied the Minister that their admission would not be detrimental to the national interest;\n\n(f) persons who there are reasonable grounds to believe will, while in Canada, engage in or instigate the subversion by force of any government;\n\n(g) persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence . . . .\n\nSection 19(2) goes on to preclude the granting of admission to persons who have been convicted of offences that would have constituted indictable or summary conviction offences, had they been committed in Canada, unless these persons demonstrate that they have become rehabilitated and certain delineated time periods have elapsed.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-75", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 75", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "A claimant for refugee status in Canada who has established his or her inclusion in the definition of \"Convention refugee\" must still overcome the hurdle of s. 19 before entry into this country will be permitted. These exclusions on the basis of criminality have been carefully drafted to avoid the admission of claimants who may pose a threat to the Canadian government or to the lives or property of the residents of Canada. The provisions specifically give the Minister of Employment and Immigration enough flexibility, however, to reassess the desirability of permitting entry to a claimant with a past criminal record, where the Minister is convinced that rehabilitation has occurred. In this way, Parliament opted not to treat a criminal past as a reason to be estopped from obtaining refugee status. If the scope of the term \"particular social group\" were interpreted so as to exclude criminals and terrorists, as the majority of the Court of Appeal did, this legislative decision would be ignored. I think it more appropriate to avoid such a blanket exclusion in the face of an explicit, comprehensive structure for the assessment of these potentially inadmissible claimants.\n\nIn the amended Immigration Act, R.S.C., 1985, c. I-2, Parliament has further responded to the concern of keeping out dangerous and criminal claimants by excluding from the definition of \"Convention refugee\" in s. 2 of the Act any person to whom the Convention does not apply pursuant to s. E or F of Art. 1 thereof, which sections are set out in the schedule to the Act (R.S.C., 1985, c. 28 (4th Supp.), s. 34). The provision of Art. 1 of the Convention relevant for the purposes of this analysis is s. F, which reads:", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-76", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 76", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:\n\n(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;\n\n(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;\n\n(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-77", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 77", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The articulation of this exclusion for the \"commission\" of a crime can be contrasted with those of s. 19 of the Act which refers to \"convictions\" for crimes. Hathaway, supra, at p. 221, interprets this exclusion to embrace \"persons who are liable to sanctions in another state for having committed a genuine, serious crime, and who seek to escape legitimate criminal liability by claiming refugee status\". In other words, Hathaway would appear to confine paragraph (b) to accused persons who are fugitives from prosecution. The interpretation of this amendment was not argued before us. I note, however, that Professor Hathaway's interpretation seems to be consistent with the views expressed in the Travaux préparatoires, regarding the need for congruence between the Convention and extradition law; see statement of United States delegate Henkin, U.N. Doc. E/AC.32/SR.5 (January 30, 1950), at p. 5. As such, Ward would still not be excluded on this basis, having already been convicted of his crimes and having already served his sentence. This addition to the Act does answer, however, in a more general fashion, the concerns raised by the majority of the Court of Appeal and renders less forceful the argument that morality and criminality concerns need be accommodated by narrowing the definition of \"particular social group\".\n\nIs Ward a Member of a Particular Social Group?\n\nApplying the three-pronged interpretation of \"particular social group\" adopted earlier to the case at bar, Ward does not meet the definition of \"Convention refugee\" and thus cannot be admitted into Canada on the basis of his fear of persecution at the hands of the INLA upon his return to Northern Ireland.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-78", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 78", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, we must define the association at issue. In the Court of Appeal, Ward's affiliation was designated as \"member of the INLA\" (by Urie J.A., at p. 677) and as \"members and former members of the INLA\" (by MacGuigan J.A., at p. 691). Ward's claim is that he fears persecution, should he return to Northern Ireland, because the INLA would retaliate to avenge his release of the hostages. This act was effected by Ward qua member of the INLA. Ward also testified that he feared persecution by the INLA because of its concern that he \"turn supergrass\". This fear is present whether or not Ward renounced his membership in the INLA, as the possibility of revealing organization secrets is present in the case of both present and former members. Thus, no subsequent disassociation from this group by Ward had any impact on his fear. I do not think it appropriate, therefore, to say that Ward's fear was based on his status as a former member of the INLA. The fact that Ward might no longer be a member is merely a result of the persecution feared, not its foundation.\n\nThe group of INLA members is not a \"particular social group\". To review, the test given above includes:\n\n(1) groups defined by an innate or unchangeable characteristic;\n\n(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and\n\n(3) groups associated by a former voluntary status, unalterable due to its historical permanence.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-79", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 79", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Clearly, the INLA members are not characterized by an innate or unalterable characteristic. The third branch of the definition is not applicable to Ward, since the group is associated in the present and membership is not unchangeable owing to its status as a historical fact. (It seems that this branch of the definition will only come into play when the identity of the persecutor does not coincide with that of the social group as it does in this case. For this prong to be relevant, the social group should no longer be actively affiliated; if the group has disbanded, it cannot possibly persecute.) As for the second branch, the INLA is a voluntary association committed to the attainment of specific political goals by any means, including violence, but I do not believe that this objective can be said to be so fundamental to the human dignity of its members such that it constitutes a \"particular social group\". The fight for independence from the United Kingdom and unification with the Irish Republic may be very serious political ends for INLA members, but requiring them to abandon their violent means of expressing and achieving these goals does not amount to an abdication of their human dignity.\n\nMoreover, I do not accept that Ward's fear was based on his membership. Rather, in my view, Ward was the target of a highly individualized form of persecution and does not fear persecution because of his group characteristics. Ward feels threatened because of what he did as an individual, and not specifically because of his association. His membership in the INLA placed him in the circumstances that led to his fear, but the fear itself was based on his action, not on his affiliation.\n\nC. Political Opinion", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-80", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 80", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Political opinion was not raised as a ground for fear of persecution either before the Board or the Court of Appeal. It was raised for the first time in this Court by the intervener, the United Nations High Commissioner for Refugees, who, in his factum, expressed the view that the Court of Appeal had \"erred in considering that the claimant's fear of persecution was based on membership in an organization\". The additional ground was ultimately accepted by the appellant during oral argument. I note that the UNHCR Handbook, at p. 17, paragraph 66, states that it is not the duty of a claimant to identify the reasons for the persecution. It is for the examiner to decide whether the Convention definition is met; usually there will be more than one ground (idem, paragraph 67). While political opinion was raised at a very late stage of the proceedings, the Court has decided to deal with it because this case is one involving human rights and the issue is critical to the case.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-81", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 81", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Political opinion as a basis for a well-founded fear of persecution has been defined quite simply as persecution of persons on the ground \"that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party\"; see Grahl-Madsen, supra, at p. 220. The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors. Grahl-Madsen's definition assumes that the persecutor from whom the claimant is fleeing is always the government or ruling party, or at least some party having parallel interests to those of the government. As noted earlier, however, international refugee protection extends to situations where the state is not an accomplice to the persecution, but is unable to protect the claimant. In such cases, it is possible that a claimant may be seen as a threat by a group unrelated, and perhaps even opposed, to the government because of his or her political viewpoint, perceived or real. The more general interpretation of political opinion suggested by Goodwin-Gill, supra, at p. 31, i.e., \"any opinion on any matter in which the machinery of state, government, and policy may be engaged\", reflects more care in embracing situations of this kind.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-82", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 82", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Two refinements must be added to the definition of this category. First, the political opinion at issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant.\n\nSecond, the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. The political opinion that lies at the root of the persecution, therefore, need not necessarily be correctly attributed to the claimant. Similar considerations would seem to apply to other bases of persecution.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-83", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 83", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Ward's fear of being killed by the INLA, should he return to Northern Ireland, stems initially from the group's threat of executing the death sentence imposed by its court-martial. The act for which Ward was so punished was his assistance in the escape of the hostages he was guarding. From this act, a political opinion related to the proper limits to means used for the achievement of political change can be imputed. Ward had many reasons to go through with the assassination order and only one, that of acting in conformity with his beliefs, for doing what he eventually did. Ward recognized the risk of serious retribution by the INLA upon being caught, as reflected in his testimony before the Immigration Appeal Board:\n\nQ. What type of discipline is it?\n\nA. The discipline is once you are a member you are always a member. And if anybody steps outside those lines of demarcation the only alternative is to assassinate them, do away with them.\n\nQ. So if a person does not tow [sic] the line, once he is a member and he does not tow [sic] the line what happens to him?\n\nA. He will be shot. . . .\n\nNevertheless, Ward felt that to carry out the INLA's hostage assassination order would have been going too far. He described his reasons for turning the hostages free as follows:\n\nQ. So the order [to shoot the hostages] has come down then, and what happened next?\n\nA. Well I found myself in a predicament.\n\nQ. Yes?\n\nA. Both of conscience and morals, these things all go through your head in a situation like that. Quite frankly, I wanted no part of it at that stage.\n\nQ. Did you express this desire or this feeling to anyone?\n\nA. To one particular person that was involved there. I cannot do this. But rules are rules, if you voice your opinion to the wrong people or too loudly you would be joining the victims.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-84", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 84", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Q. So what happened next?\n\nA. What happened was, I gave the situation a lot of thought and consideration. I thought of the implications of various actions. Things went through my head and the final conclusion I came to was I could not have any part of it.\n\n. . .\n\nQ. The order came down from the Army council. And you knew that it was your responsibility to protect these people so that that order, I guess, could be carried out. Correct?\n\nA. Yes.\n\nQ. And you had a problem with that. You realized that you could not go along with the killing?\n\nA. They were innocent people . . . . I could not live with my own conscience if I permitted this to go on. The decision I came to in my own mind was to try to release him.\n\nTo Ward, who believes that the killing of innocent people to achieve political change is unacceptable, setting the hostages free was the only option that accorded with his conscience. The fact that he did or did not renounce his sympathies for the more general goals of the INLA does not affect this. This act, on the other hand, made Ward a political traitor in the eyes of a militant para-military organization, such as the INLA, which supports the use of terrorist tactics to achieve its ends. The act was not merely an isolated incident devoid of greater implications. Whether viewed from Ward's or the INLA's perspective, the act is politically significant. The persecution Ward fears stems from his political opinion as manifested by this act.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-85", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 85", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appropriateness of the application of this ground to the facts in this case is confirmed when contrasted with a recent United States Supreme Court disposition of a similar issue. In I.N.S. v. Elias-Zacarias, 112 S.Ct. 812 (1992), a Guatemalan claimant sought asylum because of his fear of persecution at the hands of the anti-government guerrillas owing to his refusal to join them. For the majority, Scalia J. was not convinced that the claimant's motive, nor that perceived by the guerrillas to be his motive, was politically based. He stated, at pp. 815-16:\n\nEven a person who supports a guerrilla movement might resist recruitment for a variety of reasons ‑‑ fear of combat, a desire to remain with one's family and friends, a desire to earn a better living in civilian life, to mention only a few. The record in the present case not only failed to show a political motive on Elias-Zacarias' part; it showed the opposite. He testified that he refused to join the guerrillas because he was afraid that the government would retaliate against him and his family if he did so. Nor is there any indication (assuming, arguendo, it would suffice) that the guerrillas erroneously believed that Elias-Zacarias' refusal was politically based. [Emphasis in original.]\n\nIn Ward's case, a contrario, his act was inconsistent with any other possible motive. He was already a member of the INLA; any fear of retaliation could have been dispelled simply by executing the order. The rationale underlying his decision was unequivocal, both in his eyes and in those of the INLA.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-86", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 86", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "A positive labelling of Ward as a \"Convention refugee\" because of his well-founded fear of persecution for reasons of political opinion meets the concerns of Urie J.A., in the Court of Appeal, who remarked, at p. 678, that it would be absurd to allow Ward into Canada owing to the fact that he had acted contrary to the interests of the INLA, because \"[i]f such a view were to be taken anyone who dissents on anything could be said to be a member of a particular social group\". Permitting Ward entry on the basis of feared persecution because of political opinion provides the focus needed in this inquiry. Not just any dissent to any organization will unlock the gates to Canadian asylum; the disagreement has to be rooted in a political conviction. This approach to Ward's case would preclude a former Mafia member, for example, from invoking it as precedent.\n\nSection 15 of the Charter", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-87", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 87", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The intervener, Canadian Council for Refugees, has raised the argument that the majority decision of the Federal Court of Appeal imposes two requirements having a discriminatory impact on historically disadvantaged groups such as women and children, by making it more difficult for them to obtain refugee status in Canada. These two requirements are, first, that social group activities be viewed as a possible danger to the state in order to qualify as a social group, and second, that state complicity be present. Essentially, the argument can be reduced to the contention that differential impact will exist since persecution of women and children is less likely to meet these criteria. I do not find this argument convincing, but I need not enter into it further since I have found both these aspects of the majority decision incorrect for other reasons. Recourse to s. 15 of the Charter is, therefore, unnecessary.\n\nDual Nationality", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-88", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 88", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "Ward's citizenship, by virtue of his being a resident of Northern Ireland which forms part of the United Kingdom, effectively endows him with British citizenship; see the British Nationality Act 1981, 1981 (U.K.), c. 61. On January 1, 1983, British citizenship was automatically acquired by all those citizens of the United Kingdom and the Colonies who had the right of abode in the United Kingdom on that date pursuant to the British Nationality Act 1981. During the oral hearing, Ward's counsel effectively admitted the Board's error in this regard and conceded Ward's dual nationality. This makes unnecessary a consideration of burden of proof, but it is right to say that I agree with the Court of Appeal that the Board erred in placing the burden of proof on the Minister. This burden includes a showing of well-founded fear of persecution in all countries of which the claimant is a national.\n\nIn considering the claim of a refugee who enjoys nationality in more than one country, the Board must investigate whether the claimant is unable or unwilling to avail him- or herself of the protection of each and every country of nationality. Although never incorporated into the Immigration Act and thus not strictly binding, paragraph 2 of Art. 1(A)(2) of the 1951 Convention infuses suitable content into the meaning of \"Convention refugee\" on the point. This paragraph of the Convention provides:\n\nArticle 1\n\n. . .\n\nA. . . .\n\n(2) . . .", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-89", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 89", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the case of a person who has more than one nationality, the term \"the country of his nationality\" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on a well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.\n\nAs described above, the rationale underlying international refugee protection is to serve as \"surrogate\" shelter coming into play only upon failure of national support. When available, home state protection is a claimant's sole option. The fact that this Convention provision was not specifically copied into the Act does not render it irrelevant. The assessment of Convention refugee status most consistent with this theme requires consideration of the availability of protection in all countries of citizenship.\n\nThis conclusion is bolstered by general rules of statutory interpretation. Section 33(2) of the Interpretation Act , R.S.C., 1985, c. I-21 , stipulates that words in the singular include the plural. Consequently, references to \"country of nationality\" in the definition of \"Convention refugee\" in s. 2(1) of the Immigration Act should be read as including \"countries of nationality\".", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-90", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 90", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant argues that the presence of s. 46.04(1)(c) of the Act (resulting from the amendments effected by S.C. 1988, c. 35, s. 14, effective January 1, 1989) is inconsistent with a requirement of demonstrating a lack of protection in all countries of citizenship. Section 46.04(1)(c) precludes eligibility for landed status in Canada for a claimant who has demonstrated his or her status as a Convention refugee, where the claimant is \"a national or citizen of a country, other than the country that the person left, or outside of which the person remains, by reason of fear of persecution\". The appellant's contention is, essentially, that if the Act's definition of \"Convention refugee\" were to encompass inability or unwillingness to avail himself of the protection of each country of nationality, then s. 46.04(1)(c) would be redundant.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-91", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 91", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "I am not persuaded by this argument. The right to apply for the status of permanent resident is but one of several consequences flowing from the characterization of a claimant as a Convention refugee. The Convention refugee also benefits from the right to remain in Canada (s. 4(2.1)), the right not to be deported to the country where the refugee has a well-founded fear of persecution (s. 53(1)) and the right to work while in Canada (s. 19(4)(j) of the Immigration Regulations, 1978, SOR/78-172). None of these provisions requires assurance that the claimant has exhausted his or her search for protection in every country of nationality. The exercise of assessing the claimant's fear in each country of citizenship at the stage of determination of \"Convention refugee\" status, before conferring these rights on the claimant, accords with the principles underlying international refugee protection. Otherwise, the claimant would benefit from rights granted by a foreign state while home state protection had still been available. The reference to other countries of nationality in s. 46.04(1)(c) is probably intended as a double-check on the refugee's lack of access to national protection, in case of changed circumstances or new revelations, before the significant status of permanent resident is bestowed.\n\nAs alluded to previously, and as conceded by appellant's counsel to be in error, the Board concluded that it could not make a finding of dual citizenship because there was insufficient evidence to do so. The Board commented, at p. 55, however, that had it\n\n. . . concluded that the claimant was also a national of the United Kingdom, the Board would have made a finding that the claimant's life would be in danger from the INLA if he was returned to the United Kingdom.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-92", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 92", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "This finding, however, is insufficient for the purposes of the determination that must be made by the Board. It does not address the real issue. The fact that Ward's life will be in danger should he be returned either to Ireland or to Great Britain is not disputed by anyone; the question, rather, is whether Ward can be protected from that danger. The Board never made a finding of fact on the real issue ‑‑ the ability of the British to protect Ward.\n\nAs explained above, the well-foundedness of a claimant's fear of persecution can be grounded in the concept of \"inability to protect\", assessed with respect to each and every country of nationality. Since the Board failed to make a finding on this point, as far as Great Britain is concerned, its ultimate finding of fear of persecution there is similarly erroneous. The validity of Ward's claim is dependant upon such a finding. This case must, therefore, be referred back to the Board (now the Immigration and Refugee Board) for a determination as to whether Ward can be afforded protection in Great Britain.\n\nClearly, the inability of a second state of nationality to protect can be established where the claimant has actually approached the state and been denied protection. Where, as in the case of Ward, the second state has not actually been approached by the claimant, the principles delineated above regarding the home state should apply. In other words, Great Britain should be presumed capable of protecting its nationals.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-1023-93", - "doc_type": "caselaw", - "act_code": "[1993] 2 SCR 689", - "act_short": "Ward", - "act_name": "Canada (Attorney General) v. Ward", - "section": "", - "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", - "marginal_note": "excerpt 93", - "heading": "The refugee definition; a particular social group; the availability of state protection", - "part": "Supreme Court of Canada", - "division": "", - "text": "An underlying premise of this presumption, however, is that citizenship carries with it certain basic consequences. One of these, as noted by MacGuigan J.A., at p. 699, is the right to gain entry to the country at any time. The appellant presented evidence, albeit not by way of expert opinion, of the existence of the Prevention of Terrorism (Temporary Provisions) Act 1984. The current version of this Act (Prevention of Terrorism (Temporary Provisions) Act 1989, 1989 (U.K.), c. 4), which replaced the Prevention of Terrorism (Temporary Provisions) Act 1984, seems to enable the British Government to prohibit a national from being in, or entering, Great Britain, if the national has been \"concerned in the commission, preparation or instigation of acts of terrorism\" connected with the affairs of Northern Ireland; see ss. 4 and 5 of the Act. Such evidence might serve to rebut the presumption by demonstrating a lack of protection afforded by Great Britain. Denial of admittance to the home territory is offered by the UNHCR in its Handbook, at paragraph 99, as a possible example of what might amount to a refusal of protection. The applicability of the presumption and its rebuttal are matters that depend upon the particular circumstances of this case and which must be determined by the Board.\n\nConclusion\n\nFor these reasons, I would allow the appeal, set aside the order of the Federal Court of Appeal and remit the case back to the Immigration and Refugee Board for an evaluation consistent with these reasons of the appellant's claim with reference to his second state of citizenship, Great Britain.\n\nAppeal allowed.", - "current_to": "1993-06-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" - }, - { - "id": "scc-855-1", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 1", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711\n\nThe Minister of Employment and ImmigrationAppellant and Cross‑Respondent\n\nv.\n\nJoseph (Giuseppe) ChiarelliRespondent and Cross‑Appellant\n\nand\n\nThe Security Intelligence Review Committee Intervener\n\nIndexed as: Canada (Minister of Employment and Immigration) v. Chiarelli\n\nFile No.: 21920.\n\n1991: October 28; 1992: March 26.\n\nPresent: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.\n\non appeal from the federal court of appeal\n\nImmigration ‑‑ Deportation ‑‑ Permanent resident convicted of serious offence and ordered deported ‑‑ Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime ‑‑ Summary provided of Committee's in camera proceedings ‑‑ Whether infringement of s. 7 right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice ‑‑ Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 4(2), 19(1)(d)(ii), 27(1)(d)(i), (ii), (3), (4), 32(2), 72(1)(a), (b), 82.1(1), (2)(a), (c), (3), (4), (5), (6)(a), (b), 83(1)(a), (2).", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-2", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 2", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Constitutional law ‑‑ Charter of Rights ‑‑ Right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice ‑‑ Deportation of permanent resident convicted of serious crime ‑‑ Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime ‑‑ Summary provided of Committee's in camera proceedings ‑‑ Whether infringement of s. 7 right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 .\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Cruel and unusual punishment or treatment ‑‑ Deportation of permanent resident convicted of serious crime ‑‑ Whether infringement of s. 12 right to freedom from cruel and unusual punishment or treatment ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 12 .\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Deportation of permanent resident convicted of serious crime ‑‑ Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime ‑‑ Whether infringement of s. 15 right to equal benefit before and under the law ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 15 .\n\nAdministrative law ‑‑ Natural justice ‑‑ Fair hearing ‑‑ Security Intelligence Review Committee considering whether permanent resident involved with organized crime ‑‑ Part of Committee hearing in camera ‑‑ Background material and summary of proceedings provided ‑‑ Finding of involvement with organized crime barring appeal to Immigration Appeal Board on compassionate grounds.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-3", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 3", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "This appeal called into question the constitutionality of the statutory scheme providing for the deportation of a permanent resident on conviction of a serious criminal offence. The main appeal concerned the removal of a ground of appeal from a deportation order and the procedure by which that removal is effected. The cross‑appeal attacked the general statutory scheme.\n\nRespondent was identified in an immigration report made by an immigration officer in January 1986 pursuant to s. 27 of the Immigration Act, 1976, as a permanent resident convicted of an offence for which a term of imprisonment of five years or more may be imposed and therefore a person described in s. 27(1)(d)(ii). An adjudicator, after an inquiry attended by appellant and his counsel, found respondent to be a person described in that section and ordered him deported. The hearing of respondent's appeal to the Immigration Appeal Board against the deportation order, brought pursuant to s. 72(1), was adjourned after the Solicitor General and the Minister of Employment and Immigration made a joint report to the Security Intelligence Review Committee pursuant to s. 82.1(2) indicating respondent to be a person reasonably likely to engage in organized crime.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-4", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 4", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Review Committee conducted the required investigation and held a hearing. Prior to the hearing respondent was provided with a document giving background information as to the hearing and summaries of information. A summary of the evidence taken in in camera proceedings of this hearing and provided to respondent indicated that evidence was led that respondent, together with certain named individuals, was a member of a criminal organization which engaged in extortion and drug related activities and that respondent personally took part in the extortion and drug related activities of the organization. The information made available to respondent and the criminal records of respondent and his associates were before the Committee when he appeared and was asked to respond. Counsel for respondent objected to the fairness and constitutionality of the proceeding.\n\nThe Review Committee reported to the Governor in Council, pursuant to s. 82.1(6)(a), that respondent was a person there are reasonable grounds to believe will engage in organized crime as described in s. 19(1)(d)(ii). The Governor in Council adopted the conclusion of the Review Committee and directed the appellant Minister to issue a certificate under s. 83(1) with respect to respondent's appeal to the Immigration Appeal Board from the deportation order. This certificate was issued, with the result that respondent's appeal would have to be dismissed in so far as it was brought pursuant to s. 72(1)(b).", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-5", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 5", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The hearing of the appeal was adjourned when respondent gave notice that he intended to raise constitutional questions before the Board and three questions were referred to the Federal Court of Appeal for determination. The court found that: (1) ss. 27(1)(d)(ii) and 32(2) of the Immigration Act, 1976, did not infringe ss. 7 , 12 or 15 of the Charter ; (2) ss. 82.1 and 83 did not infringe ss. 12 or 15 of the Charter but the question as to whether they contravened s. 7 was not a question that the Board could refer to the Court pursuant to s. 28(4) of the Federal Court Act; and (3) the Board would, in relying upon the certificate, violate respondent's rights under s. 7 and this violation was not justified under s. 1.\n\nThe constitutional questions stated in this Court queried whether: (1) ss. 82.1 and 83 of the Immigration Act, 1976 infringed s. 7 of the Charter , and if so, whether that infringement was justified under s. 1; (2) whether reliance upon the certificate authorized by s. 83 of the Act filed in respondent's case infringed s. 7 because the process followed by the Security Intelligence Review Committed did not meet the requirements of s. 7.\n\nThe respondent in the main appeal was granted leave to cross‑appeal, and the constitutional questions stated there queried whether ss. 27(1)(d)(ii) and 32(2) of the Act infringed ss. 7 , 12 and 15 of the Charter in that they required the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender, and if so, whether that infringement was justified under s. 1.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-6", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 6", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Held: The appeal should be allowed and the cross‑appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross‑appeal, the requirement that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied.\n\nThe Court must look to the principles and policies underlying immigration law in determining the scope of principles of fundamental justice as they apply here. The most fundamental principle of immigration law is that non‑citizens do not have an unqualified right to enter or remain in the country. The common law recognizes no such right and the Charter recognizes the distinction between citizens and non‑citizens. While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2) , only citizens are accorded the right \"to enter, remain in and leave Canada\" in s. 6(1) . Parliament therefore has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non‑citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-7", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 7", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "A permanent resident has a right to remain in Canada only if he or she has not been convicted of a more serious offence ‑‑ one for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non‑arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non‑citizen to remain in the country. All persons falling within the class of permanent residents described in s. 27(1)(d)(ii) have deliberately violated an essential condition under which they were permitted to remain in Canada. Fundamental justice is not breached by deportation: it is the only way to give practical effect to the termination of a permanent resident's right to remain in Canada. Compliance with fundamental justice does not require that other aggravating or mitigating circumstances be considered.\n\nThe deportation authorized by ss. 27(1)(d)(ii) and 32(2) was not cruel and unusual. The standards of decency are not outraged by the deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a serious criminal offence. Rather, those standards would be outraged if individuals granted conditional entry into Canada were permitted to violate those conditions deliberately and without consequence.\n\nA deportation scheme applicable to permanent residents, but not to citizens, does not infringe s. 15 of the Charter . Section 6 of the Charter specifically provides for differential treatment of citizens and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2) , only citizens are accorded the right to enter, remain in and leave Canada in s. 6(1) .", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-8", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 8", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The effect of the certificate under s. 83 was to direct the Immigration Appeal Board to dismiss any appeal made on compassionate grounds pursuant to s. 72(1)(b) and so limit the appeal to questions of fact or law or mixed fact and law. Neither the substantive provisions nor the procedure followed by the Review Committee resulted in a s. 7 violation.\n\nThe impugned legislation is consistent with s. 7 of the Charter . Section 7 does not mandate the provision of a compassionate appeal from a decision which comports with principles of fundamental justice. The right to appeal from the adjudicator's decision, first to the Board on questions of fact or law or mixed fact and law, and then to the Federal Court of Appeal with leave on questions of law, offers ample protection to an individual from an erroneous decision by the adjudicator and clearly satisfies the principles of fundamental justice. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7. There has never been a universally available right of appeal from a deportation order on \"all the circumstances of the case\".\n\nThe scope of principles of fundamental justice will vary with the context and the interests at stake. Similarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a particular context, are not fixed standards. In assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of the state and the individual.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-9", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 9", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Assuming that the proceedings before the Review Committee were subject to the principles of fundamental justice, those principles were observed, having regard to the information disclosed to respondent, the procedural opportunities available to him, and the competing interests at play in this area.\n\nIn the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair procedure since the Committee's investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue, removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources. The Canadian Security Intelligence Service Act and the Security Intelligence Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable balance between them. The Rules expressly direct that the Committee's discretion be exercised with regard to this balancing of interests.\n\nThe various documents given respondent provided sufficient information to know the substance of the allegations against him, and to be able to respond. It was not necessary, in order to comply with fundamental justice in this context, that respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire that information.\n\nCases Cited", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-10", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 10", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Referred to: Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741; Prata v. Minister of Manpower & Immigration, [1976] 1 S.C.R. 376; Reference as to the effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269; Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Lyons, [1987] 2 S.C.R. 309; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452; R. v. Scott, [1990] 3 S.C.R. 979; Ross v. Kent Inst. (1987), 57 C.R. (3d) 79.\n\nStatutes and Regulations Cited\n\nCanadian Charter of Rights and Freedoms , ss. 1 , 6(1) , (2)( a ) , (b), 7 , 12 , 15(1) .\n\nCanadian Security Intelligence Service Act, S.C. 1984, c. 21, ss. 43, 44, 48(2), 48. to 51.\n\nCriminal Code, R.S.C. 1970, c. C‑34, ss. 331(1)(a).\n\nFederal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(4).\n\nImmigration Act, 1976, S.C. 1976‑77, c. 52, ss. 4(2), 19(1)(d)(ii), 27(1)(d)(i), (ii), (3), (4), 32(2), 72(1)(a), (b) [am. S.C. 1984, c. 21, s. 81], 82.1(1), (2)(a), (c), (3), (4), (5), (6)(a), (b) [am. S.C. 1984, c. 21, s. 84], 83(1)(a), (2) [am. S.C. 1984, c. 21, s. 84].", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-11", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 11", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 4(2).\n\nSecurity Intelligence Review Committee Rules, ss. 48(1), (2), (3), (4), 45 to 51.\n\nAuthors Cited\n\nCanada. Department of Employment and Immigration. White Paper on Immigration. Ottawa: Queen's Printer, 1966.\n\nConcise Oxford Dictionary. Oxford: Oxford University Press, 1990.\n\nPetit Robert 1. Par Paul Robert. Paris: Le Robert, 1990.\n\nAPPEAL from a judgment of the Federal Court of Appeal, [1990] 2 F.C. 299, 67 D.L.R. (4th) 697, 107 N.R. 107, 1 C.R.R. (2d) 230, 10 Imm. L.R. (2d) 137, 42 Admin. L.R. 189. Appeal allowed and cross‑appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross‑appeal, the requirement that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied.\n\nDavid Sgayias, Q.C., and Gerry N. Sparrow, for the appellant.\n\nIrwin Koziebrocki and David Schermbrucker, for the respondent.\n\nSimon Noël and Sylvie Roussel, for the intervener.\n\nThe judgment of the Court was delivered by\n\n//Sopinka J.//", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-12", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 12", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Sopinka J. -- This appeal calls into question the constitutionality of the statutory scheme pursuant to which a permanent resident can be deported from Canada if, upon the report of an immigration officer and following an inquiry, he is found to have been convicted of an offence for which a term of imprisonment of five years or more may be imposed. The scheme is attacked on the grounds that it violates ss. 7 and 12 of the Canadian Charter of Rights and Freedoms . A further attack, based on s. 7 of the Charter , is brought against the interaction of that scheme with investigations conducted by the Security Intelligence Review Committee into the activities of persons reasonably believed to be involved in certain types of criminal or subversive activity.\n\nI. The Legislative Scheme\n\nThis appeal requires the Court to consider the operation of a comprehensive legislative scheme which governs the deportation of permanent residents who have been convicted of certain criminal offences. I find it convenient to reproduce the relevant provisions at the outset. The provisions are those that were in force when these proceedings were commenced by the inquiry before the adjudicator. Since that time, several of the section numbers have been amended and there have been other minor amendments such as the consolidation of two subsections into one. However the substance of the provisions relevant to this appeal remains the same. (See Immigration Act, R.S.C., 1985, c. I‑2).\n\nImmigration Act, 1976, S.C. 1976‑77, c. 52, as amended by the Canadian Security Intelligence Service Act, S.C. 1984, c. 21\n\n4. . . .\n\n(2) Subject to any other Act of Parliament, a Canadian citizen, a permanent resident and a Convention refugee while lawfully in Canada have a right to remain in Canada except where", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-13", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 13", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "(a) in the case of a permanent resident, it is established that that person is a person described in subsection 27(1);\n\n19. (1) No person shall be granted admission if he is a member of any of the following classes:\n\n. . .\n\n(d) persons who there are reasonable grounds to believe will\n\n. . .\n\n(ii) engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment;\n\n27. (1) Where an immigration officer or peace officer has in his possession information indicating that a permanent resident is a person who\n\n. . .\n\n(d) has been convicted of an offence under any Act of Parliament for which a term of imprisonment of\n\n(i) more than six months has been imposed, or\n\n(ii) five years or more may be imposed,\n\n. . .\n\nhe shall forward a written report to the Deputy Minister setting out the details of such information.\n\n(3) Subject to any order or direction of the Minister, the Deputy Minister shall, on receiving a report pursuant to subsection (1) or (2), and where he considers that an inquiry is warranted, forward a copy of that report and a direction that an inquiry be held to a senior immigration officer.\n\n(4) Where a senior immigration officer receives a copy of a report and a direction pursuant to subsection (3), he shall, as soon as reasonably practicable, cause an inquiry to be held concerning the person with respect to whom the report was made.\n\n32. . . .\n\n(2) Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), he shall, subject to subsections 45(1) and 47(3) [convention refugee], make a deportation order against that person.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-14", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 14", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "72. (1) Subject to subsection (3), where a removal order is made against a permanent resident . . . that person may appeal to the Board on either or both of the following grounds, namely,\n\n(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and\n\n(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.\n\n82.1 (1) In this section and section 83, \"Review Committee\" has the meaning assigned to that expression by the Canadian Security Intelligence Service Act.\n\n(2) Where the Minister and the Solicitor General are of the opinion, based on security or criminal intelligence reports received and considered by them, that\n\n(a) a person who has made . . . an appeal pursuant to paragraph 72(1)(b) . . .\n\n. . .\n\nis a person described,\n\n(c) in the case of a permanent resident, in subparagraph 19(1)(d)(ii) or paragraph 19(1)(e) or (g) or 27(1)(c),\n\n. . .\n\nthey may make a report to the Review Committee and shall, within ten days after the report is made, cause a notice to be sent informing the person who made the appeal of the report and stating that following an investigation in relation thereto, the appeal may be dismissed.\n\n(3) Where a report is made to the Review Committee pursuant to subsection (2), the Review Committee shall investigate the grounds on which it is based and for that purpose subsections 39(2) and (3) and sections 43, 44 and 48 to 51 of the Canadian Security Intelligence Service Act apply, with such modifications as the circumstances require, to the investigation as if the investigation were conducted in relation to a complaint made pursuant to section 42 of the Act, except that", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-15", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 15", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "(a) a reference in any of those provisions, to \"deputy head\" shall be read as a reference to the Minister and the Solicitor General; and\n\n(b) paragraph 50(a) of that Act does not apply with respect to the person concerning whom the report is made.\n\n(4) The Review Committee shall, as soon as practicable after a report is made to it pursuant to subsection (2), send to the person who made the appeal referred to in that subsection a statement summarizing such information available to it as will enable the person to be as fully informed as possible of the circumstances giving rise to the report.\n\n(5) Notwithstanding anything in this Act, where a report concerning any person is made to the Review Committee pursuant to subsection (2), the hearing of an appeal concerning the person ... pursuant to paragraph 72(1)(b) . . . shall be adjourned until the Review Committee has, pursuant to subsection (6), made a report to the Governor in Council with respect to that person and the Governor in Council has made a decision in relation thereto.\n\n(6) The Review Committee shall,\n\n(a) on completion of an investigation in relation to a report made to it pursuant to subsection (2), make a report to the Governor in Council containing its conclusion whether or not a certificate should be issued under subsection 83(1) and the grounds on which that conclusion is based; and\n\n(b) at the same time as or after a report is made pursuant to paragraph (a), provide the person who made the appeal referred to in subsection (2) with a report containing the conclusion referred to in that paragraph.\n\n83. (1) Where, after considering a report made by the Review Committee referred to in paragraph 82.1(6)(a), the Governor in Council is satisfied that a person referred to in paragraph 82.1(2)(a) . . . is a person described", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-16", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 16", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "(a) in the case of a permanent resident, in subparagraph 19(1)(d)(ii) or paragraph 19(1)(e) or (g) or 27(1)(c),\n\n. . .\n\nthe Governor in Council may direct the Minister to issue a certificate to that effect.\n\n(2) Notwithstanding anything in this Act, the Board shall dismiss any appeal made . . . pursuant to paragraph 72(1)(b) . . . if a certificate referred to in subsection (1), signed by the Minister, is filed with the Board.\n\nCanadian Security Intelligence Service Act, S.C. 1984, c. 21 (now R.S.C., 1985, c. C‑23 )\n\n48. . . .\n\n(2) In the course of an investigation of a complaint under this Part by the Review Committee, the complainant, deputy head concerned and the Director shall be given an opportunity to make representations to the Review Committee, to present evidence and to be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person.\n\nCanadian Charter of Rights and Freedoms\n\n6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.\n\n(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right\n\n(a) to move to and take up residence in any province; and\n\n(b) to pursue the gaining of a livelihood in any province.\n\n7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.\n\n12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-17", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 17", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.\n\nII. Facts and Proceedings\n\nThe respondent, Joseph (Giuseppe) Chiarelli, was born in Italy in 1960. He received landed immigrant status upon his arrival in Canada in 1975. On November 1, 1984, the respondent pleaded guilty to unlawfully uttering threats to cause injury, contrary to s. 331(1)(a) of the Criminal Code, R.S.C. 1970, c. C‑34, as amended, an offence punishable by a maximum of ten years' imprisonment. He received a suspended sentence. On November 5, 1984, he pleaded guilty to possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1, as amended, which carries a maximum sentence of life imprisonment. He was sentenced to six months' imprisonment. In January of 1986, Immigration Officer A. Zografos signed a report pursuant to s. 27 of the Immigration Act, 1976 (\"the Act\"), identifying the respondent as a permanent resident described in s. 27(1)(d)(ii), that is, a permanent resident who has been convicted of an offence for which a term of imprisonment of five years or more may be imposed.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-18", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 18", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "As a result of this report, an inquiry was directed pursuant to s. 27(3) of the Act. The respondent was notified of this inquiry and attended. At the conclusion of the inquiry on May 7, 1986, Adjudicator J. E. McNamara determined, relying on the Narcotic Control Act conviction, that the respondent was a person described in s. 27(1)(d)(ii). He therefore made a deportation order against the respondent pursuant to s. 32(2). The hearing of the respondent's appeal to the Immigration Appeal Board against the deportation order, brought pursuant to s. 72(1) (now R.S.C., 1985, c. I-2, s. 70(1)), was adjourned after the Solicitor General and the Minister of Employment and Immigration made a joint report to the Security Intelligence Review Committee (the \"Review Committee\") pursuant to s. 82.1(2) (now s. 81(2)). The report indicated that in the opinion of the ministers, the respondent was a person described in s. 19(1)(d)(ii), that is, a person who there are reasonable grounds to believe will engage in activity that is part of a pattern of organized criminal activity.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-19", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 19", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Upon receipt of the joint report, the Review Committee conducted the required investigation and a hearing was held on September 2 and 3, 1987. Prior to this hearing the respondent was provided with a document entitled \"Statement of Circumstances giving rise to the making of a Report by the Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence Review Committee\", as well as two summaries of information. The first was a document entitled \"Chronology of Information and Occurrences Relating to Giuseppe Chiarelli\" and consisted of an extensive summary of surveillance of the respondent. The second document was entitled \"Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco\". The first day of the hearing was held in camera and a summary of the evidence provided to the respondent. This summary indicated that evidence was led that the respondent, together with certain named individuals, was a member of a criminal organization which engaged in extortion and drug related activities, and further that the respondent personally took part in the extortion and drug related activities of the organization.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-20", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 20", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the second day of the hearing, the respondent attended with counsel. The \"Statement of Circumstances\", the \"Chronology of Information\" and the \"Summary of Interpretation of Intercepted Private Communications\" were placed before the Review Committee, as were the criminal records of the respondent and his alleged associates. The respondent was then invited to respond. Counsel for the respondent objected to the fairness and constitutionality of the proceeding. He submitted no evidence at the hearing and chose not to cross‑examine the two RCMP witnesses who had testified on the first day. He did, however, later make written submissions to the Committee.\n\nAfter consideration of the matter, the Review Committee reported to the Governor in Council, pursuant to s. 82.1(6)(a) (now s. 81(7)), that the respondent was a person described in s. 19(1)(d)(ii). The Governor in Council adopted the conclusion of the Review Committee and directed the appellant Minister to issue a certificate under s. 83(1) (now s. 82(1)) with respect to the respondent's appeal to the Immigration Appeal Board from the deportation order. This certificate was issued, with the result that the respondent's appeal would have to be dismissed in so far as it was brought pursuant to s. 72(1)(b) (now s. 70(1)(b)).\n\nThe hearing of the appeal was scheduled to resume in February of 1988. The respondent, however, gave notice that he intended to raise constitutional questions before the Board and the hearing was adjourned. On February 1, 1989, the Board, with the agreement of the parties, referred three questions to the Federal Court of Appeal for determination pursuant to s. 28(4) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10:", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-21", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 21", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "1. (a)do paragraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now paragraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, R.S.C. 1985, c. I‑2) infringe or deny the rights guaranteed by sections 7 , 12 and 15 of the Canadian Charter of Rights and Freedoms in that they require the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender;\n\n(b)if the paragraph and subsection referred to above do infringe or deny the rights guaranteed by sections 7 , 12 and 15 of the Charter , are they justified by section 1 of the Charter ?\n\n2. (a)do sections 82.1 and 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now sections 81 and 82 of the Immigration Act, R.S.C. 1985, c. I‑2) infringe or deny the rights guaranteed by sections 7 , 12 and 15 of the Charter as those provisions:\n\n(i) deprive individuals of the right to life, liberty and security of the person in violation of the principles of fundamental justice, and/or;\n\n(ii) subject individuals to cruel and unusual punishment? and/or;\n\n(iii) deny individuals equality before and under the law?\n\n(b)if the sections referred to above do infringe or deny the rights guaranteed by sections 7 , 12 and 15 of the Charter , are they justified by section 1 of the Charter ?", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-22", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 22", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "3. (a)does reliance upon the Certificate authorized by section 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now section 82 of the Immigration Act, R.S.C. 1985, c. I‑2) filed in Mr. Chiarelli's case result in an infringement of his rights pursuant to section 7 of the Charter , because the process followed by the Security Intelligence Review Committee did not meet the requirements of section 7?\n\n(b)if reliance upon the Certificate does infringe or deny the right guaranteed by section 7 of the Charter , is it justified by section 1 of the Charter ?\n\nIII. Judgment of the Federal Court of Appeal, [1990] 2 F.C. 299\n\nPratte J.A. (dissenting on the answer to reference question 3(b))\n\nPratte J.A. held that the combination of ss. 27(1)(d)(ii) and 32(2) of the Act does not violate s. 12 of the Charter because they do not impose a punishment. Section 32(2) is the corollary of the limits imposed by s. 4 of the Act on the right of a permanent resident to come to and remain in Canada. Similarly he held that they do not violate s. 7 since there is no injustice in requiring the deportation of a person who has lost the right to remain in Canada. Finally there is no violation of s. 15. Section 6 of the Charter specifically provides for different treatment of citizens and permanent residents regarding the right to remain in Canada. Nor does a distinction between permanent residents who have been convicted of an offence described in s. 27(1)( d ) (ii) and other permanent residents amount to discrimination within the meaning of s. 15.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-23", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 23", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Pratte J.A. refused to answer the second question of the reference in so far as it related to s. 7 of the Charter as it had not been determined by the Immigration Appeal Board that the respondent had not been given a full opportunity to refute the allegations against him. He held that there was no violation of s. 12 or s. 15.\n\nWith respect to the third question, he observed that the filing of the s. 83 certificate had the effect of depriving the Immigration Appeal Board of its power to allow the respondent's appeal on compassionate grounds. The resulting deportation necessarily implied an interference with the liberty of the person. In concluding that the respondent's rights under s. 7 of the Charter had been infringed, Pratte J.A. observed at p. 318 that \"it is a requirement of fundamental justice that no decision be made determining the rights of a person without giving that person a meaningful opportunity to be heard\". In order to have a meaningful opportunity to be heard, the respondent had to know the information before the Review Committee in order to be able to contradict it. The respondent had not been provided this opportunity and therefore the procedure followed by the Review Committee did not meet the requirements of fundamental justice.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-24", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 24", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Pratte J.A. concluded, however, that this limitation could be justified under s. 1 of the Charter . Section 48(2) of the Canadian Security Intelligence Service Act (\"CSIS Act\") which denies a party the right to be informed of the evidence led by the other party imposes a reasonable limit in light of the need to protect the secrecy of police investigations of organized criminal activities. This was particularly the case in view of the fact that the Committee's investigation was not to determine the guilt of the respondent, but only whether he deserved to benefit from an appeal on purely compassionate grounds.\n\nStone J.A. (Urie J.A. concurring)\n\nThe majority agreed with Pratte J.A.'s reasons except that in their view, the violation of s. 7 could not be justified under s. 1 of the Charter . Although the interest of the state in protecting confidential police sources and techniques is of sufficient importance to warrant overriding constitutionally protected rights and the withholding of information is rationally connected to that objective, the majority concluded that the procedure enacted by s. 82.1(3) (now s. 81(4)) failed the remaining requirements of the proportionality test. Rather than balancing the state's interest in protecting confidential sources and techniques with the individual's interest in fundamental justice, it was the majority's view that the provision opts for a \"complete obliteration\" of the individual's right in favour of the state's interest.\n\nThe Federal Court of Appeal answered the questions put to it as follows:\n\n1.Subparagraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, 1976 do not infringe section 7 , 12 or 15 of the Canadian Charter of Rights and Freedoms .", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-25", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 25", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "2.Sections 82.1 and 83 of the Immigration Act, 1976 do not infringe section 12 or 15 of the Canadian Charter of Rights and Freedoms .\n\nThe question whether those sections contravene section 7 of the Charter is not a question that the Board may refer to the Court pursuant to subsection 28(4) of the Federal Court Act.\n\n3.(a)The Board would, in relying upon the certificate issued pursuant to section 83 in respect of Mr. Chiarelli, violate Mr. Chiarelli's rights under section 7 of the Charter .\n\n(b)The violation of section 7 is not justified by section 1 of the Charter .\n\nIV. Issues\n\nThe appellant was granted leave to appeal and the following constitutional questions were stated by Gonthier J.:\n\n1.(a) Do sections 82.1 and 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now ss. 81 and 82 of the Immigration Act, R.S.C., 1985, c. I‑2) infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms ?\n\n(b) If the sections referred to above do infringe or deny the rights guaranteed by s. 7 of the Charter , are they justified by s. 1 of the Charter ?\n\n2.(a) Does reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 82 of the Immigration Act, R.S.C., 1985, c. I‑2) filed in the respondent's case result in an infringement of his rights pursuant to s. 7 of the Charter , because the process followed by the Security Intelligence Review Committee did not meet the requirements of s. 7?\n\n(b) If reliance upon the certificate does infringe or deny the rights guaranteed by s. 7 of the Charter , is it justified by s. 1 of the Charter ?", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-26", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 26", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent in the main appeal was granted leave to cross‑appeal, and the following constitutional questions were stated by Gonthier J.:\n\n1.(a) Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, R.S.C., 1985, c. I‑2) infringe or deny the rights guaranteed by ss. 7 , 12 and 15 of the Canadian Charter of Rights and Freedoms in that they require the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender?\n\n(b) If the paragraph and subsection referred to above do infringe or deny the rights guaranteed by ss. 7 , 12 and 15 of the Charter , are they justified by s. 1 of the Charter ?\n\nThe answers to these questions will dispose of the questions submitted to the Court of Appeal pursuant to s. 28(4) of the Federal Court Act with this exception. Question 2 at the Federal Court of Appeal corresponds to Question 1 in the main appeal but referred to s. 12 and s. 15 in addition to s. 7 of the Charter . Sections 12 and 15 were neither argued by the parties in this Court nor referred to in the constitutional questions. In the circumstances, I will not deal with them.\n\nV. Analysis", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-27", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 27", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The cross‑appeal attacks the general scheme providing for deportation of permanent residents who have been convicted of certain criminal offences. The main appeal concerns the removal of a ground of appeal from a deportation order and the procedure by which that removal is effected. I will address the cross‑appeal first. Throughout these reasons I will refer to Chiarelli as \"the respondent\" and the Minister as \"the appellant\", although their positions are actually reversed on the cross-appeal.\n\n1.Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976 violate the Charter ?\n\nSection 27(1) requires an immigration officer in possession of information that a permanent resident falls into one of its enumerated classes to forward a report setting out the details of that information to the Deputy Minister. The relevant class in this case is that set out in s. 27(1)(d)(ii), a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of five years or more may be imposed. An inquiry is then held by an adjudicator in cases where the Deputy Minister considers that one is warranted (s. 27(3)). Section 32(2) provides that where an adjudicator decides that a person who is the subject of an inquiry does fall within one of the classes in s. 27(1), the adjudicator shall, except in the case of a convention refugee, make a deportation order against that person.\n\n(a) Section 7", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-28", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 28", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The essence of the respondent's position is that ss. 27(1)(d)(ii) and 32(2) are contrary to principles of fundamental justice because they are mandatory and require that deportation be ordered without regard to the circumstances of the offence or the offender. The appellant correctly points out that the threshold question is whether deportation per se engages s. 7, that is, whether it amounts to a deprivation of life, liberty or security of the person. The Federal Court of Appeal in Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35, held that deportation for serious offences is not to be conceptualized as a deprivation of liberty. I do not find it necessary to answer this question, however, since I am of the view that there is no breach of fundamental justice.\n\nThe principles of fundamental justice are to be found in the basic tenets of our legal system. Lamer J. (as he then was) stated in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 513:\n\nWhether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.\n\nHe recognized, at p. 513, that \"principles of fundamental justice\" could not be defined in the abstract but would have to be interpreted in the context of alleged violations:\n\n. . . those words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meaning as the courts address alleged violations of s. 7.\n\nThe importance of a contextual approach to the interpretation of s. 7 was emphasized by Cory J. in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 226:", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-29", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 29", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is now clear that the Charter is to be interpreted in light of the context in which the claim arises. Context is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society.\n\nHe noted that under a contextual approach, constitutional standards developed in the criminal context could not automatically be applied to regulatory offences. Similarly in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, McLachlin J. adopted at p. 848 a contextual approach which \"takes into account the nature of the decision to be made\". She concluded that in defining the fundamental justice relevant to extradition, the Court must draw upon the principles and policies underlying extradition law and procedure.\n\nThus in determining the scope of principles of fundamental justice as they apply to this case, the Court must look to the principles and policies underlying immigration law. The most fundamental principle of immigration law is that non‑citizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country: R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376.\n\nLa Forest J. recently reiterated this principle in Kindler v. Canada (Minister of Justice), supra, at p. 834:", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-30", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 30", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so. This right, of course, exists independently of extradition. If an alien known to have a serious criminal record attempted to enter into Canada, he could be refused admission. And by the same token, he could be deported once he entered Canada.\n\n. . .\n\nIf it were otherwise, Canada could become a haven for criminals and others whom we legitimately do not wish to have among us.\n\nThe distinction between citizens and non‑citizens is recognized in the Charter . While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2), only citizens are accorded the right \"to enter, remain in and leave Canada\" in s. 6(1).", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-31", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 31", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non‑citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act. Section 5 of the Act provides that no person other than a citizen, permanent resident, Convention refugee or Indian registered under the Indian Act has a right to come to or remain in Canada. The qualified nature of the rights of non‑citizens to enter and remain in Canada is made clear by s. 4 of the Act. Section 4(2) provides that permanent residents have a right to remain in Canada except where they fall within one of the classes in s. 27(1). One of the conditions Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be convicted of an offence for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non‑arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non‑citizen to remain in the country. The requirement that the offence be subject to a term of imprisonment of five years indicates Parliament's intention to limit this condition to more serious types of offences. It is true that the personal circumstances of individuals who breach this condition may vary widely. The offences which are referred to in s. 27(1)(d)(ii) also vary in gravity, as may the factual circumstances surrounding the commission of a particular offence. However there is one element common to all persons who fall within the class of permanent residents described in s. 27(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-32", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 32", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "In such a situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inherently unjust about a mandatory order. The fact of a deliberate violation of the condition imposed by s. 27(1)(d)(ii) is sufficient to justify a deportation order. It is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances.\n\n(b) Section 12\n\nThe respondent alleges a violation of s. 12 for essentially the same reasons that he claims s. 7 is infringed. He submits that the combination of s. 27(1)(d)(ii) and 32(2) constitutes cruel and unusual punishment because they require that deportation be ordered without regard to the circumstances of the offence or the offender. He submits that in the case at bar, the deportation order is grossly disproportionate to all the circumstances and further, that the legislation in general is grossly disproportionate, having regard to the many \"relatively less serious offences\" which are covered by s. 27(1)(d)(ii).", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-33", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 33", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "I agree with Pratte J.A. that deportation is not imposed as a punishment. In Reference as to the effect of the Exercise of the Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269, Duff C.J. observed at p. 278 that deportation provisions were \"not concerned with the penal consequences of the acts of individuals\". See also Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 (C.A.), at pp. 606-07, and Hoang v. Canada (Minister of Employment and Immigration), supra. Deportation may, however, come within the scope of a \"treatment\" in s. 12. The Concise Oxford Dictionary (1990) defines treatment as \"a process or manner of behaving towards or dealing with a person or thing ....\" It is unnecessary, for the purposes of this appeal, to decide this point since I am of the view that the deportation authorized by ss. 27(1)(d)(ii) and 32(2) is not cruel and unusual.\n\nThe general standard for determining an infringement of s. 12 was set out by Lamer J., as he then was, in the following passage in R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072:\n\nThe criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 668, \"whether the punishment prescribed is so excessive as to outrage standards of decency\". In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-34", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 34", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage standards of decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately.\n\n(c) Section 15\n\nAlthough the constitutional question stated by Gonthier J. raises the issue of whether ss. 27(1)(d)(ii) and 32(2) violate s. 15 of the Charter , the respondent made no submissions on this issue. I agree, for the reasons given by Pratte J.A. in the Federal Court of Appeal, that there is no violation of s. 15. As I have already observed, s. 6 of the Charter specifically provides for differential treatment of citizens and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2), only citizens are accorded the right to enter, remain in and leave Canada in s. 6(1). There is therefore no discrimination contrary to s. 15 in a deportation scheme that applies to permanent residents, but not to citizens.\n\n2.Do ss. 82.1 and 83 of the Immigration Act, 1976 or Reliance on the Certificate Authorized by s. 83, infringe s. 7 of the Charter ?", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-35", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 35", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Two separate sets of questions were stated on the main appeal -‑ firstly, whether ss. 82.1 and 83 themselves infringe s. 7 and if so whether they can be saved under s. 1, and secondly whether reliance on the certificate authorized by s. 83 infringes s. 7 in a manner that cannot be saved under s. 1. I agree with the submissions of both parties that the question of whether ss. 82.1 and 83 violate s. 7 was properly before the Federal Court of Appeal and should have been answered. It can therefore be addressed by this Court on appeal from the decision of the Federal Court of Appeal.\n\nThe section 7 violation raised in both questions involves the operation of a certificate issued under s. 83 of the Act to deprive the respondent of an appeal under s. 72(1)(b) of the Act. These questions raise two issues -- first, whether the substantive provisions violate s. 7 and secondly, whether the procedure followed by the Review Committee results in a s. 7 violation. I will deal with these issues in that order.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-36", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 36", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The practical significance of ss. 82.1 and 83 of the Act stems from their interaction with the rights of appeal from a s. 32(2) deportation order provided by s. 72(1) of the Act. Section 72(1)(a) provides for a true appeal, based on any question of law or fact or mixed law and fact. Under s. 72(1)(b), Parliament has granted a further appeal on the ground that \"having regard to all the circumstances of the case, the person should not be removed from Canada\". This latter ground of appeal grants the Immigration Appeal Board discretion to quash a deportation order notwithstanding the fact that the individual falls within one of the categories in s. 27(1) such that the deportation order was properly made under s. 32(2). It thus allows for clemency from deportation on compassionate grounds.\n\nSection 82.1 sets out the conditions which may give rise to an investigation by the Review Committee and the procedure to be followed in such an investigation. In general terms the Solicitor General and the Minister of Employment and Immigration may make a report to the Review Committee in respect of a permanent resident who has launched an appeal pursuant to s. 72(1)(b) where they are of the opinion, based on security or criminal intelligence reports, that that person is likely to engage in organized crime, espionage, acts of violence that might endanger the lives or safety of persons in Canada, or subversion by force of any government. In the case of the respondent the joint report was based on s. 19(1)(d)(ii):\n\n19. (1) . . .\n\n(d) persons who there are reasonable grounds to believe will\n\n. . .", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-37", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 37", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "(ii) engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment;\n\nWhen the Review Committee receives such a joint report, it must conduct an investigation into the grounds on which it is based and report to the Governor in Council. Where, after considering the report of the Review Committee, the Governor in Council is satisfied that the person does fall within one of the categories in s. 82.1(2) (the categories pursuant to which the Ministers can make a joint report to the Review Committee), he or she may direct the issuance of a certificate under s. 83. The effect of this certificate is to direct the Immigration Appeal Board to dismiss any appeal made pursuant to s. 72(1)(b). In other words, the individual's appeal will be limited to questions of fact or law or mixed fact or law.\n\nSubstantive Ground", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-38", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 38", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent submits that the impugned legislation is inconsistent with s. 7 of the Charter because it creates a process whereby he is deprived, contrary to the principles of fundamental justice, of his right to appeal against deportation on the ground set out in s. 72(1)(b). The necessary implication of this position is that it is a principle of fundamental justice that a permanent resident who is the subject of deportation proceedings be afforded an appeal on all of the circumstances of the case. Otherwise it cannot be a violation of principles of fundamental justice for Parliament to limit the availability of such an appeal. In my view s. 7 does not mandate the provision of a compassionate appeal from a decision which, as I have already concluded, comports with principles of fundamental justice.\n\nBefore a deportation order can be issued against a permanent resident, an inquiry must be conducted by an adjudicator to determine whether the permanent resident does fall into one of the classes in s. 27(1). Section 72(1)(a) provides for an appeal from such a deportation order on any question of law or fact or mixed law and fact. The decision of the Board is subject to appeal to the Federal Court of Appeal on a question of law if leave is granted by that Court (s. 84 of the Act (now s. 83)). These rights of appeal offer ample protection to an individual from an erroneous decision by the adjudicator. The question is whether principles of fundamental justice require more than this. In order to answer this question it is necessary to consider the \"nature, source, rationale and essential role\" of the right to appeal from deportation orders under the Act and the evolution of that right: Re B.C. Motor Vehicle Act, supra.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-39", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 39", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Immigration Act, S.C. 1910, c. 27, did not provide any specific grounds of appeal. A person ordered deported could only resort to the Minister who, under s. 19, had the authority to overturn a deportation order on unspecified grounds. The Immigration Act, R.S.C. 1952, c. 325, provided for an immigration appeal board; however, appeals against deportation orders remained under the control of the Minister. The appeal board heard only those appeals directed to it by the Minister and the Minister retained the power to confirm or quash the appeal board's decision or substitute his decision as he deemed just and proper. The 1966 White Paper on Immigration criticized the broad overriding power of the Minister with respect to appeals, and recommended that a reconstituted Immigration Appeal Board have authority to deal conclusively with appeals against deportation orders except in \"security cases\". In 1967, the Immigration Appeal Board Act, S.C. 1966‑67, c. 90, established an independent Immigration Appeal Board. Section 11 provided for appeals on any questions of law or fact or mixed law and fact. Section 15, for the first time, conferred upon the Board the power to stay or quash a deportation order made against a permanent resident on the basis of all the circumstances of the case. However s. 21 provided that that new power was still subject to the discretion of the Minister and the Solicitor General who could certify their opinion, based on security or criminal intelligence reports, that it would be contrary to the national interest to permit such relief. In Prata v. Minister of Manpower and Immigration, supra, Martland J. stated at p. 381:", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-40", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 40", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The effect of s. 21 is to reserve to the Crown, notwithstanding the powers conferred upon the Board by the Act, the right, similar to the prerogative right which existed at common law, to determine that the continued presence in Canada of an alien, subject to a deportation order, would not be conducive to the public good.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-41", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 41", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Immigration Appeal Board Act was repealed by the Immigration Act, 1976, s. 128. Section 72 of the Immigration Act, 1976 effectively consolidated ss. 11 and 15 of the former Immigration Appeal Board Act into one section setting out two separate grounds of appeal. However in my view it did not change the nature of the decision that could be made by the Board \"having regard to all the circumstances of the case\". That decision remained, as it had been under the 1967 Act, an exercise of discretion based on compassionate grounds. Section 83 of the Immigration Act, 1976 continued to limit the availability of relief based on all the circumstances of the case. Such an appeal had to be dismissed if the Minister and the Solicitor General certified their opinion that, based on security or criminal intelligence reports, it would be contrary to the national interest to permit it. Finally in 1984 the Security Intelligence Review Committee was established by the CSIS Act. The Review Committee was assigned various functions under several Acts, including the Immigration Act, 1976. Section 83 was repealed and s. 82.1 and an amended version of s. 83 were substituted. Section 82.1 assigned to the Review Committee the task of investigating and reporting to the Governor in Council as to whether a permanent resident came within the classes of persons not entitled to an appeal on all the circumstances of the case. However, the decision as to whether to direct the issuance of a certificate under s. 83 is that of the Governor in Council.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-42", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 42", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "It can thus be seen that there has never been a universally available right of appeal from a deportation order on \"all the circumstances of the case\". Such an appeal has historically been a purely discretionary matter. Although it has been added as a statutory ground of appeal, the executive has always retained the power to prevent an appeal from being allowed on that ground in cases involving serious security interests.\n\nIf any right of appeal from the deportation order in s. 32(2) is necessary in order to comply with principles of fundamental justice, a \"true\" appeal which enables the decision of the first instance to be questioned on factual and legal grounds clearly satisfies such a requirement. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7.\n\nProcedural Ground", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-43", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 43", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent submitted that his s. 7 rights were violated as a result of the procedure followed by the Review Committee. This argument was the basis for the judgment of the majority in the Court of Appeal. I have already concluded that the respondent can assert no substantive right to an appeal on compassionate grounds. It is entirely within the discretion of Parliament whether an appeal on this basis is provided. Accordingly, Parliament could have simply provided that a certificate could issue without any hearing. Does the fact that Parliament has legislated beyond its constitutional requirement to provide that a hearing will be held enable the respondent to complain that the hearing does not comport with the dictates of fundamental justice? It could be argued that the provision of a hearing ex gratia does not expand Parliament's constitutional obligations. I need not resolve this issue in this case because I have concluded that, assuming that proceedings before the Review Committee were subject to the principles of fundamental justice, those principles were observed.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-44", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 44", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "These proceedings took place within the framework of several legislative provisions and Review Committee Rules. Section 82.1(3) of the Immigration Act, 1976 provides that in an investigation by the Review Committee pursuant to a joint report by the Solicitor General and the Minister of Employment and Immigration, ss. 43, 44 and 48 to 51 of the CSIS Act apply, subject to certain specific modifications and with such other modifications as the circumstances require. Section 48(2) of the CSIS Act provides that no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person. Pursuant to s. 39(1) of the Act, the Review Committee adopted the \"Rules of Procedure of the Security Intelligence Review Committee in Relation to its Function Under Paragraph 38(c) of the Canadian Security Intelligence Service Act\". Rules 45 to 51 set out the procedure relating to the making of representations under s. 48(2) of the CSIS Act. A party to an oral hearing may be represented by counsel, may call and examine witnesses and may make representations (Rule 48(1)). It is within the Committee's discretion to exclude from the hearing one or more parties during the giving of evidence or making of representations by another party (Rule 48(3)). It is also within the Committee's discretion, in balancing the requirements of preventing threats to the security of Canada and providing fairness to the person affected, to determine whether a party is entitled to cross-examine witnesses called by other parties (Rule 48(2)) and whether, if a party has been excluded from portions of the hearing, the substance of the evidence given or the representations made by the other party should be disclosed to that party (Rule 48(4)).", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-45", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 45", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The scope of principles of fundamental justice will vary with the context and the interests at stake. In R. v. Lyons, [1987] 2 S.C.R. 309, La Forest J., writing for the majority, stated at p. 361:\n\nIt is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness (see, e.g., the comments to this effect of Wilson J. in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-23). It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.\n\nSimilarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a particular context, are not fixed standards. See: Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682.\n\nIn Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, La Forest J. explained at p. 539 that in assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of the state and the individual:", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-46", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 46", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "What these practices have sought to achieve is a just accommodation between the interests of the individual and those of the state, both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice; see R. v. Lyons, [[1987] 2 S.C.R. 309], at pp. 327 and 329; R. v. Beare, [[1988] 2 S.C.R. 387], at pp. 403-5; also my reasons in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 745 (dissenting on another point); see also R. v. Jones, [1986] 2 S.C.R. 284, at p. 304, per La Forest J. (Dickson C.J. and Lamer J. concurring). The interests in the area with which we are here concerned involve particularly delicate balancing. . . .\n\nIn the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair procedure since the Committee's investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue, removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources. The need for confidentiality in national security cases was emphasized by Lord Denning in R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452 (C.A.), at p. 460:", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-47", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 47", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field, our enemies might try to eliminate the source of information.\n\nOn the general need to protect the confidentiality of police sources, particularly in the context of drug-related cases: see R. v. Scott, [1990] 3 S.C.R. 979, at pp. 994-95. See also Ross v. Kent Inst. (1987), 57 C.R. (3d) 79, at pp. 85-88 (B.C.C.A.), in which that court held that it is not essential in order to comply with principles of fundamental justice that an inmate know the sources of information before the Parole Board as long as he is informed of the substance of that information.\n\nThe CSIS Act and Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable balance between them. The Rules expressly direct that the Committee's discretion be exercised with regard to this balancing of interests.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-48", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 48", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case the respondent was first provided with the \"Statement of Circumstances giving rise to the making of a Report by the Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence Review Committee\". This document set out the nature of the information received by the Review Committee from the Ministers, including that the respondent had been involved in drug trafficking, and was involved in the murder of a named individual. Also prior to the Review Committee hearing, the respondent was provided with an extensive summary of surveillance of his activities (the \"Chronology of Information\") and a \"Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco\". Although the first day of the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented. In my view, these various documents gave the respondent sufficient information to know the substance of the allegations against him, and to be able to respond. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire that information.\n\nThe respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to cross-examine the RCMP witnesses who testified in camera. The Chairman of the Review Committee clearly indicated an intention to allow such cross-examination:", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-49", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 49", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Certainly, it would be my inclination that if the RCMP wish to call witnesses in support of any or all of the comments that they may make in support of the Statement of Circumstances, there would be the opportunity for the applicant's counsel to cross-examine.\n\nThe respondent chose not to exercise these options. Having regard to the information that was disclosed to the respondent, the procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that the procedure followed by the Review Committee in this case did not violate principles of fundamental justice.\n\nVI. Conclusion\n\nI would therefore allow the appeal, dismiss the cross-appeal, both with costs, and answer the constitutional questions as follows:\n\nMain Appeal\n\n1.(a) Do sections 82.1 and 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now ss. 81 and 82 of the Immigration Act, R.S.C., 1985, c. I‑2) infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms ?\n\nAnswer:Assuming without deciding that s. 7 applies, the answer is no.\n\n(b) If the sections referred to above do infringe or deny the rights guaranteed by s. 7 of the Charter , are they justified by s. 1 of the Charter ?\n\nAnswer:This question does not have to be answered.\n\n2.(a) Does reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 82 of the Immigration Act, R.S.C., 1985, c. I‑2) filed in the respondent's case result in an infringement of his rights pursuant to s. 7 of the Charter , because the process followed by the Security Intelligence Review Committee did not meet the requirements of s. 7?", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-50", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 50", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Answer: Assuming without deciding that s. 7 applies, the answer is no.\n\n(b) If reliance upon the certificate does infringe or deny the rights guaranteed by s. 7 of the Charter , is it justified by s. 1 of the Charter ?\n\nAnswer:This question does not have to be answered.\n\nCross‑Appeal\n\n1.(a) Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976, S.C. 1976‑77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, R.S.C., 1985, c. I‑2) infringe or deny the rights guaranteed by ss. 7 , 12 and 15 of the Canadian Charter of Rights and Freedoms in that they require the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender?\n\nAnswer:With respect to s. 15, the answer is no. Assuming, without deciding, that either s. 7 or s. 12 apply, the answer is no.\n\n(b) If the paragraph and subsection referred to above do infringe or deny the rights guaranteed by ss. 7 , 12 and 15 of the Charter , are they justified by s. 1 of the Charter ?\n\nAnswer:This question does not have to be answered.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-855-51", - "doc_type": "caselaw", - "act_code": "[1992] 1 SCR 711", - "act_short": "Chiarelli", - "act_name": "Canada (Minister of Employment and Immigration) v. Chiarelli", - "section": "", - "citation": "Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711", - "marginal_note": "excerpt 51", - "heading": "Charter s. 7 fundamental justice and the deportation of permanent residents for serious criminality", - "part": "Supreme Court of Canada", - "division": "", - "text": "Appeal allowed and cross‑appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross‑appeal, the requirement that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied.", - "current_to": "1992-03-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/855/index.do" - }, - { - "id": "scc-1940-1", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 1–2", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The fundamental question in this appeal is whether the factor of potential foreign hardship can be considered in deciding whether to uphold an order to remove an individual from Canada. More specifically, this appeal concerns the interpretation of the phrase “having regard to all the circumstances of the case”, as employed in s. 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the “Act”). These words define, in part, what has come to be called the “discretionary” or “equitable” jurisdiction of the Immigration Appeal Division (“I.A.D.”) of Canada’s Immigration and Refugee Board (“I.R.B.”).\n\nThe question is whether this jurisdiction allows the I.A.D. to consider the potential foreign hardship a permanent resident would face if removed from Canada, or whether only domestic factors can be taken into account. The appellant, Huor Chieu, argues for the former interpretation, on the grounds that a decision regarding whether an individual is to be removed must be informed by where he or she will be removed to. The respondent Minister of Citizenship and Immigration supports the latter interpretation, arguing that where an individual will be removed to is not decided until after the I.A.D. upholds his or her removal, and it is therefore premature for the I.A.D. to consider foreign factors in deciding whether to quash or stay a removal order. The Minister’s position was adopted in the courts below.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-2", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 3–4", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Ahmad Abdulaal Al Sagban, in the companion case of Al Sagban v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 133, 2002 SCC 4, reasons which are also being released on this date, makes arguments similar to the appellant’s regarding the proper interpretation of s. 70(1)(b). Chieu and Al Sagban were heard together before this Court. Some of the facts and lower decisions in Al Sagban will be referred to in the course of these reasons.\n\nI conclude that the appellant’s arguments should prevail and that the I.A.D. can consider foreign hardship in deciding whether to quash or stay a removal order under s. 70(1)(b). II. Relevant Statutory Provisions", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-3", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 5", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "There are three statutory provisions which are at the heart of this appeal — ss. 70(1), 52 and 114(2) of the Act, which are set out below. Many other provisions are relevant to the particular facts of this case and to the overall scheme of the Act. They will be cited as they become relevant throughout the course of these reasons. Section 70(1) establishes the I.A.D.’s jurisdiction with respect to appeals by permanent residents from removal orders entered against them (although not law, I have included the marginal notes to the relevant provisions of the Act throughout these reasons as an explanatory aid): 70. (1) [Appeals by permanent residents and persons in possession of returning resident permits] Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely, (a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-4", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 6", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 52 is the provision under which the country of removal is determined: 52. (1) [Voluntary departure] Unless otherwise directed by the Minister, a person against whom an exclusion order or a deportation order is made may be allowed to leave Canada voluntarily and to select the country for which that person wishes to depart. (2) [Place to which removed] Where a person is not allowed to leave Canada voluntarily and to select the country for which he wishes to depart pursuant to subsection (1), that person shall, subject to subsection (3), be removed from Canada to (a) the country from which that person came to Canada; (b) the country in which that person last permanently resided before he came to Canada; (c) the country of which that person is a national or citizen; or (d) the country of that person’s birth. (3) [Idem] Where a person is to be removed from Canada and no country referred to in subsection (2) is willing to receive him, the person, with the approval of the Minister, or the Minister, may select any other country that is willing to receive that person within a reasonable time as the country to which that person shall be removed. (4) [Idem] Notwithstanding subsections (1) and (2), where a removal order is made against a person described in paragraph 19(1)(j), the person shall be removed from Canada to a country selected by the Minister that is willing to receive the person.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-5", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 7–9", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 114(2) confers a discretionary decision-making power on the Minister: 114. . . . (2) [Exemption from regulations] The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. III. Facts\n\nThe appellant was born in Cambodia on December 2, 1966. In 1975, he and his family fled to Vietnam in order to escape the Cambodian civil war. The Chieu family resided in Vietnam under a series of temporary resident permits until 1993. On February 12, 1988, the appellant married a Vietnamese citizen. They had a son on November 20, 1988.\n\nIn 1989, the appellant’s sister came to Canada, sponsored by her Canadian fiancé. In 1991, she in turn sponsored her family, including the appellant, to come to Canada. The appellant submitted his Application for Permanent Residence in Canada at the Canadian Embassy in Bangkok, Thailand, on March 17, 1992. In the application, he misrepresented his status, stating that he was single with no dependents. He did this in order to be eligible to be sponsored as an accompanying dependent of his father as a member of the family class. A previous application, in which he had correctly stated his marital status, had been refused. The misrepresentation was not discovered at the time, and the appellant was landed in Canada on October 21, 1993, along with his parents and brothers. He became a permanent resident of Canada at that time.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-6", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 10", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "On March 29, 1994, the appellant attended at the Canada Immigration offices in Winnipeg and made an application to sponsor his wife and child to come to Canada. As a result of this disclosure, an immigration officer reported that the appellant had become a permanent resident of Canada by reason of the misrepresentation of a material fact contrary to s. 27(1)(e) of the Act, which reads: 27. (1) [Reports on permanent residents] An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who . . . (e) was granted landing by reason of possession of a false or improperly obtained passport, visa or other document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person . . . . An inquiry was directed to be held by the Director of Immigration for the Prairie Northwest Territories Region.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-7", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 11", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the inquiry of June 29, 1994, the appellant conceded that he had made a material misrepresentation on his application for permanent resident status. He further stated that he would not be making a refugee claim. The adjudicator ordered his removal pursuant to s. 32(2) of the Act, on the basis that the appellant was a person described in s. 27(1)(e) of the Act. Section 32(2) reads: 32. . . . (2) [Where person is a permanent resident] Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections (2.1) and 32.1(2), make a deportation order against that person. The appellant appealed the order to the I.A.D., not on legal grounds pursuant to s. 70(1)(a) — as he conceded that the removal order was correct in law — but on discretionary grounds pursuant to s. 70(1)(b). On October 30, 1995, the I.A.D. dismissed the appeal, a decision which was upheld by the Federal Court, Trial Division on December 18, 1996 and by the Federal Court of Appeal on December 3, 1998. Leave to appeal to this Court was granted on October 14, 1999. IV. Judicial History A. Immigration Appeal Division, [1995] I.A.D.D. No. 1055 (QL)", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-8", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 12", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Board Member Wiebe noted that, in an appeal pursuant to s. 70(1)(b), the onus is on an appellant to establish that, having regard to all the circumstances of the case, he or she should not be removed from Canada. She held that the appellant Chieu failed to meet that burden. The board member found that there was “no evidence of oppression or even of significant hardship” facing the appellant in Vietnam. She also made some brief comments regarding the appellant’s lack of connections to Cambodia. However, she gave “minimal” weight to the evidence regarding foreign hardship as she believed, following Hoang v. Canada (Minister of Employment and Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.), that “it is premature for the Appeal Division to take into account the conditions of the person’s country of origin, as the determination of to which country the deported person will be sent rests with the Minister of Immigration”. The relevant domestic considerations did not weigh in favour of allowing the appellant to remain in Canada, and therefore the appeal was dismissed. B. Federal Court, Trial Division (1996), 125 F.T.R. 76", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-9", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 13", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant obtained leave from the Federal Court, Trial Division to commence an application for judicial review of the I.A.D.’s decision pursuant to s. 82.1 of the Act. Before the court, the appellant argued that the I.A.D. had erred in not fully considering the potential hardship he would face in Cambodia, as this was the only country that was legally obliged to accept him upon removal from Canada. The appellant further argued that Hoang was a case involving the removal of a refugee and therefore does not apply to the removal of permanent residents who are not Convention refugees. Muldoon J. rejected both arguments. He held that Hoang does apply to appeals by non-refugee permanent residents pursuant to s. 70(1)(b) as “no determination has yet been made [under s. 52] regarding the country to which applicant will be deported” and, as a result, “an assessment of country conditions by the board would have been premature” (paras. 8 and 10). Muldoon J. therefore concluded that the I.A.D. was correct in refusing to consider conditions in either Vietnam or Cambodia.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-10", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 14–15", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Consequently, Muldoon J. dismissed the application for judicial review. In the event that he was in error in applying Hoang outside the refugee context, he certified a serious question of general importance so that an appeal could be brought to the Federal Court of Appeal, pursuant to s. 83(1) of the Act. The certified question stated (at para. 16): Can the Appeal Division of the IRB, in the exercise of its jurisdiction to have “regard to all the circumstances of the case”, under the Immigration Act’s s. 70(1)(b), consider the country (and its conditions) to which the non-refugee appellant would, on the balance of probabilities, be removed when assessing whether “the person should not be removed from Canada”; or not, in accordance with the decision of Mr. Justice MacGuigan in a refugee case, Hoang v. Minister of Employment and Immigration (1990), 120 N.R. 193 at 195; 13 Imm. L.R. (2d) 35 (F.C.A.) quoted above herein? C. Federal Court of Appeal, [1999] 1 F.C. 605\n\nThe Federal Court of Appeal answered the certified question in the negative. Linden J.A. for the court agreed with Muldoon J. that Hoang does apply to permanent residents who are not Convention refugees, on the grounds of consistency. He felt that the confusion over this issue had arisen as a result of the decision of the Immigration Appeal Board (“I.A.B.”) in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), which had included “the degree of hardship that would be caused to the appellant by his return to his country of nationality” as one of the relevant factors to be considered under the discretionary jurisdiction of the I.A.B. The I.A.B. was the predecessor of the I.A.D. and had an identical discretionary jurisdiction pursuant to what was then s. 72(1)(b) of the Act.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-11", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 16", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Linden J.A. overruled Ribic on this point. He stated at para. 15: Let there be no confusion about it — this Court affirms its adherence to Hoang and to its application in non-refugee cases such as this. The Board cannot, in exercising its equitable jurisdiction pursuant to paragraph 70(1)(b), consider, as a circumstance, country conditions in potential destinations of deportees. Moreover, evidence relating to these countries is irrelevant and, therefore, inadmissible. The Board’s jurisdiction under paragraph 70(1)(b) is only to determine whether a person should be removed from Canada. The Board has no business considering the merits or demerits of any potential destination. Linden J.A. based this conclusion on a number of factors: precedent; the overall scheme of the Act; the wording of s. 70(1)(b) when read in its total context; a need to avoid prolonged hearings before the I.A.D.; the fact that the I.A.D. is neither designed nor equipped to deal with such issues; that allowing it to do so would create an alternative refugee system; and that the Federal Court could handle any increase in the number of judicial review applications that could potentially result from preventing the I.A.D. from examining potential foreign hardship.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-12", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 17–19", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Having come to this conclusion, Linden J.A. canvassed four potential avenues of recourse, in lieu of an appeal to the I.A.D., through which an individual facing removal could have foreign hardship concerns taken into account: (1) voluntary departure to a safe country pursuant to s. 52 of the Act; (2) an application under s. 114(2) of the Act, asking the Minister to consider the conditions in the country to which the person is about to be sent; (3) an application for judicial review of the Minister’s s. 52(2) decision regarding the country of removal; or (4) a court challenge of the Minister’s decision on Charter or international law grounds if removal might endanger life or security of the person. Linden J.A. therefore dismissed the appeal. The I.A.D.’s reference to the appellant’s connections to Vietnam was held to be of little importance as “it was a cursory reference of no consequence in arriving at [its decision] in this case” (para. 26). V. Issue\n\nThere is one issue to be resolved in this appeal: do the words “having regard to all the circumstances of the case” in s. 70(1)(b) of the Immigration Act allow the I.A.D. to consider potential foreign hardship when reviewing a removal order made against a permanent resident? VI. Analysis\n\nIn my view, this appeal can be decided by applying principles of administrative law and statutory interpretation, as was the case in this Court’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 11. It is not necessary to address directly the scope and content of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms . A. Standard of Review", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-13", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 20", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Judicial review of any administrative decision must begin with a determination of the proper standard on which the review is to be carried out. Although not explicitly discussed by the courts below in this case, it is apparent that they were reviewing the I.A.D.’s decision on a correctness basis. Is this the appropriate standard? The answer is largely provided by this Court’s decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. In that case, this Court considered, for the first time, the standard of review to be applied to decisions of the I.R.B. For legal questions of general importance, the appropriate standard was held to be correctness. Although Pushpanathan involved the Convention Refugee Determination Division (“C.R.D.D.”) of the I.R.B., not the I.A.D., many of the relevant factors are similar on this appeal.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-14", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 21", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The “pragmatic and functional” approach is employed to determine the proper standard of review in any given case: see U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at pp. 1088-90; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 592; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 28-53; Pushpanathan, supra, at para. 27; and Baker, supra, at para. 52. This approach takes into consideration factors such as the expertise of the tribunal, the nature of the decision being made, the language of the provision and the surrounding legislation, and the intention of Parliament. It recognizes that standards of review are appropriately seen as a spectrum, ranging from patent unreasonableness at the more deferential end of the spectrum, through reasonableness simpliciter, to correctness at the more exacting end of the spectrum: see Pezim, at pp. 589-90; Southam, at paras. 54-56; Pushpanathan, at para. 27; and Baker, at para. 55.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-15", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 22", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appropriate standard of review in this case therefore must be determined by examining the relevant factors. First, the nature of the question under review favours a correctness standard. Like Pushpanathan, supra, and Baker, supra, this appeal involves a serious question of general importance certified pursuant to s. 83(1) of the Act. The jurisdiction of the I.A.D. and the mechanisms through which a decision of the I.A.D. can be appealed are established primarily by the following provisions of the Act: 69.4 . . . (2) [Sole and exclusive jurisdiction] The Appeal Division has, in respect of appeals made pursuant to sections 70, 71 and 77, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in relation to the making of a removal order or the refusal to approve an application for landing made by a member of the family class. 82.1 (1) [Judicial review by Federal Court] An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court — Trial Division. 83. (1) [Certification necessary to appeal] A judgment of the Federal Court — Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court — Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-16", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 23", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The resolution of a certified question will generally be of considerable precedential value. The legislative scheme recognizes this fact by providing that questions of general importance, i.e. those that will be applicable to numerous future cases, may be reviewed by the Federal Court of Appeal and, with leave, by this Court. The Act thus evinces a particular concern that questions of general importance be appropriately resolved. For this reason, Bastarache J. concluded in Pushpanathan, supra, that “s. 83(1) would be incoherent if the standard of review were anything other than correctness” (para. 43). However, in Baker, supra, a decision by the Minister under s. 114(2) of the Act was reviewed by L’Heureux-Dubé J. on the intermediate standard of reasonableness simpliciter, even though a question had been certified in that case. In my opinion, the presence of s. 83(1) is not determinative of the standard of review on its own. As this Court stated in Southam, supra, at paras. 36-37, the precedential value of a case is only one factor relevant to the determination of the appropriate standard of review. While the review of an issue of “general importance” weighs in favour of a correctness standard, other factors relevant to the pragmatic and functional approach must still be considered. Indeed, both Bastarache J. in Pushpanathan and L’Heureux-Dubé J. in Baker went on to examine a number of additional factors.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-17", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 24", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case, the relevant additional factors also favour the correctness standard. The I.A.D. enjoys no relative expertise in the matter of law which is the object of the judicial review. While in Pushpanathan the matter under review was a human rights issue, an area of law in which deference is usually not given, the issue here is one of jurisdiction, a similar area where little deference is shown. Administrative bodies generally must be correct in determining the scope of their delegated mandate, given that they are entirely the creatures of statute. As Bastarache J. stated in Pushpanathan, at para. 28, “it is still appropriate and helpful to speak of ‘jurisdictional questions’ which must be answered correctly by the tribunal in order to be acting intra vires”. While the I.A.D. has considerable expertise in determining the weight to be given to the factors it considers when exercising the discretionary jurisdiction conferred by s. 70(1)(b) of the Act, the scope of this discretionary jurisdiction itself is a legal issue ultimately to be supervised by the courts. The legal nature of the issue is particularly evident in cases like the one before us, where the Minister is arguing that the I.A.D. has usurped her jurisdiction. The factor of expertise weighed in the opposite direction in Baker, because the Minister “has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply” (para. 59). The issue under review in Baker did not involve a jurisdictional issue like the one presently before this Court, and therefore a more deferential standard of review was appropriate.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-18", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 25–26", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "In addition, Parliament has not enacted a strong privative clause for decisions of the I.A.D. (s. 69.4(2)). As Bastarache J. stated in Pushpanathan (at para. 49), in relation to the similarly worded privative clause for the C.R.D.D. (s. 67(1)), “read in the light of s. 83(1), it appears quite clear that the privative clause, such as it is, is superseded with respect to questions of ‘general importance’”. In my opinion, this is also the case for the privative clause contained in s. 69.4(2).\n\nFinally, appeals under s. 70(1)(b) do not engage the I.A.D. in a polycentric balancing of competing interests, but instead require the resolution of an issue in which an individual’s rights are at stake. The I.A.D. is not involved in a managing or supervisory function, but is adjudicating the rights of individuals vis-à-vis the state. This factor also weighs in favour of a less deferential standard of review. For all of these reasons, I conclude that a correctness standard should be applied in reviewing the decision of the I.A.D. in this case. However, it may well be that a more deferential standard would apply to decisions of the I.A.D. in other contexts, particularly if the issue under review were to fall squarely within the specialized expertise of the board. B. Statutory Interpretation", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-19", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 27", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The resolution of this appeal turns on the interpretation given to the words of s. 70(1)(b). What does the phrase “having regard to all the circumstances of the case” mean? Did Parliament intend it to be broad enough to allow the I.A.D. to consider potential foreign hardship when deciding whether to quash or stay a removal order made against a permanent resident? This Court has stated on numerous occasions that the preferred approach to statutory interpretation is that set out by E. A. Driedger in Construction of Statutes (2nd ed. 1983), at p. 87: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See also P.‑A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at pp. 287-94, and R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 131. The modern approach to statutory interpretation has been relied on by this Court in many areas, including the administrative law context. See, for example: Estey J. in Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, at p. 578 (taxation); Dickson C.J. in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134 (administrative); Iacobucci J. in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21 (employment); and McLachlin C.J. in R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33 (criminal).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-20", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 28–29", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the interpretive factors enumerated by Driedger need not be applied in a formulaic fashion, they provide a useful framework through which to approach this appeal, given that the sole issue is one of statutory interpretation. However, I note that these interpretive factors are closely related and interdependent. They therefore need not be canvassed separately in every case. 1. Grammatical and Ordinary Sense\n\nAn ordinary reading of “all the circumstances of the case” leads to a broad interpretation of s. 70(1)(b). The first consideration is that these words appear in a provision establishing a discretionary or equitable jurisdiction. The words do not provide detailed guidelines as to how this discretionary jurisdiction is to be exercised, but instead leave the scope of the discretion open-ended.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-21", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 30", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The second factor favouring a broad reading of s. 70(1)(b) is the grammatical sense of the phrase “all the circumstances of the case”. The word “all” is defined by the Concise Oxford Dictionary (8th ed. 1990), at p. 29, as “entire number of” or “greatest possible”. In this context, it would therefore mean considering the greatest possible number of factors relevant to the removal of a permanent resident from Canada. It is evident that one such factor is the conditions an individual would face upon removal. This is a natural consideration, because it is difficult to decide if it would be equitable to remove an individual from Canada without engaging in a comparative analysis of the conditions the individual would face if allowed to remain in the country and the conditions he or she would face if removed to a foreign state. For instance, an individual with two relatives in Canada but no relatives in the likely country of removal is in a different position from an individual with two relatives in Canada but an extensive family network in the likely country of removal. Similarly, an individual whose likely country of removal is at peace is in a different situation from an individual whose likely country of removal is in the midst of a civil war.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-22", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 31", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "That this is the natural way to read “all the circumstances of the case” is supported by Krishnapillai v. Canada (Minister of Citizenship and Immigration), [1997] I.A.D.D. No. 636 (QL), where the I.A.D. stated, at paras. 37-38: The statutory duty of the Appeal Division is to consider all of the circumstances of the case of a permanent resident. This is a mandate to consider the individual in the entirety of his or her context. The connections of that individual to Canada, and the hardship that individual would experience upon removal can not be fully appreciated by assessing the individual solely in terms of the connections that individual has to Canada and people living in Canada. To do so would be to abstract that individual from the connections which also link that individual to his or her country of origin, and which connections form part of the reality of every immigrant. The degree to which a permanent resident maintains a connection with his or her country of origin varies with the circumstances of the individual, and it is the extent of that connection which, quite properly, forms the basis of inquiry in literally every removal appeal before this Division.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-23", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 32–34", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "In addition, the inclusive nature of the word “all” suggests that realistic possibilities are just as relevant as certainties in making this discretionary decision. For instance, the likelihood that an individual will re-offend is an uncertain factor, but one that is commonly considered by the I.A.D. pursuant to s. 70(1)(b) when an individual is being removed as a result of a criminal conviction, as is the case in Al Sagban. This indicates that the I.A.D. should also be able to consider conditions in the likely country of removal, even when the ultimate country of removal is not known with absolute certainty at the time the s. 70(1)(b) appeal is heard.\n\nI therefore conclude that when the words of s. 70(1)(b) are read in their grammatical and ordinary sense, potential foreign hardship appears to be a relevant factor for the I.A.D. to consider. To conclude otherwise would be akin to reading this provision as entitling the I.A.D. to have regard to only some of the circumstances of the case. 2. Broader Context\n\nThe grammatical and ordinary sense of the words employed in s. 70(1)(b) is not determinative, however, as this Court has long rejected a literal approach to statutory interpretation. Instead, s. 70(1)(b) must be read in its entire context. This inquiry involves examining the history of the provision at issue, its place in the overall scheme of the Act, the object of the Act itself, and Parliament’s intent both in enacting the Act as a whole, and in enacting the particular provision at issue.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-24", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 35", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "When read in this way, I conclude that the I.A.D. is entitled to consider potential foreign hardship under s. 70(1)(b), provided that a likely country of removal has been established on a balance of probabilities by the permanent resident facing removal. This is a case where the ordinary reading of the statute is in harmony with legislative intent and with the scheme and object of the Act. I will now explore each of the relevant contextual factors supporting this conclusion, beginning with the history of s. 70(1)(b). (a) History of Section 70(1)(b)", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-25", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 36", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Individuals facing removal from Canada have long been able to appeal the removal order made against them. Citizenship and Immigration Canada reviewed the history of the appeal process in Building on a Strong Foundation for the 21st Century: New Directions for Immigration and Refugee Policy and Legislation (1998), at p. 52: Appeals were made directly to the Minister responsible for immigration until 1956, at which time an administrative agency, still subordinate to the Minister, was established. A combination of factors, including dissatisfaction with an appeal process that lacked independence, led to the creation, in 1967, of the [reconstituted] Immigration Appeal Board. See Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at pp. 739-42, and N. Kelley and M. Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy (1998), at pp. 368-69. The reconstituted I.A.B. was an administrative board independent of the Minister. Section 11 of the Immigration Appeal Board Act, S.C. 1966-67, c. 90, provided for appeals to the I.A.B. on any question of law or fact or mixed law and fact. Section 15 of this legislation conferred upon the I.A.B. the power to stay or quash a deportation order made against a permanent resident on the basis of “all the circumstances of the case”. As Kelley and Trebilcock point out, at pp. 368-69, the creation of this new power significantly changed the division of powers between the Minister and the administrative regime: The most important innovation in the new act was an extension of IAB powers to include areas of equitable jurisdiction.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-26", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 36–37", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "This new power allowed the IAB to consider humanitarian and compassionate arguments if the appellant was about to be deported under the strict terms of the Immigration Act. [Progressive Conservative M.P.] Richard Bell opposed placing such equitable powers in the hands of an administrative tribunal, preferring that the political arm of government continue to exercise it. However, as he himself acknowledged, his view was not one widely shared by his colleagues: ‘without question, sir, the majority opinion is against me.’ However, this new power remained subject to the discretion of the Minister and the Solicitor General, who were empowered under s. 21 of this legislation (ss. 81 through 82 of the present Act) to pre-empt an I.A.B. decision by certifying their opinion, based on security or criminal intelligence reports, that it would be contrary to the national interest to permit such relief. As an aside, I note that the right of appeal may also now be lost if the Minister is of the opinion that an individual constitutes a danger to the public in Canada: s. 70(5) of the present Act.\n\nThe Immigration Appeal Board Act was repealed in 1977 by the Immigration Act, 1976, S.C. 1976-77, c. 52. Section 72 of this new legislation consolidated the former ss. 11 and 15 into one section setting out two separate grounds of appeal. In Chiarelli, supra, Sopinka J. stated, for the Court, at p. 741, that these reforms: . . . did not change the nature of the decision that could be made by the Board “having regard to all the circumstances of the case”. That decision remained, as it had been under the 1967 Act, an exercise of discretion based on compassionate grounds.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-27", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 38", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appeals component of the I.A.B. later became the I.A.D., and s. 72 was later renumbered s. 70, but its wording has remained the same. What did change in 1977, however, was that the concept of domicile was removed from the Act. Prior to the 1977 reforms, permanent residents who had lived in Canada for five years acquired Canadian domicile and could not be removed from the country, absent exceptional circumstances: see Kelley and Trebilcock, supra, at p. 430. When questioned on the vulnerability of long-term permanent residents under the new approach, the Honourable Bud Cullen, Minister of Manpower and Immigration, responded that the new Act “permits removal of permanent residents only for very serious reasons and leaves ameliorating or compassionate factors such as length of residence in Canada to the discretion of the Immigration Appeal Board to which permanent residents have a right to appeal” (House of Commons Debates, July 22, 1977, at p. 7928). I note that no mention was made of relegating to the Minister the consideration of ameliorating or compassionate factors that involve foreign considerations.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-28", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 39", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Indeed, this Court has long approved of a broad approach to s. 70(1)(b) (or its predecessor legislation). Martland J. stated in Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, at p. 590 (dissenting, but not on this point) that, “[t]he intention of the Act was to enable the Board, in certain circumstances, to ameliorate the lot of an appellant against whom a deportation order had lawfully been made.” In the same case, Abbott J. stated, for the majority, at p. 581: This somewhat unusual section [s. 15, the provisions of which are now contained in ss. 70(1)(b) and 70(3)(b)] gives the Board broad discretionary powers to allow a person to remain in Canada who is inadmissible under the Immigration Act. Before the section was enacted, such power was vested solely in the executive branch of Government. Whether the discretion to be exercised by the Board under s. 15 be described as equitable, administrative or political, it is not in the strict sense a judicial discretion, but it would appear it should be exercised essentially upon humanitarian grounds. This view was confirmed by Sopinka J., for the Court, in Chiarelli, supra, at p. 737, where he stated that s. 70(1)(b) “allows for clemency from deportation on compassionate grounds”. In the I.R.B. publication, Removal Order Appeals (1999), at p. 9-2, it is stated that s. 70(1)(b) “contemplates the realization of a valid social objective, namely, relief from the hardship that may be caused by the pure operation of the law relating to removal”. I agree.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-29", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 40", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Employing such a broad approach to s. 70(1)(b), the I.A.D. itself has long considered foreign hardship to be an appropriate factor to take into account when dealing with appeals brought under this section. In Ribic, supra, at pp. 4-5, the I.A.B. summarized the relevant factors to be considered under its discretionary jurisdiction pursuant to what is now s. 70(1)(b) of the Act: In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada. These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order. The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality. While the general areas of review are similar in each case the facts are rarely, if ever, identical. [Emphasis added.] This list is illustrative, and not exhaustive. The weight to be accorded to any particular factor will vary according to the particular circumstances of a case. While the majority of these factors look to domestic considerations, the final factor includes consideration of potential foreign hardship.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-30", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 41", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The “Ribic factors” were applied by the I.A.D. for at least 15 years. In fact, the I.A.B. considered potential foreign hardship under s. 70(1)(b) as early as 1978: Moore v. Minister of Employment and Immigration, No. 78-3016, December 6, 1978. Prior to these appeals, the only other case in which the I.A.D. refused to consider potential foreign hardship when reviewing a removal order against a non-refugee permanent resident under its discretionary jurisdiction was El Tassi v. Canada (Minister of Citizenship and Immigration), [1996] I.A.D.D. No. 993 (QL). As in these appeals, this was the result of the panel interpreting Hoang, supra, as preventing them from doing so. The types of foreign hardship factors considered by the I.A.D. since the 1977 reforms have included language ability, family connections, availability of necessary medical care, and risk of physical harm. (b) The Scheme of the Act", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-31", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 42–43", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The arguments raised by both sides in this appeal primarily concern the proper role of s. 70(1)(b) appeals within the overall scheme of the Act. In addition, most of the concerns expressed by the Federal Court of Appeal with regard to allowing the I.A.D. to consider potential foreign hardship involved the appropriate place for foreign hardship to be considered within the scheme of the Act. The Minister argues that the I.A.D. cannot consider potential foreign hardship under s. 70(1)(b) because the Minister has not yet made her decision as to the country of removal under s. 52 at the time of the s. 70(1)(b) hearing. To conclude otherwise would allow the I.A.D. to interfere with the jurisdiction of the Minister to make that decision. The appellant, on the other hand, argues that a likely country of removal is almost always known at the time of the s. 70(1)(b) appeal (at least for permanent residents who are not refugees), and therefore can be considered at that time. Furthermore, the appellant submits, there is no other logical place in the Act under which potential foreign hardship can be considered if it is not considered under s. 70(1)(b).\n\nI will therefore examine the scheme of the Act to explain, in part, why I have concluded that the appellant’s position is the correct one. The relevant provisions are those concerned with the way in which permanent residents can be lawfully removed from Canada, and the various avenues of redress available to permanent residents to contest a removal order. (i) General Provisions with Respect to Removal of Permanent Residents", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-32", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 44–45", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The scheme of the Act with regard to the removal of permanent residents is relatively straightforward, although there are some complexities in more unusual circumstances. Once lawfully admitted to Canada, permanent residents are removable only if they are a person described in s. 27(1) of the Act. Grounds for removal set out in s. 27(1) include obtaining landing by virtue of fraud or misrepresentation of a material fact (s. 27(1)(e)), the applicable ground in this case, and conviction of an offence for which a term of more than six months’ imprisonment has been imposed, or where a term of imprisonment of five years or more may be imposed (s. 27(1)(d)), the applicable ground in Al Sagban.\n\nPermanent residents have the right to appeal a removal order to the I.A.D. pursuant to s. 70(1), on either legal grounds (s. 70(1)(a)) or discretionary grounds (s. 70(1)(b)), unless they are designated as a “danger to the public” under s. 70(5) or as a security risk under s. 81. It is important to note that when such an appeal is brought, the execution of the removal order is automatically stayed by s. 49 of the Act until the appeal has been disposed of by the I.A.D. and any judicial review proceedings have come to an end. As I will discuss below, this is not the situation when an individual is seeking the judicial review of a decision by the Minister. In such instances, a stay of the removal order is at the discretion of the Federal Court.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-33", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 46", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Parliament has structured the I.A.D. to provide robust procedural guarantees to individuals who come before it and to provide a significant degree of administrative flexibility to I.A.D. board members and staff. The I.A.D. is a court of record (s. 69.4(1)) with broad powers to summons and examine witnesses, order the production of documents, and enforce its orders (s. 69.4(3)). A removal order appeal is essentially a hearing de novo, as evidence can be received that was not available at the time the removal order was made. The I.A.D. has liberal rules of evidence, and may “receive such additional evidence as it may consider credible or trustworthy and necessary for dealing with the subject-matter before it” (s. 69.4(3)(c)). Written reasons must be provided for the disposition of an appeal under ss. 70 or 71 when such reasons are requested by either of the parties to the appeal (s. 69.4(5)). As with the statutory stay, Parliament has not provided similar procedural guarantees for decisions by the Minister.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-34", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 47–48", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Furthermore, the remedial powers of the I.A.D. are very flexible. Pursuant to s. 73(1) of the Act, the I.A.D. can dispose of an appeal made pursuant to s. 70 in three ways: by allowing it; by dismissing it; or, if exercising its equitable jurisdiction under ss. 70(1)(b) or 70(3)(b), by directing that execution of the order be stayed. When a removal order is quashed, the I.A.D. has the power to make any other removal order or conditional removal order that should have been made (s. 74(1)). When a removal order is stayed, the I.A.D. may impose any terms and conditions it deems appropriate, and review the case from time to time as it considers necessary (s. 74(2)). Stays may be cancelled or amended by the I.A.D. at any time (s. 74(3)). When a stay is cancelled, the appeal must be either dismissed or allowed, although the I.A.D. retains its powers under s. 74(1) to substitute a different removal order.\n\nThe I.A.D. can also reopen an appeal prior to execution of the removal order and, if appropriate, exercise its discretion in another way. As a result, this Court has stated that the I.A.D.’s discretionary jurisdiction is ongoing: Grillas, supra, at p. 582, per Abbott J., and at p. 590, per Martland J. As Lorne Waldman states, in Immigration Law and Practice (loose-leaf ed.), at § 10.133.7: It is trite law that the Appeal Division has ongoing jurisdiction over the appellant up to and until the time that the removal order is executed. In such circumstances, there would appear to be no reason for concluding that the Appeal Division could [not] consider subsequently whether or not to reopen an appeal to consider issues related to the impact of removal to a specific country on the appellant.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-35", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 49–50", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is within this general scheme that the alternative suggestions made by the Minister as to where foreign hardship should be considered must be evaluated. Essentially, the Minister submits that the scheme of the Act favours considering foreign hardship by seeking judicial review of the Minister’s decision as to the country of removal, made under s. 52 of the Act, or by seeking a Minister’s permit under s. 114(2) of the Act to exempt the individual from removal due to foreign hardship concerns. In either of these ways, foreign hardship can be considered after the Minister has made her decision regarding the country of removal.\n\nIn my opinion, these alternative avenues of redress are not the ideal way for foreign hardship concerns to be taken into account. They need be resorted to only in cases where the I.A.D. cannot consider potential foreign hardship — either because a likely country of removal has not been established, because the I.A.D. has lost jurisdiction (i.e. pursuant to ss. 70(5) or 81 of the Act), or because the country of removal changed after the s. 70(1)(b) appeal hearing. Furthermore, I do not believe that allowing the I.A.D. to take foreign hardship into account under s. 70(1)(b) interferes with the Minister’s jurisdiction under s. 52, with regard to the selection of the country of removal. I will now explain why I have reached these conclusions. (ii) Section 52 of the Act", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-36", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 51–52", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 52 of the Act controls the country of removal, which can be selected by the individual being removed, subject to the Minister’s approval, or by the Minister, which is the usual occurrence. In practice, the Minister usually makes the s. 52 decision by having an enforcement officer book travel arrangements for the individual being removed. There is no other administrative procedure in place by which a s. 52 decision is made, or by which a s. 52 decision can be contested by the individual being removed, beyond seeking judicial review of the Minister’s decision. I note, however, that the judicial review of a s. 52 decision is very limited in scope: Arduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468 (T.D.).\n\nWhen a removal order is made, the traditional practice is that a decision regarding the country of removal is made by the Minister pursuant to s. 52 of the Act after the I.A.D. has dismissed an appeal. However, as was conceded by the Minister in oral argument, there is no statutory requirement that this be the case. The Minister can select the country of removal at any time after “an exclusion order or a deportation order is made” (s. 52(1)). The only legislative direction with regard to timing is contained in s. 48 of the Act, which instructs the Minister to execute a removal order “as soon as reasonably practicable” after it is made, or after any stays have been lifted. But s. 48 deals only with the timing of the execution of removal orders, not the selection of a country of removal. If the Minister is concerned about maintaining the ability to exercise her jurisdiction to decide the country of removal in every case, she is free to make the s. 52 decision prior to the I.A.D. hearing.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-37", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 53", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "In any event, there is no legal impediment to the Minister making a submission to the I.A.D. at the time of the appeal regarding the likely country of removal. The Minister is always a party to an appeal under s. 70(1)(b). The intervener I.R.B. points out that the Minister has made such submissions on many occasions in the past. In addition, the country of removal for a permanent resident who is not a refugee will rarely be one other than the individual’s country of nationality or citizenship. Counsel for the appellant and for the intervener I.R.B. argued that, when the appeal involves a non-refugee, approximately 90 percent of the time the country of removal is known at the time the s. 70(1)(b) appeal is heard. The Minister conceded in oral argument that the correct figure was “a very high percentage”. That this is the case is not surprising, given that the only country usually willing to take an individual being removed is the country that is legally obliged to take them — that of which the individual is a national or citizen: see Reed J.’s decision in Al Sagban v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 501 (T.D.), at p. 506.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-38", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 54", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "This explains why the option of voluntary departure under s. 52 will not be realistic for many individuals facing removal. Voluntary departure is dependent on an individual finding a suitable country willing to accept him or her. When an individual has criminal convictions, this will be particularly difficult. As Waldman points out, supra, at §10.133.4, “this remedy will, in most cases, be more apparent than real, because it will usually be extremely difficult for a person who has been ordered deported from Canada to gain admission to any country other than the country of his or her nationality”. I point this out for two reasons. First, to illustrate that voluntary departure will not usually be an option available to a permanent resident facing removal who has foreign hardship concerns. And second, to further confirm that the likely country of removal will usually be known at the time the s. 70(1)(b) appeal is heard.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-39", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 55", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "I also do not believe that allowing the I.A.D. to take foreign hardship into account under s. 70(1)(b) interferes with the Minister’s jurisdiction to decide the country of removal. If the I.A.D. decides to quash or stay a removal order, it does not interfere with the Minister’s jurisdiction under s. 52, because there is no longer a removal order in place for which a s. 52 decision needs to be made. In other words, the Minister’s jurisdiction to decide the country of removal becomes inoperative when a removal order is quashed or stayed, as there is no longer anyone to remove. While the Act does not prevent the Minister from making the s. 52 decision prior to the hearing of the s. 70(1)(b) appeal, if the Minister decides to wait until after the hearing to make a decision under s. 52, she runs the risk of losing jurisdiction to make that decision because there will no longer be anyone to remove. In my opinion, this was the intended scheme of the Act. I therefore see no reason why s. 52 should prevent the I.A.D. from considering foreign hardship in the likely country of removal when hearing an appeal under s. 70(1)(b).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-40", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 56", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Before turning to the Minister’s arguments with respect to s. 114(2), I wish to add some brief comments regarding the correct procedure to be followed during a s. 70(1)(b) appeal. First, the onus is on a permanent resident facing removal to establish the likely country of removal, on a balance of probabilities. It is only in those cases where the Minister disagrees with an individual’s submissions as to the likely country of removal that the Minister would need to make submissions as to why some other country is the likely country of removal, or as to why a likely country of removal cannot yet be determined. This would be the case, for instance, where the Minister is involved in negotiations with a country other than an individual’s country of nationality or citizenship with regard to accepting that individual.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-41", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 57", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, in appeals under the I.A.D.’s discretionary jurisdiction, the onus has always been on the individual facing removal to establish why he or she should be allowed to remain in Canada. If the onus is not met, the default position is removal. Non-citizens do not have a right to enter or remain in Canada: Chiarelli, supra, at p. 733, per Sopinka J. See also Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 189, per Wilson J.; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 834, per La Forest J.; and Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1070. In general, immigration is a privilege not a right, although refugees are protected by the guarantees provided by the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, entered into force April 22, 1954, entered into force for Canada September 2, 1969 (the “1951 Geneva Convention”), and the Protocol relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967, entered into force in Canada June 4, 1969. As Martland J. stated for this Court in Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, at p. 380, a removal order “establishes that, in the absence of some special privilege existing, [an individual subject to a lawful removal order] has no right whatever to remain in Canada. [An individual appealing a lawful removal order] does not, therefore, attempt to assert a right, but, rather, attempts to obtain a discretionary privilege”.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-42", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 58", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, I note that the likely country of removal will often not be ascertainable for Convention refugees because s. 53 of the Act prohibits their removal “to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion”, unless the individual falls within particular enumerated classes and the Minister is of the opinion that the individual constitutes a danger to the public in Canada (s. 53(1)(a), (c) and (d)) or a danger to the security of Canada (s. 53(1)(b)). Section 53 implements Canada’s international commitment under Article 33 of the 1951 Geneva Convention to protect against refoulement, the principle of international law which requires that no state shall return a refugee to a country where his or her life or freedom may be endangered, except where a refugee is a danger to national security or a danger to the community in the host state. As a result, most Convention refugees cannot be removed to their country of nationality or citizenship, but often no other country will be obliged or willing to accept them. In such cases, there will be no likely country of removal at the time of the appeal and the I.A.D. cannot therefore consider foreign hardship.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-43", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 59", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "In contrast, permanent residents who are not Convention refugees have no explicit statutory protection against removal to a state where they believe their life or freedom would be threatened (although they have Charter protections against return to certain conditions: see Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1). This illustrates that there is no need to have absolute consistency between how permanent residents who are not refugees are dealt with under the Act and how Convention refugees are dealt with. In fact, the Act treats citizens differently from permanent residents, who in turn are treated differently from Convention refugees, who are treated differently from individuals holding visas and from illegal residents. It is an important aspect of the statutory scheme that these different categories of individuals are treated differently, with appropriate adjustments to the varying rights and contexts of individuals in these groups. I need only point out that permanent residents have rights under both the Charter and the Act that other non-citizens do not, including mobility rights under s. 6(2) of the Charter and the right to sponsor individuals to come to Canada under s. 6(2) of the Act. (iii) Section 114(2) of the Act", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-44", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 60", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "This brings us to the Minister’s argument that foreign hardship is more appropriately considered under an application for a Minister’s permit under s. 114(2), which would be made after the s. 52 decision as to the country of removal has been made. I disagree with this position, at least in those cases where a likely country of removal can be established before the I.A.D. For ease of reference, s. 114(2) is repeated here: 114. . . . (2) [Exemption from regulations] The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. First, I note that this provision is generally used by the Minister to facilitate entry to Canada, not to prevent removal from Canada. As L’Heureux-Dubé J. stated for a majority of this Court in Baker, supra, at para. 1: Regulations made pursuant to s. 114(2) of the Immigration Act, R.S.C., 1985, c. I-2, empower the respondent Minister to facilitate the admission to Canada of a person where the Minister is satisfied, owing to humanitarian and compassionate considerations, that admission should be facilitated or an exemption from the regulations made under the Act should be granted. [Emphasis added.]", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-45", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 61", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "A waiver granted under s. 114(2) is referred to as a Minister’s permit. Although a decision under s. 114(2) is officially made by the Minister, in practice, and like a ministerial decision under s. 52 of the Act, the decision is dealt with in the name of the Minister by immigration officers: see Baker, at para. 15, and Minister of Employment and Immigration v. Jiminez-Perez, [1984] 2 S.C.R. 565, at p. 569. Most commonly, s. 114(2) is used to exempt persons already in Canada who wish to apply for landing from within the country and therefore must obtain a waiver from the normal requirement to obtain an immigrant visa outside Canada. This was the situation applicable to Mavis Baker in Baker, supra. Ms. Baker lived illegally in Canada for 11 years as a domestic worker before a removal order was made against her. She then applied to the Minister for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate considerations, pursuant to s. 114(2) of the Act. As the intervener I.R.B. points out, s. 114(2) must be relied on by illegal residents who wish to remain in Canada when a removal order has been made against them because such individuals do not have a right to appeal to the I.A.D. Essentially, s. 114(2) is the only recourse provided by the Act for such individuals.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-46", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 62", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, the Minister argues in this appeal that s. 114(2) can also be used by permanent residents who have recently lost their permanent resident status pursuant to s. 24(1)(b) of the Act as a result of the I.A.D. upholding a removal order made against them. The argument is that such individuals could then apply to be “reinstated” as permanent residents by the Minister based on humanitarian and compassionate considerations. In this way, potential foreign hardship would be considered by the Minister under s. 114(2) after the s. 52 decision as to country of removal has been made, rather than by the I.A.D. under s. 70(1)(b) prior to the s. 52 decision. Linden J.A. accepted this argument in the court below.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-47", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 63", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "But as Waldman, supra, asks at § 10.133.3: Can a person who has been admitted to Canada as a permanent resident and who has had that status removed as a result of ministerial action, but who has not yet been deported from Canada, seek to be granted the very status which has so recently been removed from him or her? Can a permanent resident under a deportation order seek and be granted landing prior to the deportation order being executed? In my opinion, this was not the intended role of s. 114(2) within the scheme of the Act, at least as a matter of general recourse. The scheme of the Act does not support the view that a s. 114(2) application could be made by every individual being removed from Canada. Instead, the Act provides for the I.A.D. to deal with the majority of issues surrounding the removal of individuals from Canada, absent the I.A.D. losing jurisdiction because an individual has been determined to be a danger to the public or a threat to national security. Without foreclosing the operation of s. 114(2) in other circumstances, I conclude that there is no need to resort to it in this case. Provided a permanent resident is able to establish a likely country of removal during the s. 70(1)(b) appeal, the I.A.D. should be able to consider potential foreign hardship when deciding whether to quash or stay the removal order.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-48", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 64", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "To summarize, the scheme of the Act reveals that an appeal to the I.A.D. under s. 70(1)(b) is the most appropriate place for a permanent resident facing removal from Canada to have foreign hardship taken into account. A harmonious reading of the scheme of the Act reveals that all relevant considerations should be considered by the I.A.D. whenever possible. It is only when it is not possible for the I.A.D. to consider potential foreign hardship that other provisions of the Act need be resorted to. These alternative provisions are not as robust as a hearing before the I.A.D. The judicial review of a s. 52 decision provides only narrow grounds for review, and an application to the Minister under s. 114(2) is essentially a plea to the executive branch for special consideration which is not even explicitly envisioned by the Act. Furthermore, the Act does not provide an automatic stay of the removal order when either of these alternative routes is pursued, as it does for appeals before the I.A.D. For all of these reasons, the scheme of the Act favours allowing the I.A.D., a specialized tribunal with ample procedural protections, to take foreign hardship factors into account whenever a likely country of removal has been established. 3. Object and Intention", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-49", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 65–66", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Turning to object and intention, I conclude that both the object of the Act and the intention of Parliament support such a reading of s. 70(1)(b). The object of the Act is to create a comprehensive administrative scheme to deal with immigration issues in Canada. Under this administrative scheme, Parliament has given certain powers to the I.R.B. and certain powers to the Minister, with a limited supervisory role to be played by the courts. The role of this Court in this appeal is to ensure that Parliament’s intended division of powers is respected, in accordance with the controlling legislation.\n\nParliament intended the I.A.D. to have a broad discretion to allow permanent residents facing removal to remain in Canada if it would be equitable to do so. This is apparent from the open-ended wording of s. 70(1)(b), which does not enumerate any specific factors to be considered by the I.A.D. when exercising its discretion under this provision. The ability to quash or stay removal orders based on ameliorating or compassionate factors was granted to the I.A.D. partially as a result of the removal of the domicile provisions from the Act in 1977. The object of s. 70(1)(b) is to give the I.A.D. the discretion to determine whether a permanent resident should be removed from Canada. This is, admittedly, an unusual provision in that it gives the I.A.D. considerable discretionary power in dealing with the removal of permanent residents. But granting this discretionary power was a decision of Parliament. If Parliament is now concerned that such a broad grant of administrative discretion has been made, it is open to Parliament to amend the legislation.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-50", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 67–68", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "It would be inconsistent with these objectives for this Court to narrow the I.A.D.’s discretionary jurisdiction under s. 70(1)(b), and thereby leave foreign hardship concerns to be considered only by the Minister under s. 52 or a s. 114(2) application, or by the courts on either an application for judicial review of a s. 52 or s. 114(2) decision or an independent Charter action. Such a bifurcation of the administrative process was not envisioned by Parliament, as evidenced by the absence of procedural provisions and statutory stays for such proceedings, and would result in unnecessary complexity and confusion in the administrative scheme. One of the objects of the Act is to streamline immigration proceedings in Canada, while providing full protection for Charter and common law rights.\n\nIn Building on a Strong Foundation for the 21st Century: New Directions for Immigration and Refugee Policy and Legislation, supra, the Minister expressed a commitment to reduce delays and “multiple decision layers” in the immigration appeal system (p. 52). I therefore believe that it is consistent with the object of the Act to avoid the bifurcation of the removal appeal process whenever possible. Bifurcation need be resorted to only in those cases where the I.A.D. is unable to consider potential foreign hardship. As a matter of policy and statutory design, the bifurcation in such cases will not be ideal. However, such shortcomings are not for this Court to remedy, absent the establishment of an unjustifiable Charter violation, which has not been argued in this case.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-51", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 69", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Parliament has equipped the I.A.D. with all of the tools necessary to ensure that the requirements of natural justice are met when removing individuals from Canada, including providing for an oral hearing, the calling and cross-examination of witnesses, the tendering of evidence, the giving of reasons (when requested), and a right to seek judicial review of the I.A.D.’s decision (during which time the statutory stay of the removal order is in place). That these procedures are designed to meet the requirements of natural justice can be inferred from Wilson J.’s statement in Singh, supra, at p. 199, that a hearing before the I.A.B., the I.A.D.’s predecessor, is “a quasi‑judicial one to which full natural justice would apply”. These procedures help ensure that any relevant Charter rights will be respected. Parliament did not give the Minister similar tools for making ss. 52 or 114(2) decisions, where no oral hearing is required, no witnesses can be called, and a statutory stay is not provided either pending the decision or if judicial review is sought.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-52", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 70", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "As Cory J. stated, in dissent, in Pushpanathan, supra, at para. 157, when an individual faces removal from Canada: . . . it would be unthinkable if there were not a fair hearing before an impartial arbiter to determine whether there are “substantial grounds for believing” that the individual to be deported would face a risk of torture, arbitrary execution, disappearance or other such serious violation of human rights. In light of the grave consequences of deportation in such a case, there must be an opportunity for a hearing before the individual is deported, and the hearing must comply with all of the principles of natural justice. As well, the individual in question ought to be entitled to have the decision reviewed to ensure that it did indeed comply with those principles. The protections provided in relation to a s. 70(1)(b) appeal to the I.A.D. satisfy these requirements. While the Minister’s decisions under ss. 52 and 114(2) may well accord with the requirements of natural justice in most cases, I am concerned that this will not always be the case. Baker, supra, is one example of an instance where the Minister’s decision was procedurally deficient. It fell to this Court to clarify that the principles of natural justice guarantee certain rights to individuals who make a s. 114(2) application, including a right to make written submissions to the Minister’s delegate who actually makes the decision, a right to receive brief reasons for the decision, and a right to an unbiased decision maker. However, it is clear that the procedural protections required may vary with the context of the case: Singh, supra, at p. 213, per Wilson J.; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361, per La Forest J.; Syndicat des employés de production du Québec et de l’Acadie v.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-53", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 70–71", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895‑96, per Sopinka J.; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, per L’Heureux‑Dubé J.; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at p. 882; and Dehghani, supra, at p. 1076.\n\nWhen faced with the problem of a statute which can be read in two ways, one that accords with the principles of natural justice and one that does not, this Court has consistently adopted the interpretation that favours a fuller assurance that the requirements of natural justice will be met: Alliance des professeurs catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140, at p. 166, per Fauteux J.; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, at p. 328, per Laskin C.J.; and Singh, supra, at p. 200, per Wilson J. Therefore, for the purposes of this appeal, a reading of the Act which allows permanent residents to have foreign hardship considered by the I.A.D., where a likely country of removal has been established, is preferable. C. Precedent", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-54", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 72", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Given the way the issue involved in this appeal arose, I wish to briefly review the cases relied on by the Federal Court to conclude that the I.A.D. cannot consider potential foreign hardship on an appeal under s. 70(1)(b). The debate surrounding the jurisdiction of the I.A.D. developed essentially because the factors stated by the I.A.B. in Ribic, supra, as being relevant to an appeal under s. 70(1)(b) were revisited by the Federal Court of Appeal beginning with Hoang, supra. This was a somewhat surprising development, given that the Ribic factors were applied for many years by the I.A.D. without objection by the Minister. All indications are that the system worked rather well.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-55", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 73", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The confusion that has now arisen appears to have its genesis in the decision of the I.A.B. in Markl v. Minister of Employment and Immigration, No. V81-6127, May 27, 1985, which was relied on in Hoang, supra, and consequently was also considered by the courts below in this case and in Al Sagban, supra. Markl was both a permanent resident and a Convention refugee. A removal order was made against him as the result of a series of criminal offences. Although a Convention refugee, Markl could have been removed to his country of nationality because his offence was sufficiently serious to bring him within the exception in s. 55(c) of the Act (now s. 53(1)). This provision allows Convention refugees who have committed a serious offence to be removed to a country where they may face persecution. The policy of the Canadian government at the time, however, was not to deport people to Czechoslovakia, Markl’s country of nationality. The I.A.B. was therefore in the unusual position of knowing the likely country of removal but also knowing that Markl would not be deported there at that time. However, the I.A.B. declined to take judicial notice of the government policy in question because such policies change from time to time. As a result, it took into account the conditions Markl would face in Czechoslovakia in making its discretionary decision under s. 70(1)(b) — the fact that his parents were still there, that he spoke the language and had lived there until he was 18, and the fact that he would be jailed for 18 months for deserting if he was returned to Czechoslovakia. Weighing these factors along with the relevant domestic ones, it declined to exercise its discretionary jurisdiction in favour of allowing Markl to remain in the country.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-56", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 74", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "It was in this context that the I.A.B. stated, at p. 5: The Board is seized with an appeal from a deportation order. It has to rule on the validity of this order. Should the appeal fail, the issue of to where the appellant may be deported is a separate one; one over which the Board has no jurisdiction. [Emphasis added.] However, this passage simply clarifies that once the I.A.D. upholds a removal order, the issue of where the individual will be removed to is a matter for the Minister. If the Minister has a policy not to remove to a particular country, then the removal may be delayed. This passage is not authority for the proposition that the I.A.D. can never consider potential foreign hardship. In fact, it stands for just the opposite, as the I.A.B. was considering factors related to Czechoslovakia in deciding whether or not to deport Markl. Unfortunately, this was not the interpretation given to Markl when Hoang was decided.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-57", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 75", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "When Hoang v. Canada (Minister of Employment and Immigration) was before the I.A.B., [1987] I.A.B.D. No. 6 (QL), the majority incorrectly relied on Markl as authority for the I.A.B. not being able to consider potential foreign hardship. Board Member Townshend dissented, stating, at para. 32: . . . certainly, the Board has no jurisdiction to tell or not to tell the Minister to which country he should or can deport a permanent resident. But I cannot agree that Markl stands for the proposition that the prospective removal of a Convention refugee to the very country from which he has escaped persecution is not one of the circumstances which the Board is entitled to consider under paragraph 72(1)(b) [now s. 70(1)(b)] which requires the Board to consider “all the circumstances of the case.” With the greatest of respect for the opposite view, Board Member Townshend was correct. The I.A.D. cannot make a decision as to the country of removal, because this decision is reserved to the Minister under s. 52. But when there is a likely country of removal, the I.A.D. can consider potential foreign hardship when exercising its discretionary jurisdiction.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-58", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 76", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Hoang, like Markl, was both a refugee and a permanent resident and had committed a sufficiently serious offence to be returned to a country where he feared persecution (under the exception in s. 55(c), now s. 53(1), of the Act). Vietnam was the likely country of removal. The Minister made a submission in this regard at the hearing of the s. 70(1)(b) appeal. While it may not have changed the outcome of the appeal, the hardship Hoang would face in Vietnam should have been considered. With respect, I believe that the Federal Court of Appeal erred in concluding that the I.A.B. was correct in refusing to consider potential foreign hardship. MacGuigan J.A. stated, for the court, at para. 8, “that the Board’s jurisdiction is only over whether a person should be removed from Canada, not as to the country of removal”. This is true, but the decision of whether an individual should be removed can be informed by considerations of potential foreign hardship when the likely country of removal has been established.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-59", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 77–78", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my opinion, neither Markl nor Hoang establishes a blanket prohibition against the I.A.D. considering potential foreign hardship. I agree with Reed J.’s interpretation of these cases in Al Sagban, at p. 509: The focus of this comment [about Markl, by MacGuigan J.A. in Hoang] appears to have been on whether or not the Board had jurisdiction to determine the country of destination for the applicant in this type of case. There is no express statement that the Board is not entitled to assess the harm that would befall an applicant in his country of origin if he were returned there. I consider this issue to be unresolved. As a result of this appeal, this issue is now resolved: the I.A.D. can consider potential foreign hardship under s. 70(1)(b) when the likely country of removal has been established by an individual facing removal. The approach set out by the I.A.B. in Ribic, supra, remains sound.\n\nAlthough Linden J.A. was correct in noting, at p. 612, that “[c]onsistency is a virtue” in dealing with ss. 52 and 70(1) of the Act, the consistency to be achieved is not that the I.A.D. can never consider potential foreign hardship under its discretionary jurisdiction but that it can do so only when a likely country of removal has been established. In the case of Convention refugees, it is less likely that a country of removal will be ascertainable. But permanent residents who are not Convention refugees will usually be able to establish a likely country of removal, thereby permitting the I.A.D. to consider any potential foreign hardship they will face upon removal to that country.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-60", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 79–80", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "I also wish to clarify any confusion that has arisen over MacGuigan J.A.’s statement in Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (C.A.), at p. 286, for the court, that a discretionary decision under s. 70(1)(b) requires the consideration of “every extenuating circumstance that can be adduced in favour of the deportee”. The Federal Court of Appeal erred in the case at bar in concluding that Canepa was not applicable because “there was no discussion of the conditions in the country to which the appellant would be deported” (para. 22). In fact, the I.A.D. had examined the potential hardship Canepa would face in the likely country of removal, as excerpted by MacGuigan J.A. at p. 284: Although he has no close relatives in Italy he is a toughened street-wise twenty-six-year-old adult who is in no different a predicament than many immigrants are when they emigrate to Canada. Although he is not now fluent in Italian, he has resided in a family setting where Italian is spoken and he ought to be able to achieve reasonable facility in that language soon after his return to Italy. The instruction to the I.A.D. to consider every extenuating circumstance is sound. Those circumstances may, in appropriate cases, include potential foreign hardship. D. Policy Concerns\n\nI also wish to address briefly the concerns expressed by the Federal Court of Appeal with respect to allowing the I.A.D. to consider potential foreign hardship. 1. Prolonging Hearings", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-61", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 81–82", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The I.A.D. has considered the potential foreign hardship an individual would face upon removal for well over a decade, following Ribic, supra. There is no evidence that this consideration prolonged hearings before the I.A.D. by any significant extent. The intervener I.R.B. supports this view. Many of the witnesses called to speak about an individual’s situation in Canada will also be able to speak to the situation the individual will face in the likely country of removal, particularly family members. Furthermore, the likely country of deportation will rarely be in dispute. When the country of removal is in dispute, the issue can be quickly decided following submissions from the individual facing removal and the Minister. 2. The I.A.D. is not Designed nor Equipped\n\nHearings before the I.A.D. are adversarial in nature, unlike those before the C.R.D.D., which are more inquisitorial in nature. Evidence regarding potential foreign hardship can be adduced before the I.A.D. on a similar basis to establishing a fact in any other adversarial proceeding. Witnesses can be called, and written evidence can be submitted. Unlike the C.R.D.D., where staff research country conditions, the parties are responsible for researching and supplying this evidence before the I.A.D. The Minister is entitled to disclosure of all documents relied on by an individual appealing a removal order, and can have the documents verified prior to the hearing or can challenge their validity at the hearing by way of evidence, cross-examination or argument. In any event, much of the relevant evidence regarding potential foreign hardship will relate to personal concerns, such as language ability, family connections, and availability of necessary health care, which can all be readily established before the I.A.D.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-62", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 83", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "The intervener I.R.B., at para. 41 of its written submissions to this Court, confirms that it is designed and equipped to consider such matters, and has done so for two decades: For almost 20 years, the I.A.D. and its predecessor tribunal have operated within this statutory scheme and have effectively provided a full oral hearing and consideration of all the circumstances of the case, including circumstances in the likely country of removal. I therefore have little hesitation in concluding that the I.A.D. is designed and equipped to consider potential foreign hardship. While it is undoubtedly designed differently than the C.R.D.D., there is no reason to believe that the I.A.D. is an unsuitable forum to consider foreign hardship concerns. 3. An Alternative Refugee System", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-63", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 84", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Only the C.R.D.D. has the jurisdiction to determine that an individual is a Convention refugee. The I.A.D. cannot make such a finding, nor does it do so when it exercises its discretion to allow a permanent resident facing removal to remain in Canada. When exercising its discretionary jurisdiction, the I.A.D. does not directly apply the 1951 Geneva Convention, which protects individuals against persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Instead, the I.A.D. considers a broader range of factors, many of which are closely related to the individual being removed, such as considerations relating to language, family, health, and children. Even when examining country conditions, the I.A.D. can consider factors, such as famine, that are not considered by the C.R.D.D. when determining if an individual is a Convention refugee. These foreign concerns are weighed against the relevant domestic considerations in making the final decision as to the proper exercise of the I.A.D.’s discretion. As a result of this broad-based balancing exercise, the protections offered to non-refugee permanent residents are of a different nature than those provided to Convention refugees. In this respect, I reiterate that it is only refugees who are protected from refoulement, as guaranteed by Article 33 of the 1951 Geneva Convention (enacted into Canadian law by s. 53 of the Act).", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-64", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "para 85", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "If a permanent resident has a refugee claim before the C.R.D.D. at the same time that he or she is appealing a removal order to the I.A.D., the I.A.D. holds the appeal in abeyance until the C.R.D.D. has determined the refugee claim. As the intervener I.R.B. submits at para. 34 of its factum: This sequencing of cases enables the C.R.D.D. to determine if the person is a Convention refugee. The I.A.D. can then consider this decision as one of the many factors in assessing “all the circumstances of the case”. This procedure respects the separation of the adjudicative functions of the two Divisions and the exclusive jurisdiction of the C.R.D.D. to determine Convention refugee status. I agree. Furthermore, I do not believe that the I.A.D. is attempting to do indirectly what it cannot do directly by considering foreign hardship when hearing a s. 70(1)(b) appeal. If the Minister is concerned that the I.A.D. will quash or stay a removal order based on foreign hardship concerns, the Minister is free to make a submission at the s. 70(1)(b) appeal hearing that the individual will be removed to a country other than the one in which hardship concerns have been raised. For individuals who have committed sufficiently serious offences, the Minister can also remove their right of appeal to the I.A.D. under s. 70(5) of the Act.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-65", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 86–87", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "I therefore cannot agree that the I.A.D. is creating an alternative refugee system when it allows permanent residents to remain in Canada because of foreign hardship concerns. Parliament gave the I.A.D. the wide jurisdiction to make such discretionary decisions, and the factors weighed by the I.A.D. in exercising this discretion are very different than those considered by the C.R.D.D. when determining whether an individual is a Convention refugee. 4. The Checks and Balances of Sections 69.2 and 44(1) of the Act\n\nSection 69.2 of the Act allows the government to attempt to strip a Convention refugee of his or her status. As just noted, s. 44(1) prevents a refugee claim from being made by any person in Canada against whom a removal order has been entered. While Linden J.A. is correct in identifying these provisions as providing checks and balances for Canada’s refugee system, their presence indicates little about Parliament’s intent in dealing with non-refugee permanent residents. Parliament could just as easily enact a provision establishing a process to strip permanent residents of their status. However, Parliament chose to leave such considerations to the I.A.D., at least for those individuals who have not lost their ability to appeal to the I.A.D. (i.e. pursuant to ss. 70(5) or 81(6) of the Act). To reiterate, there is no need for absolute consistency in how the Act deals with Convention refugees and non-refugee permanent residents. Furthermore, Parliament has provided a balancing mechanism applicable to permanent residents in allowing the I.A.D. to stay a removal order, to which conditions can be attached and which can be reviewed when necessary (s. 74). E. Application to the Facts of the Case at Bar", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-66", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 88–89", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "Applying these holdings to the case at bar, it is apparent that the likely country of removal had not been established before the I.A.D. The appellant has a wife and child in Vietnam, but is a national of Cambodia. The I.A.D. did not determine whether the appellant had successfully established Cambodia as the likely country of removal. Indeed, it appears that Vietnam was given greater consideration by Board Member Wiebe. However, the appellant submits that Vietnam is not obliged to accept him, as he is not a national of Vietnam, and therefore that Vietnam cannot be the likely country of removal. This critical issue was not resolved by the I.A.D.\n\nAs a result, this case must be returned to the I.A.D. for a rehearing. If the appellant establishes a likely country of removal at that time, the I.A.D. can consider the potential foreign hardship the appellant will face in that country in exercising its discretionary jurisdiction under s. 70(1)(b). VII. Summary and Conclusion", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-1940-67", - "doc_type": "caselaw", - "act_code": "2002 SCC 3", - "act_short": "Chieu", - "act_name": "Chieu v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3", - "marginal_note": "paras 90–91", - "heading": "Immigration Appeal Division appeals from a removal order; foreign hardship is a relevant consideration", - "part": "Supreme Court of Canada", - "division": "", - "text": "For these reasons, the I.A.D. is entitled to consider potential foreign hardship when exercising its discretionary jurisdiction under s. 70(1)(b) of the Act, provided that the likely country of removal has been established by the individual being removed on a balance of probabilities. The Minister should facilitate the determination of the likely country of removal before the I.A.D. whenever possible, as this improves the efficient functioning of the Act. The factors set out in Ribic, supra, remain the proper ones for the I.A.D. to consider during an appeal under s. 70(1)(b). On such an appeal, the onus is on the individual facing removal to establish exceptional reasons as to why they should be allowed to remain in Canada. As the I.A.B. stated in Grewal v. Canada (Minister of Employment and Immigration), [1989] I.A.D.D. No. 22 (QL), the making of such a discretionary decision involves “the exercising of a special or extraordinary power which must be applied objectively, dispassionately and in a bona fide manner after carefully considering relevant factors” (p. 2).\n\nIn the instant case, the I.A.D. did not determine whether the appellant had established a likely country of removal. The appeal is therefore allowed with costs. The judgment of the Federal Court of Appeal is set aside, and the matter is returned to the I.A.D. for reconsideration in accordance with these reasons. The I.A.D. must consider, first, whether there is a likely country of removal and, if so, whether any hardships the appellant could potentially face in that country are sufficient to alter the previous balance of relevant factors and thereby permit the appellant to remain in Canada. Appeal allowed with costs.", - "current_to": "2002-01-11", - "last_amended": "", - "history": "[2002] 1 SCR 84", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1940/index.do" - }, - { - "id": "scc-2284-1", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "para 1", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The core question on these appeals is whether s. 196, a transitional provision of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), removes the right to appeal an order for removal to the Immigration Appeal Division (“IAD”), in the case of persons deemed inadmissible for serious criminality (i.e., sentenced to six months or more of imprisonment). The old statute (Immigration Act, R.S.C. 1985, c. I-2) granted this right of appeal. The new statute does not for those imprisoned over two years. The transitional provision took away the right to appeal an order for removal unless a party had, under the old Act, been “granted a stay”. The old Act provided for two kinds of stays: automatic stays and actively ordered stays. The appellants enjoyed only an automatic statutory stay. If the phrase “granted a stay” indicates both kinds of stays, the appellants’ right to appeal is preserved. Conversely, if it indicates only actively ordered stays, the appellants’ right to appeal is removed.", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-2", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 2–3", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellants are Olga Medovarski and Julio Esteban. Ms. Medovarski was sentenced to two years of imprisonment for criminal negligence causing death while driving a car when intoxicated. Mr. Esteban was sentenced to four years in prison for conspiracy to traffic cocaine. Both were ordered deported. Medovarski and Esteban each appealed to the Immigration Appeal Division of the Immigration and Refugee Board and their removal orders were automatically stayed. Both of those appeals were discontinued as a result of the transitional provisions of the IRPA . In each case the trial judge set aside the decision to discontinue the appeal: [2003] 4 F.C. 227, 2003 FCT 634; 237 F.T.R. 264, 2003 FC 930. In both cases the majority of the Federal Court of Appeal granted the Minister’s appeal, holding that the IRPA ’s transitional provisions intended to deny a right of appeal in the case of an automatic stay: [2004] 4 F.C.R. 48, 2004 FCA 85, and [2004] F.C.J. No. 1892 (QL).\n\nI conclude, as did the majority of the Federal Court of Appeal, that “granted a stay” indicates only actively granted stays, and s. 196 of the IRPA therefore removes the appellants’ right to appeal the order for their removal for serious criminality. The applicable principles of statutory interpretation permit no other conclusion. The appellants’ argument that this result is unfair does not displace this conclusion. The section, properly interpreted, establishes that Parliament intended to deny a right of appeal to persons in the appellants’ circumstances. Accordingly, I would dismiss the appeals. 2. Legislation", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-3", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 4–6", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The transitional provisions of the IRPA include ss. 192 and 196: 192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board. 196. Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.\n\nSection 64 of the IRPA expressly removes a right to appeal for those inadmissible on the grounds of serious criminality: 64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.\n\nThe appellants, Medovarski and Esteban, fall within the scope of the current s. 64 which alters the legislative regime to ensure that they have no right of appeal under the IRPA .", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-4", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "para 7", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, the appellants argue that since they filed a notice of appeal, which resulted in the removal order being automatically stayed pursuant to s. 49(1)(b) of the former Act, their appeal should not be discontinued under s. 196. 49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed . . . (b) in any case where an appeal from the order has been filed with the Appeal Division, until the appeal has been heard and disposed of or has been declared by the Appeal Division to be abandoned; . . . (1.1) Subsection (1) does not apply to (a) a person residing or sojourning in the United States or St. Pierre and Miquelon who is the subject of a report made pursuant to paragraph 20(1)(a); or (b) a person who has been determined to be not eligible to make a claim to be a Convention refugee by reason of paragraph 46.01(1)(b) and who is to be removed to a country with which the Minister has entered into an agreement under section 108.1 for sharing the responsibility for examining refugee claims. (The relevant provisions of the IRPA and its predecessor statute are found in the Appendix.) 3. Analysis", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-5", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 8–9", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The words of this statute, like any other, must be interpreted having regard to the object, text and context of the provision, considered together: E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. In interpreting s. 196 to determine whether it eliminates appeals for permanent residents for whom a stay from an order for removal had been granted, I consider the purpose of the IRPA and its transitional provisions, the French and English text of s. 196, the legislative context of s. 196, and the need to interpret the provision to avoid an absurd, illogical or redundant result. Finally, I deal with concerns about unfairness to the appellants caused by the transition to the new IRPA . 3.1 Purpose of the Section 196 Transitional Provisions\n\nThe IRPA enacted a series of provisions intended to facilitate the removal of permanent residents who have engaged in serious criminality. This intent is reflected in the objectives of the IRPA , the provisions of the IRPA governing permanent residents and the legislative hearings preceding the enactment of the IRPA .", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-6", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 10–11", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g., see s. 3(1) (i) of the IRPA versus s. 3(j) of the former Act; s. 3(1) (e) of the IRPA versus s. 3(d) of the former Act; s. 3(1) (h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.\n\nIn keeping with these objectives, the IRPA creates a new scheme whereby persons sentenced to more than six months in prison are inadmissible: IRPA , s. 36(1) (a). If they have been sentenced to a prison term of more than two years then they are denied a right to appeal their removal order: IRPA , s. 64 . Provisions allowing judicial review mitigate the finality of these provisions, as do appeals under humanitarian and compassionate grounds and pre-removal risk assessments. However, the Act is clear: a prison term of over six months will bar entry to Canada; a prison term of over two years bans an appeal.", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-7", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 12–14", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "In introducing the IRPA , the Minister emphasized that the purpose of provisions such as s. 64 was to remove the right to appeal by serious criminals. She voiced the concern that “those who pose a security risk to Canada be removed from our country as quickly as possible” (Standing Committee on Citizenship and Immigration, Evidence, May 8, 2001).\n\nIn summary, the provisions of the IRPA and the Minister’s comments indicate that the purpose of enacting the IRPA , and in particular s. 64, was to efficiently remove criminals sentenced to prison terms over six months from the country. Since s. 196 explicitly refers to s. 64 (barring appeals by serious criminals), it seems that the transitional provisions should be interpreted in light of these legislative objectives.\n\nThe appellants respond by suggesting transitional provisions are not to be interpreted with the legislative purpose in mind. Medovarski relies on the statement of Noël J. in Canada v. Trade Investments Shopping Centre Ltd., [1993] 2 C.T.C. 333 (F.C.T.D.), where Noël J. held that “[t]ransitional provisions do not lend themselves to the scrutiny of an overly strict interpretation” and that transitional provisions “are not adopted as part of a coherent legislative plan” (p. 340). Noël J., Medovarski submits, concluded that transitional provisions are “ad hoc provisions the sole purpose of which is to ensure that the particular provision of substantive law which they accompany is introduced in an equitable manner” (p. 340).", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-8", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 15–17", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "With respect, the argument rests on a selective reading of Noël J.’s words. He did not hold that transitional provisions attract special rules of interpretation. Rather, he affirmed that in statutory interpretation, the search is always for the intention of the legislator, and where legislative purpose is relevant to a transitional provision, as here, it should be considered. He stated, at p. 337: “In each of these cases, the scope of a transitional provision must be determined from its wording, the nature of the provision of substantive law which it has the effect of suspending and the specific situation which Parliament sought to correct by enacting it.”\n\nThe appellants also argue that Noël J.’s statement that the purpose of transitional provisions is to ensure equitable treatment, means that their particular circumstances must be considered in applying s. 196 of the IRPA . They argue that equitable treatment in their cases favours preserving their right of appeal under s. 196, given their reliance on that right, and their compelling personal circumstances.\n\nThis argument confuses broad equitable outcome with equitable treatment having regard to the different schemes of the two successive statutes. Transitional provisions are enacted to catch those who fall between the cracks created by two pieces of legislation. They ensure that these individuals are not left in legal limbo, uncertain of their rights and with no applicable law. This is the equitable treatment to which Noël J. refers, not a guarantee of an equitable outcome. 3.2 The Text of Section 196", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-9", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 18–19", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The next step is to consider the terms of s. 196. The Minister and majority of the Federal Court of Appeal conclude that the use of the term “granted” indicates an actively ordered, as opposed to an automatic stay. This is supported by the definition of the term “grant” in the Concise Oxford English Dictionary (11th ed. 2004) which defines it as: “give (a right, property, etc.) formally or legally to . . . legal conveyance or formal conferment” (p. 620). This definition supports a deliberate act. The English version of s. 196 suggests that it applies only to stays actively granted. This said, it is possible to argue, for instance, that statutes can “grant” a right of appeal and that consequently the English version of s. 196 is not as clear as the Minister contends.\n\nAgainst this, the appellants raise the French version of s. 196, the meaning of which is even less clear. The French text of s. 196 states: 196. Malgré l’article 192, il est mis fin à l’affaire portée en appel devant la Section d’appel de l’immigration si l’intéressé est, alors qu’il ne fait pas l’objet d’un sursis au titre de l’ancienne loi, visé par la restriction du droit d’appel prévue par l’article 64 de la présente loi.", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-10", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 20–22", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is argued that the French version broadly applies to all appeals that are not the “objet” of a stay, including statutory stays. However, again the matter is not entirely clear. “[L]’objet d’un sursis au titre de l’ancienne loi” is broader and more passive than the English version, which refers to “grant[ing] a stay”. The appellants argue that beneficiaries of automatic stays under the old Act are “objets” of a stay. Again, however, the matter is not entirely clear. On this interpretation it can be argued that the condition imposed by s. 196 would have little meaning (see below). Further, the companion s. 197 refers to “an appellant who has been granted a stay under the former Act” who “breaches a condition of the stay”. It uses the same language as s. 196. But s. 197 can only refer to an actively ordered stay since conditions are not imposed in an automatic stay, suggesting that s. 196 refers to an actively ordered stay.\n\nThe result is that we are dealing with an English version which arguably applies only to actively granted stays, although admitting of ambiguity, and a French version which arguably applies to all stays, whether statutory or granted, although again admitting of ambiguity.\n\nOther uses of the word “stay” in the old and new Acts provide little assistance; the term is used in a variety of different ways depending on the context. 3.3 Principles of French and English Statutory Interpretation", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-11", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 23–24", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "There is some conflict in the lower courts and between the parties as to the approach that should be adopted with respect to conflicting French and English versions of legislation. However, this dispute was addressed and resolved by this Court in R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6, supported by earlier decisions, particularly Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62. These cases, while not cited by the Federal Court of Appeal, guide the analysis of bilingual statutes.\n\nIn interpreting bilingual statutes, the statutory interpretation should begin with a search for the shared meaning between the two versions: P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 327. In Daoust, Bastarache J. held for the Court that the interpretation of bilingual statutes is subject to a two-part procedure.", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-12", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 25–28", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, one must apply the rules of statutory interpretation to determine whether or not there is an apparent discordance, and if so, whether there is a common meaning between the French and English versions. “[W]here one of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning”: Schreiber, at para. 56, per LeBel J. Schreiber concerned a discrepancy between the French version of s. 6 (a) of the State Immunity Act , R.S.C. 1985, c. S‑18 , which stated that the exception to state immunity is narrowly “décès” or “dommages corporels”, compared to the broader English “death” or “personal injury”. Given the conflict between the two provisions the Court adopted the clearer and more restrictive French version. The common meaning is the version that is plain and not ambiguous. If neither version is ambiguous, or if they both are, the common meaning is normally the narrower version: Daoust, at paras. 28-29.\n\nSecond, one must determine if the common meaning is consistent with Parliament’s intent: Daoust, at para. 30.\n\nI now turn to the application of these principles to the facts in this case.\n\nIf the English version of s. 196 is interpreted as applying only to actively granted stays, and if the French version is read as referring to all stays, including automatic ones, the two versions are inconsistent. One then looks for the common meaning, which is normally the narrower meaning. In this case, the narrower version is the English version of s. 196. This suggests that the English meaning prevails, and the provision is confined to actively granted stays.", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-13", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 29–32", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "If both the English and French versions are seen as ambiguous, the result is the same. One reconciles them at the first step by finding the common meaning, which again is the narrower meaning.\n\nThe final step asks whether the results comport with Parliament’s intent. Here they do. The narrower interpretation accords with Parliament’s general object of abolishing appeals where a permanent resident has been found inadmissible on the grounds of serious criminality and is sentenced to a prison term of over two years, while preserving appeals in cases where the merits were such that a stay is ordered. 3.4 Avoidance of Redundancy\n\nAs we have seen, consideration of the purpose and language of s. 196 tend to suggest that it was intended to apply only to actively granted stays. This conclusion is reinforced by the absurd effect of the interpretation advocated by the appellants. If s. 196 applies to automatic stays, then it effectively becomes redundant and is reduced to an essentially meaningless statutory provision.\n\nThe appellants’ interpretation results in three related problems.", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-14", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 33–34", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, s. 192 provides that appeals are continued “[i]f a notice of appeal has been filed”. Section 49(1)(b) of the former Act automatically stayed the execution of a removal order once the appeal has been filed. This would mean that the appellants’ removal orders were automatically stayed by the simple act of filing an appeal. They argue that this should result in their appeals being continued pursuant to s. 192 of the IRPA . However, s. 196 states that “[d]espite section 192, an appeal made to the Immigration Appeal Division . . . shall be discontinued if the appellant has not been granted a stay”. Since the appellant has already automatically been granted a stay under s. 49(1)(b), requiring that a stay be granted for the operation of s. 196 would make no sense since an automatic stay is already in place. Further, the use of “if” or “si” in s. 196 creates a condition. If the appellants’ interpretation is accepted then there is no condition to satisfy since every appeal pending before the IAD would be continued. Therefore, the automatic stay imposed with the filing of the appeal cannot be enough; more is needed to give meaning to s. 196 and the conditional phrase, “if the appellant has not been granted a stay”.\n\nSecond, the appellants’ argument leads to the absurdity of concluding that Parliament intended to eliminate appeals for inadmissible people outside the country, while allowing appeals to proceed for inadmissible persons who are in the country. Section 49(1) applies only to removal orders, and hence only to people within the country. This leaves the unanswered question: why would Parliament create a broad exemption for persons in the country yet accord none to similar persons outside the country?", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-15", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 35–37", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Third, the appellants’ interpretation appears to result in a redundancy inconsistent with the purpose of the Act. As just discussed, s. 49(1)(b) of the former Act imposes an automatic stay when an appeal is filed. Thus the simple act of filing an appeal would exempt the appeal from being discontinued by s. 196 of the IRPA . Thus there is little left for s. 196 to discontinue other than appeals that have been granted to s. 49(1.1) appellants. These people are a subset of serious criminals in the system. This raises the question of why Parliament would confine the provision to a subset, when its legislative purpose was concerned with serious criminals generally. As Evans J.A. stated, there is no cogent policy rationale for such a distinction (para. 43).\n\nThe appellants counter with their own redundancy argument, which in the end has little merit. They argue that the Minister’s interpretation of s. 196 would render the provision redundant because under the former Act, the only way that a deliberate stay could be “granted” was via s. 73(1)(c). This was one way the IAD could “dispose” of an appeal. However, both ss. 192 and 196 refer to an appeal in progress as opposed to an appeal that has been “disposed” of. As a result, according to the appellants, s. 196 cannot apply to a deliberate stay since under s. 73(1)(c) there is no such thing as a stay granted in an ongoing appeal.\n\nThis argument is answered simply by pointing out that granting a stay under s. 73(1)(c) was merely a temporary measure, and the IAD retained an ongoing supervisory jurisdiction. Its decision was not final: Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577. The appeal would only truly be disposed of, or terminated, when the appeal was allowed or dismissed.", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-16", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 38–41", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the end, the Minister’s claim that the appellants’ interpretation would render the transitional provisions largely redundant and meaningless is persuasive, and the appellants provide no viable counter argument. 3.5 Other Arguments\n\nTo counter the apparent redundancy of s. 196 on their interpretation, the appellants raise a series of practical considerations that they submit should inform the interpretation of s. 196. These normative arguments may suggest an absurdity or legislative intention and inform the context of an enactment. As such, they may be properly considered in interpreting a disputed provision.\n\nThe appellants’ first practical argument is that had they known that their right to appeal would be retroactively removed, they would have proceeded differently in their criminal trials. The two appellants are in different positions in this regard, although Esteban adopts many of Medovarski’s facts to support his case.\n\nMedovarski claims that had she known that she might be denied an appeal by s. 196 (and s. 64), she would have instructed her counsel to bring this fact to the attention of the sentencing judge, in support of a sentence of two years less a day, as opposed to two years. According to her, interpreting s. 196 in a manner which continues her appeal because of the automatic stay remedies this unjust situation. However, s. 64 has caught, or is likely to catch, any number of permanent residents who are or were in prison serving two-year terms at the time the IRPA was passed. They too might have sought two-year sentences less a day had they known that a two-year sentence would remove their right of appeal under the IRPA . Parliament chose not to account for this obvious situation.", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-17", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 42–43", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellants’ second practical argument is that they are left in a worse position than had their cases been dealt with under either Act exclusively. Even though the IRPA removed a right of appeal, the appellants would have had other procedural protections, including an assessment report had they been dealt with entirely under the IRPA : ss. 44(1) and 44(2). Under the former Act, procedures of equitable review were conducted at a later stage via the appeal. Parties were also given notice that the Minister intended to issue a “danger opinion” (which removed a right of appeal) (s. 70(5)) and an opportunity to make submissions. Under the transitional provisions as interpreted by the Minister, the appellants have lost recourse to both the former and the later mechanisms of appeal or review.\n\nThe Minister raises factors which it submits balance the appellants’ concerns. Medovarski will not be deported without an assessment of the risks she might face in her home country: IRPA , ss. 112(1) , 113 (d), 97 and 114(1) (b). Medovarski and Esteban can always appeal on humanitarian and compassionate grounds although they will have to do this outside the country: IRPA , s. 25(1) . Finally, they retain their right to seek leave and judicial review of the removal order and other decisions leading to it: s. 72 of the IRPA . It remains true that the appellants were left with fewer options than had they proceeded exclusively under either Act. However, this alone does not suffice to negate the inference flowing from other considerations that Parliament intended this result.", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-18", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 44–46", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellants’ third practical argument is that their appeals were discontinued after they had been filed. However, this argument is answered by the fact that the express purpose of the IRPA ’s transitional provisions is to deal with these pending appeals. Section 196 expressly provides that it operates despite s. 192, which is only engaged if a notice of appeal has been filed under the former Act. Thus any unfairness on this account is contemplated by the legislation.\n\nFinally both appellants raise Charter arguments. Medovarski claims that s. 196 violates her s. 7 rights to liberty and security of the person. She claims that deportation removes her liberty to make fundamental decisions that affect her personal life, including her choice to remain with her partner. Medovarski argues her security of the person is infringed by the state-imposed psychological stress of being deported. Medovarski further alleges that the process by which her appeal was extinguished was unfair, contrary to the principles of fundamental justice.\n\nThe most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733. Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms .", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-19", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 47–48", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Even if liberty and security of the person were engaged, the unfairness is inadequate to constitute a breach of the principles of fundamental justice. The humanitarian and compassionate grounds raised by Medovarski are considered under s. 25(1) of the IRPA in determining whether a non-citizen should be admitted to Canada. The Charter ensures that this decision is fair: e.g., Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Moreover, Chiarelli held that the s. 7 principles of fundamental justice do not mandate the provision of a compassionate appeal from a decision to deport a permanent resident for serious criminality. There can be no expectation that the law will not change from time to time, nor did the Minister mislead Medovarski into thinking that her right of appeal would survive any change in the law. Thus for these reasons, and those discussed earlier, any unfairness wrought by the transition to new legislation does not reach the level of a Charter violation.\n\nEsteban asserts that Charter values should inform the interpretation of s. 196. Charter values only inform statutory interpretation where “genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute”: CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 14. Both readings are not equally in accordance with the intention of the IRPA . Thus it is not necessary to consider Charter values in this case. 3.6 Conclusion on the Meaning of Section 196", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2284-20", - "doc_type": "caselaw", - "act_code": "2005 SCC 51", - "act_short": "Medovarski", - "act_name": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51", - "marginal_note": "paras 49–51", - "heading": "The objectives of IRPA; a non-citizen has no Charter s. 7 right to remain in Canada", - "part": "Supreme Court of Canada", - "division": "", - "text": "Despite the fairness arguments raised by the appellants, I conclude that the interpretation of s. 196 they suggest leads to a legislative redundancy and is inconsistent with the objectives of the IRPA . This conclusion finds further support in the text of s. 196 and principles of interpretation of bilingual statutes. 4. Conclusion\n\nSection 196 of the IRPA , properly interpreted, applies only to actively granted stays. The appellants were never the beneficiaries of actively granted stays. Therefore, s. 196 does not apply to them and their right to appeal their orders for removal were not preserved.\n\nI would dismiss the appeals with costs to the respondent.", - "current_to": "2005-09-30", - "last_amended": "", - "history": "[2005] 2 SCR 539", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2284/index.do" - }, - { - "id": "scc-2273-1", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 1–4", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this appeal, this Court is required to determine whether the Federal Court of Appeal erred in overturning a decision of the Immigration and Refugee Board (Appeal Division) that had found the respondent inadmissible to Canada pursuant to ss. 27(1)(a.1)(ii), 27(1)(a.3)(ii), 27(1)(g) and 19(1)(j) of the Immigration Act, R.S.C. 1985, c. I‑2 (now replaced by the Immigration and Refugee Protection Act , S.C. 2001, c. 27 ).\n\nThe outcome of the appeal hinges on the characterization of a speech delivered by the respondent Léon Mugesera in Rwanda in the Kinyarwandan language. The speech triggered a series of events that have brought the Government of Canada and Mr. Mugesera to this Court.\n\nIn short, the content of the speech led the Rwandan authorities to issue the equivalent of an arrest warrant against Mr. Mugesera, who fled the country shortly thereafter. He found temporary refuge in Spain. On March 31, 1993, he applied for permanent residence in Canada for himself, his wife, Gemma Uwamariya, and their five children, Irenée Rutema, Yves Rusi, Carmen Nono, Mireille Urumuri and Marie‑Grâce Hoho. After the application was approved, the Mugesera family landed in Canada in August 1993.\n\nIn 1995, the Minister of Citizenship and Immigration became aware of allegations against the respondent and commenced proceedings under s. 27 of the Immigration Act. A permanent resident of Canada may be deported if it is determined, inter alia, that before or after being granted permanent residency, the individual committed criminal acts or offences. In this case, the speech was alleged to constitute an incitement to murder, hatred and genocide, and a crime against humanity.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-2", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 5–6", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In July 1996, an adjudicator concluded that the allegations were valid and issued a deportation order against Mr. Mugesera and his family. The Immigration and Refugee Board (Appeal Division) (“IAD”) upheld the adjudicator’s decision and dismissed the respondents’ appeal ([1998] I.A.D.D. No. 1972 (QL)). The findings of fact and law were subject to judicial review in the Federal Court – Trial Division (“FCTD”) ((2001), 205 F.T.R. 29, 2001 FCT 460), and then in the Federal Court of Appeal (“FCA”). Décary J.A., writing for the FCA, reversed several findings of fact made by the IAD and reversed the deportation order, concluding that the Minister had not met his burden ([2004] 1 F.C.R. 3, 2003 FCA 325, with supplementary reasons (2004), 325 N.R. 134, 2004 FCA 157). The Minister has now appealed to this Court, and he asks that the IAD’s deportation order be confirmed.\n\nThis appeal raises a number of issues. First, we must consider the standard of review which a reviewing court should apply to findings of fact and conclusions of law. Second, we must apply the appropriate standard of review to determine the facts. This inquiry focuses on the interpretation of the contents of the speech which lies at the heart of these proceedings. Third, having determined the operative facts — what Mr. Mugesera said in the speech — we must apply the law to that speech to determine whether the legal requirements for a deportation order are met. This requires us to consider the provisions of the Immigration Act relating to the applicable standard of proof, and the provisions of the Criminal Code , R.S.C. 1985, c. C-46 , relating to incitement to murder, incitement to hatred, incitement to genocide, and crimes against humanity.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-3", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 7–11", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "For the reasons that follow, we would allow the appeal. The decision of the FCA should be set aside and the decision of the IAD in favour of deportation should be restored. II. Background and Judicial History A. Overview of Rwandan History\n\nThere is no doubt that genocide and crimes against humanity were committed in Rwanda between April 7 and mid-July 1994. Although we do not suggest that there is absolutely no connection between the events, it is important to be mindful that one cannot use the horror of the events of 1994 to establish the inhumanity of the speech of November 22, 1992. The allegations made against Mr. Mugesera must be analysed in their context, at the time of his speech.\n\nIn order to fully understand the content of the speech of November 22, 1992, it is necessary to situate the speech in the historical context in which it was given. “What we have is a speech delivered in a political context, to an audience that is already aware of several facts, but for which we need explanations if we are to follow it clearly” (IAD judgment, at para. 133).\n\nWe will not examine Rwandan history at length but will highlight some key facts and events that are relevant to the disposition of the issues on this appeal. (1) The Political and Ethnic Context\n\nRwanda is a small, extremely hilly country in the Great Lakes region of Central Africa. In 1992 there were three officially recognized ethnic groups living in Rwanda: the Hutu, the Tutsi, and the Twa. The Hutu and the Tutsi were the two major ethnic groups as the Twa represented only about 1 percent of the population.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-4", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 12", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although there are different explanations regarding the origin of and distinction between the two major ethnic groups, the IAD found that in 1992 a large number of Rwandans apparently believed the theory propagated by the colonists that the Tutsi were a distinct race who originated in Ethiopia. It was also common lore that the Tutsi had invaded and conquered Rwanda and enslaved its inhabitants, the Hutu (IAD judgment, at para. 45). The distinction between the groups was permanently entrenched at the time of colonization and with the introduction of identification cards. The European colonial authorities, first German and then Belgian, favoured the Tutsi and used them to administer the colony.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-5", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 13–14", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In 1959, shortly before the country gained independence, its first political parties were formed. They had ethnic rather than ideological foundations. The major Hutu party, the Parmehutu, won the June 1960 election. With the establishment of the first Republic in 1961, the entire Tutsi political and administrative structure was eliminated. In Rwanda, violence and harassment caused a large number of Tutsi to flee the country, mainly to Uganda. The IAD referred to the 1959‑1961 revolution as the “crucial point of reference for three decades” (para. 49). A cycle of violence emerged. Tutsi in exile made incursions into Rwanda and each attack was followed by reprisals against Tutsi within the country. The IAD, at para. 26, described the situation as follows: Some refugees began to attack Rwanda in 1961 and tried to invade the country about a dozen times. These were the Inyenzi. After each attack, the Tutsi remaining in Rwanda suffered reprisals that were either spontaneous or organized by the authorities. And each time waves of refugees left Rwanda. Some relatively extensive massacres occurred in 1963 (5,000 to 8,000 deaths alone in Gikongoro prefecture). Further disturbances and massacres thrust more large groups into exile. An estimated 600,000 people, essentially Tutsi, left Rwanda between 1959 and 1973. [Footnotes omitted.]\n\nIn the wake of the massacres and of general discrimination in the period between 1963 and 1973, about one half of the Tutsi population left Rwanda (IAD judgment, at para. 49).", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-6", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 15–17", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "On July 5, 1973, General Juvénal Habyarimana seized power in “a coup d’état”. This was the advent of Rwanda’s second Republic. The Mouvement révolutionnaire national pour le développement (“MRND”), a hard-line Hutu political party, became the sole official party. In July 1986, the government declared that the return of refugees was conditional upon their ability to support themselves. Rwanda was not capable of settling the large numbers of refugees who had fled the country. Tutsi refugees were not able to return to Rwanda. This led to the creation of the Rwandan Patriotic Front (“RPF”) in Kampala, Uganda. The RPF consisted of Rwandan refugees and former members of the Ugandan army. The objective of the exiles was to return to Rwanda.\n\nIn 1988, at an international conference of Rwandan refugees held in Washington, the Rwandan government reversed its position and a full right of return was affirmed. A special committee was created to deal with the problem of Rwandan refugees living in Uganda. The committee met a number of times to develop a plan for the return. Although this process created a “dynamic of confrontation” the period was one of relative peace (IAD judgment, at para. 26). (2) The Early 1990s\n\nOn July 5, 1990, President Habyarimana announced a [translation] “political aggiornamento” and his wish to create a multiparty government with a new constitution. In September, a [translation] “national synthesis commission” on political reform was established. It began its work in October 1990.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-7", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 18–19", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The RPF invaded northern Rwanda on October 1, 1990. Mass arrests and the detention of alleged RPF accomplices, 90 percent of whom were Tutsi, followed. The Minister of Justice considered Tutsi intellectuals to be RPF accomplices. Several massacres were perpetrated by the Rwandan army. By the end of October, the Rwandan army had pushed the insurgents back across the Ugandan border. This marked the end of conventional warfare and the beginning of a protracted semi-guerilla war. Between October 1990 and January 1993 approximately 2,000 Tutsi were massacred. There were also reports that hundreds of civilians had been attacked and killed by the RPF.\n\nIn late March 1991, a draft political charter was published along with a preliminary draft constitution. New political parties were created: the Mouvement démocratique républicain (“MDR”), the Parti social-démocrate (“PSD”), the Parti libéral (“PL”) and the Parti démocrate-chrétien (“PDC”). The PL was the only party that was more or less identified with the Tutsi. On April 28, 1991, President Habyarimana announced changes to the MRND: the party’s name was changed to Parti républicain national pour le développement et la démocratie, and members of its central committee would henceforth be elected. A new constitution introducing the multiparty system was adopted on June 10, 1991, and this was followed on June 18 by the promulgation of a new law on political parties.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-8", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 20–22", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In December 1991, Prime Minister Nsanzimana announced the creation of a new government made up entirely of MRND members with the exception of one minister of the PDC. Thousands of people protested against this decision. As a result, negotiations between the MRND and the opposition parties resumed in February 1992. These discussions led to the formation of a multiparty transitional government in April. In response, the MRND militia launched attacks in several parts of the country.\n\nThe RPF had not been included in the initial negotiations, but in May 1992 it occupied a small part of northern Rwanda, which forced the new government to negotiate with it. Three agreements between the government and the RPF were concluded in Arusha: a cease-fire agreement on July 12, a rule of law protocol on August 18, and the initial power-sharing agreement on October 30. The day after the signing of the protocol, there were massacres of Tutsi and moderate Hutu.\n\nOn November 15, 1992, President Habyarimana referred to the Arusha accords as a scrap of paper. Months of escalating violence followed. There were reports of massacres of Tutsi and of political opponents. Nevertheless, the Arusha talks were resumed in March of 1993, and on August 4, 1993 the Government and the RPF signed the final Arusha accords and ended the war that had begun on October 1, 1990.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-9", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 23–25", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "It was in this context of internal political and ethnic conflict that Mr. Mugesera made his speech. At the time, Mr. Mugesera was a well-educated and well-connected man. After receiving part of his higher education and completing a graduate degree in Canada, he returned to Rwanda, where he held teaching and public service positions. He also got involved in local politics. He was an active member of the MRND, the hard-line Hutu party which opposed the Arusha process.\n\nOn November 22, 1992, Mr. Mugesera delivered the speech which lies at the heart of this case. (See Appendix III. Paragraph numbering has been added to the speech for easier reference.) He spoke to about 1,000 people at a meeting of the MRND, at Kabaya in Gisenyi prefecture, just a few days after the speech in which President Habyarimana had described the Arusha agreements as a scrap of paper. As mentioned above, the contents of this speech led to an attempt to arrest Mr. Mugesera and to his flight to Canada, where he found refuge in August 1993. B. The Allegations Against Mr. Mugesera\n\nAfter receiving further information about the activities of Mr. Mugesera in Rwanda, the Minister of Citizenship and Immigration moved to deport the respondent and his family under s. 27 of the Immigration Act. The Minister alleged that the speech constituted an incitement to commit murder (A), an incitement to genocide and to hatred (B), and a crime against humanity (C). The Minister also alleged that by answering “no” on his permanent resident application to the question of whether he had been involved in a crime against humanity, Mr. Mugesera had misrepresented a material fact, contrary to the Act (D). A summary of the Minister’s allegations is attached as Appendix I.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-10", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 26–27", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the hearing before this Court, the Minister dropped the allegation of misrepresentation of a material fact. As this allegation would have been the sole basis for a deportation order against the members of Mr. Mugesera’s family, the Minister no longer seeks to deport them. C. The Proceedings Below\n\nThe proceedings before the adjudicator, Pierre Turmel, went on for 29 days and involved 21 witnesses. In his decision of July 11, 1996, the adjudicator ordered the deportation from Canada of Mr. Mugesera, his wife, and their children, who appealed the decision to the IAD. Although a hearing before the IAD is in fact a hearing de novo and the IAD may consider new evidence, the parties agreed that all the evidence at first instance would be filed in full on the appeal. In addition, each of the parties called four witnesses. The hearing lasted 24 days. The IAD found that all the Minister’s allegations were justified and dismissed the family’s appeal.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-11", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 28", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Pierre Duquette wrote the main reasons for the IAD’s decision. Based on his interpretation of the speech, he held that the allegations of incitement to murder, genocide and hatred had been established. In his opinion, the allegation of crimes against humanity had also been made out. Mr. Duquette concluded that there was insufficient evidence to find, on a balance of probabilities, that Mr. Mugesera was a member of the death squads, that he participated in massacres, or that the killings committed in Rwanda following the speech were specifically tied to the speech. The other two members of the panel, Yves Bourbonnais and Paule Champoux Ohrt, concurred in part with these reasons, but disagreed with Mr. Duquette’s findings on the allegations that Mr. Mugesera incited others to commit murders and that one or more murders were committed as a result. They concluded, on a balance of probabilities, that murders were committed the day after the speech and that some of them were directly related to the speech. They also found that Mr. Mugesera was an Akazu and death squad member and that he participated in massacres. (The Akazu was a political and business network that was very close to President Habyarimana, and in particular to his wife’s family. The Akazu was also one element of the death squads.) These acts constituted offences under ss. 91(4) of Book I and 311 of Book II of the Rwandan Penal Code, and would also have been crimes under ss. 22 , 235 and 464 (a) of the Criminal Code .", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-12", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 29", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Mugesera applied to the Federal Court for judicial review of the IAD’s decision. On May 10, 2001, after a hearing that lasted 14 days, Nadon J. found that there was no basis for allegations C (crimes against humanity) and D (misrepresentation), but that allegations A (incitement to murder) and B (incitement to genocide and hatred) were valid. With regard to the IAD’s analysis of the speech, Nadon J. found that Mr. Duquette’s reasons evinced a painstaking and careful analysis based on the evidence. It was therefore impossible for him to conclude that the interpretation of the speech and the resulting findings of fact were unreasonable. He acknowledged the applicant’s argument that an interpretation other than the one accepted by Mr. Duquette was possible and could have been accepted, but found that this was not a reason to intervene. The applicable principles of judicial review are clear: unless the impugned conclusions are patently unreasonable, the IAD’s findings of fact are entitled to great deference. Nadon J. dismissed the application for judicial review on allegations A and B and allowed it on allegations C and D. In respect of allegation C, he concluded that because Mr. Duquette could not link the speech to murders or massacres, it could not in the circumstances constitute a crime against humanity. He referred the matter back to the IAD for reconsideration on this point of law.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-13", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 30–31", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the FCA, Décary J.A., who wrote the main reasons for the court, held regarding the allegations of incitement to murder and incitement to genocide and hatred, that the initial decision by the Minister to seek deportation and the decisions of the adjudicator, the IAD and the FCTD were decisively influenced by a 1993 report of the International Commission of Inquiry (“ICI”). The IAD had acted in a patently unreasonable way by relying on the ICI’s findings of fact. The ICI’s conclusions regarding Mr. Mugesera lacked any credibility. The report should not have been taken into consideration.\n\nIn addition, Décary J.A. found that the IAD had made a patently unreasonable error in not accepting the testimony of Professor Angenot, one of Mr. Mugesera’s experts, on the analysis of the speech; Professor Angenot suggested that certain comments made in the speech had been misinterpreted. The FCA took the position that since the speech could be classified as political speech, it had to be accorded wide latitude and substantial protection under s. 2( b ) of the Canadian Charter of Rights and Freedoms . Objectively speaking, if the speech and its context were analysed as a whole, the message of the speech did not incite to murder, hatred or genocide. As to the allegation of crimes against humanity, Décary J.A. found that the speech did not prima facie meet the requirement that the act be part of a widespread or systematic attack against the members of a civilian population for (in this case) reasons relating to ethnic origin. With respect to the situation on November 22, 1992, there was no evidence that the speech was part of a widespread or systematic attack. For this reason, Décary J.A. found that the allegations of crimes against humanity were unfounded. III. Applicable Legislation", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-14", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 32–35", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Extracts from the following legislation in force at the relevant time are set out in Appendix II of these reasons: the Immigration Act; the Federal Court Act , R.S.C. 1985, c. F-7 ; the Criminal Code and the Rwandan Penal Code. IV. Issues\n\nOur Court must consider three related issues on this appeal. The first concerns the factual content of the speech and the question of whether the FCA exceeded its jurisdiction by substituting its own assessment of the evidence and failing to show due deference to the IAD’s findings of fact. The second involves the legal characterization of the speech and the question of whether the FCA erred in law in finding that Mr. Mugesera did not incite to hatred, murder and genocide. The third issue is whether the FCA erred in law in finding that there were no reasonable grounds to conclude that Mr. Mugesera had committed a crime against humanity in Rwanda. V. Analysis A. The Standard of Review\n\nThe first issue we must consider in this appeal is whether the FCA improperly substituted its own findings of fact for those of the IAD. In discussing this issue, we must examine the role played by the FCA in the judicial review process and the manner in which it performed the judicial review function in this case. (1) The Role of the Federal Court of Appeal\n\nAt the secondary level of appellate review, the court’s role is limited to determining whether the reviewing judge has chosen and applied the correct standard of review. The question of what standard to select and apply is one of law and is subject to a correctness standard: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 43.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-15", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 36–38", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the case at bar, we find that the FCA exceeded the scope of its judicial review function when it engaged in a broad-ranging review and reassessment of the IAD’s findings of fact. It set aside those findings and made its own evaluation of the evidence even though it had not been demonstrated that the IAD had made a reviewable error on the applicable standard of reasonableness. Based on its own improper findings of fact, it then made errors of law in respect of legal issues which should have been decided on a standard of correctness.\n\nApplications for judicial review of administrative decisions rendered pursuant to the Immigration Act are subject to s. 18.1 of the Federal Court Act . Paragraphs (c) and (d) of s. 18.1(4), in particular, allow the Court to grant relief if the federal commission erred in law or based its decision on an erroneous finding of fact. Under these provisions, questions of law are reviewable on a standard of correctness.\n\nOn questions of fact, the reviewing court can intervene only if it considers that the IAD “based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it” (Federal Court Act , s. 18.1(4) (d)). The IAD is entitled to base its decision on evidence adduced in the proceedings which it considers credible and trustworthy in the circumstances: s. 69.4(3) of the Immigration Act. Its findings are entitled to great deference by the reviewing court. Indeed, the FCA itself has held that the standard of review as regards issues of credibility and relevance of evidence is patent unreasonableness: Aguebor v. Minister of Employment & Immigration (1993), 160 N.R. 315, at para. 4. (2) The Federal Court of Appeal Erred in Its Application of the Standard of Review", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-16", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 39–41", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the FCA, Décary J.A. concluded that “so far as the explanation and analysis of the speech are concerned” the IAD’s findings were patently unreasonable (para. 242). In concluding as it did, the FCA showed no deference to the IAD’s findings of fact and overstepped the boundaries of its judicial review function.\n\nDécary J.A. based his conclusion on his own evaluation of the evidence: he reconsidered the relevance and weight to be accorded to the ICI’s Report, reassessed the IAD’s decision to reject Professor Angenot’s interpretation of the speech, and reassessed the reliability and credibility of witnesses. Without saying so, the FCA applied a standard of correctness and reviewed the evidence as if it were the trier of fact. In a judicial review process, it is not open to the reviewing court to reverse a decision because it would have arrived at a different conclusion. The FCA did not focus on the reasonableness of the findings, but reviewed their correctness based on its own view of the evidence.\n\nWe find that the conclusions of Mr. Duquette of the IAD were based on a careful review of all the evidence before the arbitrator and the IAD. Mr. Duquette reviewed and considered each passage in light of all the expert testimony. He identified evidence that he found to be credible and trustworthy and based his decision on it. His findings of fact were well reasoned, including references to the evidence and indications of the weight he accorded to it. Mr. Duquette explained his reasons for preferring one witness’s testimony over another, referred expressly to other evidence which pointed to a different conclusion and explained why that evidence was rejected.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-17", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 42–45", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The findings of fact as stated by Mr. Duquette for the IAD were reasonable and should not have been interfered with. The FCA should have proceeded with the review of the Minister’s allegations based on the facts as found by the IAD. The FCA had no reason to revisit and reconsider the evidence or the IAD’s findings of fact in relation to the interpretation of the speech.\n\nIn contrast, Nadon J., the reviewing judge of the FCTD, appropriately intervened to reject the findings of Mr. Bourbonnais and Ms. Champoux Ohrt as patently unreasonable. Nadon J. concluded that “there is no evidence to justify the conclusions” (para. 43). As Mr. Duquette found, no conclusive evidence on the record supported the specific finding that Mr. Mugesera was an Akazu or a death squad member, that he had participated in massacres, or that murders had been committed as a result of his speech of November 22, 1992. In the absence of evidence to justify the findings, the reviewing judge was correct to reject them as patently unreasonable.\n\nThe analysis of the Minister’s allegations against Mr. Mugesera will proceed on the basis of the facts as found by Mr. Duquette of the IAD, including his interpretation of the respondent’s speech. (3) The IAD’s Interpretation of the Content of the Speech\n\nBefore proceeding to our examination of the Minister’s allegations, it is necessary to review Mr. Duquette’s analysis of the general meaning of the speech. This is essential because the factual meaning of the speech lies at the core of these allegations.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-18", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 46–47", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Mugesera’s speech had been tape-recorded and subsequently transcribed. At the hearing before the adjudicator, it was proven that the transcript of the cassette (“composite No. 4”) filed in that proceeding accurately represented the speech as given. This was officially acknowledged by Mr. Mugesera at a pre-hearing conference on January 30, 1997 (IAD judgment, at para. 134). At the initial hearing, a number of French translations of the transcript were considered. In particular, the adjudicator was invited to choose between a translation by Mr. Thomas Kamanzi (for the Minister) and another one by Mr. Eugène Shimamungu (for the respondent). The adjudicator preferred the Kamanzi version. There was considerable argument at the IAD hearing over which translation should be accepted, but during final submissions before the IAD, the respondents finally accepted Mr. Kamanzi’s translation as a genuine rendition of the Kinyarwanda text.\n\nCounsel for Mr. Mugesera argued that the speech was not an incitement to murder or violence but rather a call for elections, law enforcement, justice, and self-defence. Counsel also argued that the speech could not be understood as an incitement because of the use of the conditional tense.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-19", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 48", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although it is accepted that Mr. Mugesera mentioned elections in the speech, Mr. Duquette concluded that “the call for elections does not override the earlier calls to violence” (para. 225). It is also worth noting, as Mr. Duquette pointed out, that when he discussed elections, Mr. Mugesera continually referred to the other parties as “Inyenzi”, which literally means cockroaches, and said that they must go away. He stated: [translation] Let them pack their bags, let them get going, so that no one will return here to talk and no one will bring scraps claiming to be flags! [para. 28] Mr. Duquette thus rejected Mr. Mugesera’s contention that the speech conveyed a democratic spirit and that it was, above all, a call for elections.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-20", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 49–50", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Duquette also rejected Mr. Mugesera’s argument that the speech was a plea for justice, law enforcement and self-defence. The speech could not be justified on the basis of self-defence because “[s]elf‑defence cannot be used to defend against a threat of future harm, or to take the law into one’s own hands as a preventive measure, or to avenge a past event” (para. 224). The speech urged the population to take the law into its own hands and this message went beyond a suggestion that proper law enforcement was necessary to restore order in the country. For example, while it was reasonable for Mr. Mugesera to advocate the prosecution of people who recruited soldiers for enemy armies, he passed the point of advocating law enforcement when he called on the population to “exterminate” those individuals: [translation] Why do they not arrest these parents who have sent away their children and why do they not exterminate them? Why do they not arrest the people taking them away and why do they not exterminate all of them? Are we really waiting till they come to exterminate us? [para. 16]\n\nGiven the context in which the reference to “extermination” was made, Mr. Duquette rejected Mr. Mugesera’s explanation that the word should be understood to mean the imposition of the death penalty (which is lawful under the Rwandan Penal Code). Mr. Duquette explained this rejection, at para. 229: This is not my reading of the speech. First, the verdict has already been rendered: the accused are guilty and must be sentenced to death. If they are not sentenced, the population must take matters into their own hands. The accused are sometimes clearly identified and sometimes simply members of a group and guilty for that.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-21", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 51–54", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "To support his conclusion, Mr. Duquette also relied on the speech’s many passages encouraging the population to attack before being attacked (para. 232).\n\nCounsel for Mr. Mugesera argued that any action encouraged by Mr. Mugesera was dependent on an unfulfilled condition and that there was therefore no suggestion that action should be taken. Mr. Duquette considered this argument and dismissed it as being without merit (paras. 233-38). It was understood in the speech that the conditions had already been fulfilled: there is no question that action was actively encouraged.\n\nThe examples cited by Mr. Duquette adequately illustrate the point and justify his conclusions: [translation] . . . if someone strikes you on one cheek, you hit them twice . . . . [para. 9] It is well understood in this passage that the first blow had already been struck: [translation] . . . if one day someone attacks you with a gun, you will not come to tell us that we . . . did not warn you of it! [para. 19] In the context of the speech, the word “if” means “when”.\n\nFinally, even in the case where the passage could appropriately be characterized as a conditional one, the threat was nonetheless real and the use of the conditional did not reduce it in any way: [translation] If anyone penetrates a cell, watch him and crush him: if he is an accomplice do not let him get away! Yes, he must no longer get away! [para. 24]", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-22", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 55", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Duquette concluded his analysis as follows at paras. 242-45: This speech was made in wartime (although a cease‑fire was in effect) when a multi‑party system was emerging. In this context, we may therefore expect strong language to be used. But the speech related to another context that must have been understood by both speaker and audience: the ethnic massacres. In mid‑October 1990, a short time after the outbreak of the war, 348 Tutsi were killed within 48 hours in Kibilira and 18 in Satinsyi, two communes close to Kabaya where the speech was made. In March 1992, 5 Tutsi were killed in Kibilira. Also in March of that year, again in Gisenyi prefecture and in neighbouring Ruhengeri prefecture, 300 Bagogwe (a Tutsi subgroup) were assassinated, according to official statistics. From October 1990 to February 1993, a total of 2,000 persons, mostly Tutsi, lost their lives in similar massacres in Rwanda. They were killed because they were considered accomplices of the “Inyenzi”. They were not soldiers or combatants, but civilians who were identified with the enemy because they belonged to a particular ethnic group. Under such circumstances, the speech cannot be considered innocuous. Mr. Mugesera urged the crowd not to leave themselves open to invasion, first by the FRP and second by those identified with them, members of the opposition parties and the Tutsi within the country. The heads of the opposition parties, Twagiramungu, Nsengiyaremye, and Ndasingwa (Lando), are traitors to the country. These parties must leave the region. The language used is extremely violent and is an incitement to murder. He recommends that the public take the law into their own hands by exterminating or being exterminated, using a language to provoke panic.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-23", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 55–56", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "He also uses the argument of party authority: “. . . do not say that we, the party representatives, did not warn you!” As for the Tutsi, it is already clear in paragraph 6 that the Hutu must defend themselves against them. I have concluded that the Tutsi were recruiting young people. Finally, the gist of paragraph 25 is clear: do not make the same mistake that you made in 1959 by letting the Tutsi leave; you must throw them into the river. All of this is an incitement to genocide. [Footnotes omitted; emphasis added.]\n\nHaving concluded that the FCA improperly substituted its own findings of fact for those of the IAD and having reviewed the factual content of the speech, we must now determine the legal nature of the speech in relation to the allegations made against the respondent Mugesera and in light of the applicable standard of proof set out in the relevant sections of the Immigration Act. This determination will be based on the IAD’s findings of fact regarding the translation and the interpretation of the speech. We will consider in turn each of the grounds raised by the Minister to justify deporting Mr. Mugesera. B. Incitement to Murder, Genocide and Hatred", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-24", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 57", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "As a first ground, the Minister alleges that Mr. Mugesera committed the crime of inciting to murder, contrary to ss. 91(4) and 311 of the Rwandan Penal Code and ss. 22 , 235 and 464 (a) of the Criminal Code of Canada . The Minister also asserts that the respondent committed the crime of incitement to hatred contrary to s. 393 of the Rwandan Penal Code and s. 319 of the Criminal Code . Finally, the Minister asserts that the respondent committed the crime of incitement to genocide in violation of s. 166 of the Rwandan Penal Code and of executive enactment 08/75 of February 12, 1975, by which Rwanda acceded to the International Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, December 9, 1948 (“Genocide Convention”), and contrary to s. 318(1) of the Criminal Code .", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-25", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 58", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "For the purpose of these specific allegations, the Minister’s evidence must meet the civil standard of the balance of probabilities. Sections 27(1)(a.1) and 27(1)(a.3) of the Immigration Act provide: 27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who . . . (a.1) outside Canada, . . . (ii) has committed, in the opinion of the immigration officer or peace officer, based on a balance of probabilities, an act or omission that would constitute an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, . . . (a.3) before being granted landing, . . . (ii) committed outside Canada, in the opinion of the immigration officer or peace officer, based on a balance of probabilities, an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence referred to in paragraph (a.2), . . .", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-26", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 59–61", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "As explained above, the standard of review on questions of law is one of correctness. Although the IAD is entitled to deference as regards findings of credibility and relevance, no such deference applies when it comes to defining the elements of the crime or to deciding whether the Minister has discharged the burden of proof, namely the burden of proving that, on the facts of this case, as found on a balance of probabilities, the speech constituted an incitement to murder, genocide and/or hatred. We will proceed, as did the courts below, on the basis that, where the Minister relies on a crime committed abroad, a conclusion that the elements of the crime in Canadian criminal law have been made out will be deemed to be determinative in respect of the commission of crimes under Rwandan criminal law. No one challenges the fact that the constituent elements of the crimes are basically the same in both legal systems. (1) Incitement to Murder\n\nAs will be recalled, Mr. Duquette concluded that while there was evidence that murders had occurred following the speech by the respondent, the evidence directly linking the murders to the speech was insufficient (para. 310). This finding of fact precludes the application of s. 22 of the Criminal Code on counselling an offence that is committed.\n\nUnder s. 464 (a) of the Criminal Code , however, it is an offence to counsel another person to commit an offence even if the offence is not committed. The Rwandan Penal Code also provides that it is a crime to incite murder, whether or not the incitement is followed by the actual commission of an offence. (a) Elements of the Offence of Counselling a Murder Which Is Not Committed", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-27", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 62–65", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 464 (a) of the Criminal Code provides that: 464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely, (a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable;\n\n“Counsel[ling]” is defined in s. 22(3) of the Criminal Code , which says that its meaning includes “procur[ing]”, “solicit[ing]”, or “incit[ing]”. To incite means to urge, stir up or stimulate: R. v. Ford (2000), 145 C.C.C. (3d) 336 (Ont. C.A.), at para. 28.\n\nThe offence of counselling requires that the statements, viewed objectively, actively promote, advocate, or encourage the commission of the offence described in them: R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 56. The criminal act will be made out where the statements (1) are likely to incite, and (2) are made with a view to inciting, the commission of the offence: R. v. Dionne (1987), 38 C.C.C. (3d) 171 (N.B.C.A.), at p. 180. An intention to bring about the criminal result, that the counsellor intend the commission of the offence counselled, will obviously satisfy the requisite mental element for the offence of counselling. (b) Findings in Respect of the Criminal Act\n\nMr. Duquette held that the November 22, 1992 speech was an incitement to kill members of the Tutsi ethnic group and opposition party members. We will review certain key passages, and Mr. Duquette’s explanation and analysis of them, in order to determine whether the criminal act of counselling a murder that is not committed has been made out.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-28", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 66", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Duquette’s analysis began with a review of the following passage, which called upon the audience to defend themselves against an invasion: [translation] The second point I have decided to discuss with you is that you should not let yourselves be invaded. At all costs, you will leave here taking these words with you, that you should not let yourselves be invaded. Tell me, if you as a man, a mother or father, who are here, if someone comes one day to move into your yard and defecate there, will you really allow him to come again? It is out of the question. You should know that the first important thing . . . you have seen our brothers from Gitarama here. Their flags — I distributed them when I was working at our party’s headquarters. People flew them everywhere in Gitarama. But when you come from Kigali, and you continue on into Kibilira, there are no more M.R.N.D. flags to be seen: they have been taken down! In any case, you understand yourselves, the priests have taught us good things: our movement is also a movement for peace. However, we have to know that, for our peace, there is no way to have it but to defend ourselves. Some have quoted the following saying: [translation] “Those who seek peace always make ready for war.” Thus, in our prefecture of Gisenyi, this is the fourth or fifth time I am speaking about it, there are those who have acted first. It says in the Gospel that if someone strikes you on one cheek, you should turn the other cheek.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-29", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 66–68", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "I tell you that the Gospel has changed in our movement: if someone strikes you on one cheek, you hit them twice on one cheek and they collapse on the ground and will never be able to recover! So here, never again will what they call their flag, what they call their cap, even what they call their militant, come to our soil to speak: I mean throughout Gisenyi, from one end to the other! [para. 9]\n\nParagraph 9 introduced the second point in Mr. Mugesera’s four-part speech: that they not allow themselves to be invaded. Mr. Duquette accepted Professor Angenot’s view that the message here was not to allow oneself, as a Rwandan, to be invaded by aggressors from the RPF and from among political opponents. Mr. Duquette noted that throughout the speech political opponents were “systematically characterized as inyenzi”, or cockroaches (para. 163).\n\nMr. Duquette explained the meaning of the term “Inyenzi” as follows: The expression “accomplices of the Inyenzi” should be explained. The term “inyenzi” was used during the 1960s to refer to a group of armed refugees who were attempting to stage incursions against Rwanda from outside the country. Inyenzi literally means cockroaches, alluding to the insects that infiltrate, are everywhere at night and are not seen during the day. By extension, Mr. Mugesera — and many others, to be sure — called those who were attacking Rwanda in the 1990s, the RPF, inyenzi. The RPF, for its part referred to its members as inkotanyi (literally, tenacious fighters) in a reference to militants of the king in the 19th century. In the dictionary filed as exhibit M‑4‑9, the third meaning is given as “[Translation] member of a Tutsi incursion group, at the time of Rwanda’s independence; a partisan fighter”. [Footnotes omitted; para. 156.]", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-30", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 69", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "At paragraph 13 of his speech, Mr. Mugesera attempted to draw a connection between the partisan fighters of the 1960s and the RPF. To him, they were all “Inyenzi”: [translation] Something else which may be called [translation] “not allowing ourselves to be invaded” in the country, you know people they call “Inyenzis” (cockroaches), no longer call them “Inkotanyi” (tough fighters), as they are actually “Inyenzis”. These people called Inyenzis are now on their way to attack us. He referred to the “Inkotanyi” as “Inyenzi”. Mr. Duquette concluded that: “The connection will necessarily also be made with all those he refers to as inyenzi in the speech” (para. 168).", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-31", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 70", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "At paragraph 15, Mr. Mugesera added that those who recruited soldiers for enemy armies should be arrested and prosecuted: [translation] You know what it is, dear friends, “not letting ourselves be invaded”, or you know it. You know there are “Inyenzis” in the country who have taken the opportunity of sending their children to the front, to go and help the “Inkotanyis”. That is something you intend to speak about yourselves. You know that yesterday I came back from Nshili in Gikongoro at the Burundi border, travelling through Butare. Everywhere people told me of the number of young people who had gone. They said to me [translation] “Where they are going, and who is taking them . . . why are they are (sic) not arrested as well as their families?” So I will tell you now, it is written in the law, in the book of the Penal Code: [translation] “Every person who recruits soldiers by seeking them in the population, seeking young persons everywhere whom they will give to the foreign armed forces attacking the Republic, shall be liable to death”. It is in writing. This was not an unreasonable statement. Mr. Duquette concluded that, although Mr. Mugesera did not say that people should be arrested because they were Tutsi, there was evidence to support the finding that it was understood at the time in Rwanda that the recruiters were Tutsi extremists. Indeed this was the explanation given by Mr. Mugesera to a journalist from Le Soleil (para. 178).", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-32", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 71–72", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Duquette interpreted the following two passages, in particular, as a call for murder: [translation] Why do they not arrest these parents who have sent away their children and why do they not exterminate them? Why do they not arrest the people taking them away and why do they not exterminate all of them? Are we really waiting till they come to exterminate us? I should like to tell you that we are now asking that these people be placed on a list and be taken to court to be tried in our presence. If they (the judges) refuse, it is written in the Constitution that “ubutabera bubera abaturage”. In English, this means that [translation] “JUSTICE IS RENDERED IN THE PEOPLE’S NAME”. If justice therefore is no longer serving the people, as written in our Constitution which we voted for ourselves, this means that at that point we who also make up the population whom it is supposed to serve, we must do something ourselves to exterminate this rabble. I tell you in all truth, as it says in the Gospel, “When you allow a serpent biting you to remain attached to you with your agreement, you are the one who will suffer”. [paras. 16-17]\n\nMr. Duquette rejected Mr. Mugesera’s suggestion that, when he said “exterminate”, he was talking about the death penalty. It is clear that he was suggesting that the legal system was not functioning and that the public should take the law into their own hands. He even suggested the verdict: extermination.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-33", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 73–74", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Paragraph 24 conveyed a similar “kill or be killed” message: [translation] One important thing which I am asking all those who are working and are in the M.R.N.D.: “Unite!” People in charge of finances, like the others working in that area, let them bring money so we can use it. The same applies to persons working on their own account. The M.R.N.D. have given them money to help them and support them so they can live as men. As they intend to cut our necks, let them bring (money) so [[we can defend ourselves by cutting their necks]]! Remember that the basis of our Movement is the cell, that the basis of our Movement is the sector and the Commune. He (the President) told you that a tree which has branches and leaves but no roots dies. Our roots are fundamentally there. Unite again, of course you are no longer paid, members of our cells, come together. If anyone penetrates a cell, watch him and crush him: if he is an accomplice do not let him get away! Yes, he must no longer get away!\n\nMr. Mugesera suggested that the first part of the paragraph was only a call for donations to support the war effort: he was asking the audience to help the government buy weapons. Mr. Duquette rejected this explanation as too subtle for the audience (para. 189). Mr. Mugesera referred to people who allegedly intended to cut his throat and said that resources had to be pooled to kill them.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-34", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 75", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the second part of the same paragraph, Mr. Mugesera focused on people who might enter the “cell”. The “cell” is the smallest administrative unit in Rwanda. Each prefecture is composed of communes, which are in turn composed of cells. The message conveyed here was that if someone arrived in the cell and was found to be an accomplice, he must not be allowed to get away. Mr. Duquette concluded that what was meant was that he should not be allowed to get out alive. Mr. Mugesera argued that he meant to say only that the stranger should be questioned to establish his identity and that he should be brought to trial. Mr. Duquette rejected this explanation as totally unreasonable. The audience would not believe that this alternative explanation is implicit in the words “he must no longer get away!”", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-35", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 76", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally, the conclusion of the speech again called for murder: [translation] So in order to conclude, I would remind you of all the important things I have just spoken to you about: the most essential is that we should not allow ourselves to be invaded, lest the very persons who are collapsing take away some of you. Do not be afraid, know that anyone whose neck you do not cut is the one who will cut your neck. Let me tell you, these people should begin leaving while there is still time and go and live with their people, or even go to the “Inyenzis”, instead of living among us and keeping their guns, so that when we are asleep they can shoot us. Let them pack their bags, let them get going, so that no one will return here to talk and no one will bring scraps claiming to be flags! [para. 28] Mr. Mugesera reminded the audience not to leave themselves open to invasion. He warned that “anyone whose neck you do not cut is the one who will cut your neck”. The point of this, Mr. Duquette concluded, was not to respond to an attack, but rather to make the first move. The speech also advised members of other political parties to leave before it was too late. Mr. Duquette found that while it did not amount to a direct call to murder, such advice was “extremely threatening because of what ha[d] just been said” (para. 218).", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-36", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 77–79", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IAD’s findings of fact support the conclusion that Mr. Mugesera’s speech should be viewed as an incitement to kill Tutsi and opposition party members. The elements of the actus reus are met: viewed objectively, Mr. Mugesera’s message was likely to incite, and was made with a view to inciting, murder. Mr. Mugesera conveyed to his listeners, in extremely violent language, the message that they faced a choice of either exterminating the Tutsi, the accomplices of the Tutsi, and their own political opponents, or being exterminated by them. (c) Findings in Respect of the Guilty Mind\n\nOn the question of whether Mr. Mugesera had the requisite intent, Mr. Duquette found that, given the context, Mr. Mugesera knew his speech would be understood as an incitement to commit murder. The context to which Mr. Duquette referred was the context of the ethnic massacres that took place before and after the speech: From October 1990 to February 1993, a total of 2,000 persons, mostly Tutsi, lost their lives in similar massacres in Rwanda. They were killed because they were considered accomplices of the “Inyenzi”. They were not soldiers or combatants, but civilians who were identified with the enemy because they belonged to a particular ethnic group. [Footnote omitted; para. 242.]\n\nThis finding of fact is sufficient to meet the mens rea for counselling an offence that is not committed. It shows that, on the facts, Mr. Mugesera not only intentionally gave the speech, but also intended that it result in the commission of murders.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-37", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 80–81", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "We find that the IAD correctly concluded that the allegation of incitement to murder that is not committed was well founded, and that the FCA erred in overturning that finding. We must now consider the Minister’s allegations in respect of the crime of incitement to genocide. (2) Incitement to Genocide\n\nThe second offence that the Minister alleges Mr. Mugesera committed in giving the speech is advocating or promoting genocide. We will now consider the elements of the offence and whether they are made out on the facts as found by Mr. Duquette.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-38", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 82", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Genocide is a crime originating in international law. International law is thus called upon to play a crucial role as an aid in interpreting domestic law, particularly as regards the elements of the crime of incitement to genocide. Section 318(1) of the Criminal Code incorporates, almost word for word, the definition of genocide found in art. II of the Genocide Convention, and the Minister’s allegation B makes specific reference to Rwanda’s accession to the Genocide Convention. Canada is also bound by the Genocide Convention. In addition to treaty obligations, the legal principles underlying the Genocide Convention are recognized as part of customary international law: see International Court of Justice, Advisory Opinion of May 28, 1951, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, at p. 15. The importance of interpreting domestic law in a manner that accords with the principles of customary international law and with Canada’s treaty obligations was emphasized in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 69-71. In this context, international sources like the recent jurisprudence of international criminal courts are highly relevant to the analysis. (a) The Elements of Advocating Genocide", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-39", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 83–84", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 318(1) of the Criminal Code proscribes the offence of advocating genocide: “Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.” Genocide is defined as the act of killing members of an identifiable group or of deliberately inflicting conditions of life on an identifiable group calculated to bring about the physical destruction of that group, in whole or in part: subs. (2). Subsection (4), at the relevant time, defined an identifiable group as “any section of the public distinguished by colour, race, religion or ethnic origin”. There is no Canadian jurisprudence dealing specifically with s. 318(1) of the Criminal Code . (i) Is Proof of Genocide Required?\n\nIn Prosecutor v. Akayesu, 9 IHRR 608 (1998), the Trial Chamber of the International Criminal Tribunal for Rwanda (“ICTR”) drew a distinction between the constituent elements of the crimes of complicity in genocide and incitement to genocide. In the case of a charge of complicity, the prosecution must prove that genocide has actually occurred. A charge of incitement to genocide, however, does not require proof that genocide has in fact happened: In the opinion of the Chamber, the fact that such acts are in themselves particularly dangerous because of the high risk they carry for society, even if they fail to produce results, warrants that they be punished as an exceptional measure. The Chamber holds that genocide clearly falls within the category of crimes so serious that direct and public incitement to commit such a crime must be punished as such, even where such incitement failed to produce the result expected by the perpetrator. [para. 562]", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-40", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 85–86", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the case of the allegation of incitement to genocide, the Minister does not need to establish a direct causal link between the speech and any acts of murder or violence. Because of its inchoate nature, incitement is punishable by virtue of the criminal act alone irrespective of the result. It remains a crime regardless of whether it has the effect it is intended to have: see also Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T (Trial Chamber I) (“Media Case”), 3 December 2003, at para. 1029. The Minister is not required, therefore, to prove that individuals who heard Mr. Mugesera’s speech killed or attempted to kill any members of an identifiable group. (ii) The Criminal Act: Direct and Public Incitement\n\nThe criminal act requirement for incitement to genocide has two elements: the act of incitement must be direct and it must be public: Akayesu, Trial Chamber, at para. 559. See also art. III(c) of the Genocide Convention. The speech was public. We need only consider the meaning of the requirement that it be direct.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-41", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 87–88", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Akayesu, the Trial Chamber of the ICTR held that the direct element “implies that the incitement assume a direct form and specifically provoke another to engage in a criminal act, and that more than mere vague or indirect suggestion goes to constitute direct incitement” (para. 557). The direct element of incitement “should be viewed in the light of its cultural and linguistic content” (para. 557). Depending on the audience, a particular speech may be perceived as direct in one country, and not so in another. The determination of whether acts of incitement can be viewed as direct necessarily focusses mainly on the issue of whether the persons for whom the message was intended immediately grasped the implication thereof (para. 558). The words used must be clear enough to be immediately understood by the intended audience. Innuendo and obscure language do not suffice. (iii) The Guilty Mind for Direct and Public Incitement to Genocide\n\nThe guilty mind required for the crime of incitement to genocide is an “intent to directly prompt or provoke another to commit genocide” (Akayesu, Trial Chamber, at para. 560). It implies a desire on the part of the perpetrator to cause another to have the state of mind necessary to commit the acts enumerated in s. 318(2) of the Criminal Code . The person who incites must also have the specific intent to commit genocide: an intent to destroy in whole or in part any identifiable group, namely, any section of the public distinguished by colour, race, religion, or ethnic origin (s. 318(2) and (4) of the Criminal Code ).", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-42", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 89–90", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Intent can be inferred from the circumstances. Thus, the court can infer the genocidal intent of a particular act from the systematic perpetration of other culpable acts against the group; the scale of any atrocities that are committed and their general nature in a region or a country; or the fact that victims are deliberately and systematically targeted on account of their membership in a particular group while the members of other groups are left alone: Akayesu, Trial Chamber, at para. 523. A speech that is given in the context of a genocidal environment will have a heightened impact, and for this reason the environment in which a statement is made can be an indicator of the speaker’s intent (Media Case, at para. 1022). (b) Findings in Respect of the Criminal Act\n\nMr. Duquette’s conclusion that Mr. Mugesera advocated genocide in his speech of November 22, 1992, is based on a number of findings of fact. The most important of them is Mr. Duquette’s interpretation of para. 25 of the speech, the infamous “river passage”: [translation] Recently, I told someone who came to brag to me that he belonged to the P.L. — I told him [translation] “The mistake we made in 1959, when I was still a child, is to let you leave”. I asked him if he had not heard of the story of the Falashas, who returned home to Israel from Ethiopia? He replied that he knew nothing about it! I told him [translation] “So don’t you know how to listen or read? I am telling you that your home is in Ethiopia, that we will send you by the Nyabarongo so you can get there quickly”.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-43", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 91–93", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first relevant finding of fact is that the individual to whom Mr. Mugesera was speaking in this story was a Tutsi. As Mr. Duquette explained, Mr. Mugesera was speaking to a member of an opposition party, the PL. He referred specifically to the events of 1959 when many Tutsi went into exile, and he mentioned Ethiopia. It is common lore in Rwanda that the Tutsi originated in Ethiopia. This belief was even taught in primary and secondary schools.\n\nThe second relevant finding of fact is that Mr. Mugesera was suggesting at this point that Tutsi corpses be sent back to Ethiopia. Mr. Mugesera argued that he was only telling his audience that, just as the Falasha had left Ethiopia to return to their place of origin, Israel, so should the Tutsi return to Ethiopia. In their case, the return trip would be by way of the Nyabarongo River, which runs through Rwanda toward Ethiopia. This river is not navigable, however, so the return would not be by boat. In earlier massacres, Tutsi had been killed and their bodies thrown into the Nyabarongo River.\n\nThe reference to 1959 is also important, because the group that was exiled then was essentially Tutsi. The “Inyenzi” and the “Inkotanyi” were recruited from this group. Throughout his speech, as we have seen, Mr. Mugesera drew connections between the two groups. Mr. Duquette also found that the speech clearly advocated that these “invaders” and “accomplices” should not be allowed to “get out”, suggesting that the mistake made in 1959 was to drive the Tutsi out of Rwanda, with the result that they were now attacking the country.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-44", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 94–95", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Summarizing his findings on the meaning of this paragraph, Mr. Duquette wrote: It is therefore clear that the speaker is a Tutsi and that when Mr. Mugesera says “we will send you down the Nyabarongo”, “you” means the Tutsi and “we”, means the Hutu. It is also obvious that the speaker is impressing on the audience that it was a mistake to drive the Tutsi out of Rwanda in 1959, since they are now attacking the country. Finally, it is clear that he is suggesting that the Tutsi corpses be sent back via the Nyabarongo River. [para. 201] This message was delivered in a public place at a public meeting and would have been clearly understood by the audience.\n\nMr. Duquette concluded that the individual elements of the “river passage” were inconclusive, but that, taken together, they contained a deliberate call for the murder of Tutsi. “When a person says that Tutsis should be thrown into the river as [sic] and is making references to 1959, he is sending out a clear signal” (para. 323). Drawing on these findings of fact, Mr. Duquette held that Mr. Mugesera had advocated the killing of members of an identifiable group distinguished by ethnic origin, namely the Tutsi, with intent to destroy the group in part. (c) Findings in Respect of the Guilty Mind", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-45", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 96–98", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "On the issue of whether Mr. Mugesera had the requisite mental intent, Mr. Duquette found that “[s]ince he knew approximately 2,000 Tutsis had been killed since October 1, 1990, the context leaves no doubt as to his intent” (para. 323), and that “he intended specifically to provoke citizens against one another” (para. 324). The mens rea for incitement to genocide would not be made out if the finding were that Mr. Mugesera had intended to destroy, in whole or in part, members of his political opposition only. Members of a political group do not fit within the definition set out in s. 318(4) of the Criminal Code . The IAD went further than this and held that Mr. Mugesera had advocated the destruction of Tutsi, a distinct and identifiable ethnic group.\n\nIn discussing the elements of the crime, Mr. Duquette concluded that Mr. Mugesera had attempted to incite citizens to act against each other (which is an element of the offence under s. 166 of the Rwandan Penal Code). He specified that the citizens in question were “either MRND supporters against opposition parties or Hutu against Tutsi” (para. 324). This finding, coupled with the holding that Mr. Mugesera was aware of the ethnic massacres that were taking place, is sufficient to infer the necessary mental element of the crime of incitement to genocide.\n\nThe allegation of incitement to the crime of genocide is well founded. The IAD came to the correct legal conclusion on this question. (3) Incitement to Hatred (a) The Elements of Incitement to Hatred", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-46", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 99–101", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Minister alleged as a further ground for the deportation of Mr. Mugesera that he committed the crime of incitement to hatred. Section 319 of the Criminal Code proscribes this offence in the following terms: 319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of [an offence]. (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of [an offence].\n\nSection 319 creates two distinct offences in relation to the incitement of hatred against an identifiable group. Under subs. (1), an offence is committed if such hatred is incited by the communication, in a public place, of statements likely to lead to a breach of the peace. Under subs. (2), an offence is committed only by wilfully promoting hatred against an identifiable group through the communication of statements other than in private conversation. “Identifiable group” has the same meaning as in s. 318.\n\n“Promotes” means actively supports or instigates. More than mere encouragement is required: R. v. Keegstra, [1990] 3 S.C.R. 697. Within the meaning of s. 319, “hatred” connotes “emotion of an intense and extreme nature that is clearly associated with vilification and detestation”: Keegstra, at p. 777. Only the most intense forms of dislike fall within the ambit of this offence.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-47", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 102–103", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The offence does not require proof that the communication caused actual hatred. In Keegstra, this Court recognized that proving a causal link between the communicated message and hatred of an identifiable group is difficult. The intention of Parliament was to prevent the risk of serious harm and not merely to target actual harm caused. The risk of hatred caused by hate propaganda is very real. This is the harm that justifies prosecuting individuals under this section of the Criminal Code (p. 776). In the Media Case, the ICTR said that “[t]he denigration of persons on the basis of their ethnic identity or other group membership in and of itself, as well as in its other consequences, can be an irreversible harm” (para. 1072).\n\nIn determining whether the communication expressed hatred, the court looks at the understanding of a reasonable person in the context: Canadian Jewish Congress v. North Shore Free Press Ltd. (No. 7) (1997), 30 C.H.R.R. D/5 (B.C.H.R.T.), at para. 247. Although the trier of fact engages in a subjective interpretation of the communicated message to determine whether “hatred” was indeed what the speaker intended to promote, it is not enough that the message be offensive or that the trier of fact dislike the statements: Keegstra, at p. 778. In order to determine whether the speech conveyed hatred, the analysis must focus on the speech’s audience and on its social and historical context. An abstract analysis would fail to capture the speaker’s real message.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-48", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 104–106", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In a passage in R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), at pp. 384-85, cited with approval by this Court in Keegstra, Martin J.A. compared the two subsections of s. 319 and concluded that the guilty mind required by subs. (1) is something less than intentional promotion of hatred. On the other hand, the use of the word “wilfully” in subs. (2) suggests that the offence is made out only if the accused had as a conscious purpose the promotion of hatred against the identifiable group, or if he or she foresaw that the promotion of hatred against that group was certain to result and nevertheless communicated the statements. Although the causal connection need not be proven, the speaker must desire that the message stir up hatred.\n\nIn Keegstra, at p. 778, this Court found that “[t]o determine if the promotion of hatred was intended, the trier will usually make an inference as to the necessary mens rea based upon the statements made.” In many instances, evidence of the mental element will flow from the establishment of the elements of the criminal act of the offence. The speech will be such that the requisite guilty mind can be inferred.\n\nAs is the case with the crime of incitement to genocide, the crime of incitement to hatred requires the trier of fact to consider the speech objectively but with regard for the circumstances in which the speech was given, the manner and tone used, and the persons to whom the message was addressed. (b) Findings in Respect of the Criminal Act and the Guilty Mind", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-49", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 107–109", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Based on his findings of fact, Mr. Duquette concluded that the allegation of incitement to hatred was well founded. We agree. Mr. Mugesera’s speech targeted Tutsi and encouraged hatred of and violence against that group. His use of violent language and clear references to past ethnic massacres exacerbated the already vulnerable position of Tutsi in Rwanda in the early 1990s. The IAD’s analysis of the speech supports the inference that Mr. Mugesera intended to incite hatred.\n\nMr. Duquette’s findings of fact reveal that each element of the offences of incitement to murder, to hatred and to genocide has been made out. We are of the opinion that, based on the balance of probabilities, Mr. Mugesera committed the proscribed acts and is therefore inadmissible to Canada by virtue of ss. 27(1)(a.1)(ii) and 27(1)(a.3)(ii) of the Immigration Act. To this extent, we disagree with the reasons of the FCA on this subject.\n\nThe FCA erred in adopting the reasonable observer standard from Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85, and Société St‑Jean-Baptiste de Montréal v. Hervieux-Payette, [2002] R.J.Q. 1669 (C.A.). It failed to acknowledge that the audience to which a speech is addressed is a relevant factor in determining the nature of the speech itself. If the manner in which the audience is likely to perceive the speech is not taken into account, the harm targeted by these offences may not be prevented.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-50", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 110–112", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The FCA’s conclusions were predicated upon its own interpretation of the speech. Because he attributed a purely political nature to the speech, Décary J.A. found that it did not incite hatred or genocide: In the case at bar, for the reasons I have given above, the message communicated by Mr. Mugesera is not, objectively speaking — that is, after analysing the speech and its context as a whole — a message inciting to murder, hatred or genocide. Nor is it such a message subjectively speaking, as there is nothing in the evidence to suggest that Mr. Mugesera intended under cover of a bellicose speech, that would be justified in the circumstances, to impel toward racism and murder an audience which he knew would be inclined to take that route. There is simply no evidence, on a balance of probabilities, that Mr. Mugesera had any guilty intent. [para. 210]\n\nThe FCA failed to take account of the nature of the target audience, which is an important contextual factor, and consequently erred in relying on an abstract “reasonable listener”. This led it to err in its characterization of the nature of the speech. As a result, the FCA erred in law in finding that the speech of November 22, 1992 did not constitute an incitement to murder, genocide, or hatred. C. Crimes Against Humanity\n\nHaving concluded that the FCA improperly substituted its own findings of fact for those of the IAD and failed to consider the appropriate legal test in characterizing Mr. Mugesera’s speech, we must now move to the final issue raised on this appeal: whether there are reasonable grounds to believe that Mr. Mugesera committed a crime against humanity and is therefore inadmissible to Canada by virtue of s. 19(1)(j) of the Immigration Act. This ground is raised by the Minister’s allegation C.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-51", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 113–114", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 19(1)(j) of the Immigration Act provides: 19. (1) No person shall be granted admission who is a member of any of the following classes: . . . (j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission. Section 19(1)(j) therefore requires that we consider two essential questions in this case. First, what is meant by “reasonable grounds to believe”? Second, what is a crime against humanity within the meaning of ss. 7(3.76) and 7(3.77) of the Criminal Code ? What are the elements of this crime? (1) The Standard of Proof: Reasonable Grounds to Believe\n\nThe first issue raised by s. 19(1)(j) of the Immigration Act is the meaning of the evidentiary standard that there be “reasonable grounds to believe” that a person has committed a crime against humanity. The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities: Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), at p. 445; Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.), at para. 60. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information: Sabour v. Canada (Minister of Citizenship & Immigration) (2000), 9 Imm. L.R. (3d) 61 (F.C.T.D.).", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-52", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 115–116", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In imposing this standard in the Immigration Act in respect of war crimes and crimes against humanity, Parliament has made clear that these most serious crimes deserve extraordinary condemnation. As a result, no person will be admissible to Canada if there are reasonable grounds to believe that he or she has committed a crime against humanity, even if the crime is not made out on a higher standard of proof.\n\nWhen applying the “reasonable grounds to believe” standard, it is important to distinguish between proof of questions of fact and the determination of questions of law. The “reasonable grounds to believe” standard of proof applies only to questions of fact: Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), at p. 311. This means that in this appeal the standard applies to whether Mr. Mugesera gave the speech, to the message it conveyed in a factual sense and to the context in which it was delivered. On the other hand, whether these facts meet the requirements of a crime against humanity is a question of law. Determinations of questions of law are not subject to the “reasonable grounds to believe” standard, since the legal criteria for a crime against humanity will not be made out where there are merely reasonable grounds to believe that the speech could be classified as a crime against humanity. The facts as found on the “reasonable grounds to believe” standard must show that the speech did constitute a crime against humanity in law.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-53", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 117", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The evidence reviewed and relied upon by Mr. Duquette of the IAD clearly meets the “reasonable grounds to believe” standard in that it consists of compelling and credible information that provides an objective basis for his findings of fact. Based on these findings of fact, therefore, we must determine the question of law raised by s. 19(1)(j) of the Immigration Act in this case: whether the facts as found on the reasonable grounds to believe standard show that the speech did constitute a crime against humanity in law. (2) The Elements of a Crime Against Humanity", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-54", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 118", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the time relevant to this appeal, crimes against humanity were defined in and proscribed by ss. 7(3.76) and 7(3.77) of the Criminal Code , which provided: 7. . . . (3.76) For the purposes of this section, . . . “crime against humanity” means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations; . . . (3.77) In the definitions “crime against humanity” and “war crime” in subsection (3.76), “act or omission” includes, for greater certainty, attempting or conspiring to commit, counselling any person to commit, aiding or abetting any person in the commission of, or being an accessory after the fact in relation to, an act or omission. Sections 7(3.76) and 7(3.77) of the Criminal Code have since been repealed. Crimes against humanity are now defined in and proscribed by ss. 4 and 6 of the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 . Those sections define crimes against humanity in a manner which differs slightly from the definition in the sections of the Criminal Code relevant to this appeal. However, the differences are not material to the discussion that follows.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-55", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 119–121", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "As we shall see, based on the provisions of the Criminal Code and the principles of international law, a criminal act rises to the level of a crime against humanity when four elements are made out: 1. An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act); 2. The act was committed as part of a widespread or systematic attack; 3. The attack was directed against any civilian population or any identifiable group of persons; and 4. The person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack.\n\nDespite relying on essentially the same authorities, the lower courts and the tribunal in this appeal were inconsistent in their identification and application of the elements of a crime against humanity under s. 7(3.76) of the Criminal Code . We will now briefly review their views on these questions.\n\nFor the IAD, Mr. Duquette, relying on this Court’s decision in R. v. Finta, [1994] 1 S.C.R. 701, found that a crime against humanity must be committed against a civilian population or an identifiable group, must be cruel and must shock the conscience of all right-thinking people (para. 335). He also held that the individual who commits the crime must be aware of the circumstances which render the act inhumane and must be motivated by discriminatory intent (paras. 337-38). To these requirements, he added, relying on Sivakumar, that crimes against humanity must occur on a widespread and systematic basis (para. 339).", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-56", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 122–123", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Applying these principles to the facts, Mr. Duquette concluded that counselling murder, even where no murder is subsequently committed, is sufficient to constitute a crime against humanity, particularly where murders have been happening on a widespread and systematic basis (para. 344). In his opinion, Mr. Mugesera had acted with discriminatory intent, and was an educated man who was aware of his country’s history, the current political situation and the fact that civilians were being massacred (para. 338). He was therefore aware of the circumstances which rendered his speech a crime against humanity.\n\nNadon J., reviewing the IAD’s decision, did not elaborate on the elements of a crime against humanity. He limited his consideration of the issue to finding that Mr. Duquette had erred in law because Mr. Mugesera’s counselling of murder and incitement to hatred, absent proof that actual murders had ensued, was not sufficiently “cruel and terrible” to constitute a crime against humanity (paras. 55-56). Nadon J. relied on this Court’s decision in Finta, at p. 814, to support the proposition that the alleged acts must show an added degree of inhumanity.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-57", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 124–125", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Décary J.A., for the FCA, who apparently also drew on Finta and Sivakumar, reached an entirely different outcome, both on the law and on its application to the facts. He found that a crime against humanity must occur in the context of a widespread or systematic attack directed against a civilian population with discriminatory intent (para. 57). Having set aside the IAD’s findings of fact, he concluded that there was no evidence that the speech had taken place in the context of a widespread or systematic attack, since the massacres which had occurred to that point were not part of a common plan and since there was no evidence that Mr. Mugesera’s speech was part of an overall strategy of attack (para. 58).\n\nThe decisions below leave no doubt as to the existence of a great deal of confusion about the elements of a crime against humanity. Though this Court has commented on the issue in the past, most notably in Finta, it is apparent that further clarification is needed.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-58", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 126–127", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Since Finta was rendered in 1994, a vast body of international jurisprudence has emerged from the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the ICTR. These tribunals have generated a unique body of authority which cogently reviews the sources, evolution and application of customary international law. Though the decisions of the ICTY and the ICTR are not binding upon this Court, the expertise of these tribunals and the authority in respect of customary international law with which they are vested suggest that their findings should not be disregarded lightly by Canadian courts applying domestic legislative provisions, such as ss. 7(3.76) and 7(3.77) of the Criminal Code , which expressly incorporate customary international law. Therefore, to the extent that Finta is in need of clarification and does not accord with the jurisprudence of the ICTY and the ICTR, it warrants reconsideration.\n\nCrimes against humanity, like all crimes, consist of two elements: (1) a criminal act; and (2) a guilty mind. Each must be considered. (a) The Criminal Act of a Crime Against Humanity", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-59", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 128–129", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "It can be seen from s. 7(3.76) of the Criminal Code that the criminal act (actus reus) of a crime against humanity consists in the commission of one of the enumerated proscribed acts which contravenes customary or conventional international law or is criminal according to the general principles of law recognized by the community of nations. The requirement that the enumerated proscribed acts contravene international law concerns the context in which the enumerated acts occur. According to customary international law, a proscribed act will constitute a crime against humanity where it is committed as part of a widespread or systematic attack directed against any civilian population. Therefore, the criminal act of a crime against humanity is made up of three essential elements: (1) one of the enumerated proscribed acts is committed; (2) the act occurs as part of a widespread or systematic attack; and (3) the attack is directed against any civilian population or any identifiable group. We will consider each element in turn. (i) The Proscribed Act\n\nThe proscribed acts listed in s. 7(3.76) of the Criminal Code provide a first and essential requirement for a crime against humanity: an “underlying offence” must be committed. In essence, the listed acts represent the different ways in which a crime against humanity can be committed. This means that various acts may become crimes against humanity as long as the other elements of the offence are met. In s. 7(3.76) those crimes are murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-60", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 130–131", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Establishing an enumerated act involves showing that both the physical element and the mental element of the underlying act have been made out. For instance, where the accused is charged with murder as a crime against humanity, the accused must (1) have caused the death of another person, and (2) have intended to cause the person’s death or to inflict grievous bodily harm that he or she knew was likely to result in death. Once this has been established, the court will go on to consider whether the murder was committed in the context of a widespread or systematic attack directed against a civilian population or an identifiable group; this requirement is discussed more fully below.\n\nThe question we must now consider is whether, as alleged by the Minister, Mr. Mugesera’s speech satisfies the initial criminal act requirement for a crime against humanity. We have found that the speech counselled murders which were not committed and incited hatred and genocide. This raises two issues: whether counselling a murder that is not committed meets the initial criminal act requirement for murder as a crime against humanity and whether speech inciting hatred meets the initial criminal act requirement for persecution as a crime against humanity. 1. Counselling an Enumerated Act That Is Not Committed and Murder as a Crime Against Humanity", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-61", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 132–133", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The first question raised on the facts of this appeal is whether the fact that Mr. Mugesera counselled the commission of murders that were not committed meets the initial criminal act requirement for a crime against humanity. Section 7(3.77) of the Criminal Code provides that “counselling” an act listed in s. 7(3.76) will be sufficient to meet the requirement. Murder is one of the acts listed in s. 7(3.76). Mr. Duquette found, as a matter of fact, that Mr. Mugesera’s speech counselled the commission of murders. His findings of fact are sufficient to conclude, as discussed above, that Mr. Mugesera satisfied both the physical and mental elements of the “underlying offence” of counselling a murder that is not committed.\n\nThis does not end our analysis, however. As we noted above, s. 7(3.76) expressly incorporates principles of customary international law into the domestic formulation of crimes against humanity. We must therefore go further and consider whether the prevailing principles of international law accord with our initial analysis. A review of the jurisprudence of the ICTY and the ICTR suggests that it does not.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-62", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 134–135", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The statutes of the ICTY and the ICTR (U.N. Doc. S/RES/827 (1993) and U.N. Doc. S/RES/955 (1994), respectively) do not use the word “counselling”. This does not mean, however, that the decisions of these courts cannot be informative as to the requirements for counselling as a crime against humanity. Both statutes provide that persons who “instigate” the commission of a proscribed act may be liable under international law. This Court found in Sharpe, at para. 56, that counselling refers to active inducement or encouragement from an objective point of view. The ICTR has found that instigation “involves prompting another to commit an offence”: Akayesu, Trial Chamber, at para. 482. The two terms are clearly related. As a result, we may look to the jurisprudence of the ICTY and the ICTR on instigation in determining whether counselling an offence that is not committed will be sufficient to satisfy the initial criminal act requirement for a crime against humanity under s. 7(3.76) of the Criminal Code .\n\nIn Prosecutor v. Rutaganda, Case No. ICTR-96-3-T (Trial Chamber I), 6 December 1999, the ICTR conducted a review of the jurisprudence of the ICTY and the ICTR on individual criminal responsibility. The ICTR found that instigation (other than of genocide) involves (1) direct and public incitement to commit a proscribed act; but (2) only where it has led to the actual commission of the instigated offence: para. 38; see also Akayesu, Trial Chamber, at para. 482. It should be noted that the second requirement does not mean that the offence would not have been committed “but for” the instigation. However, a sufficient causal link must be made out: Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T (ICTY, Trial Chamber III), 26 February 2001, at para. 387.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-63", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 136–139", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Duquette of the IAD was unable to find that the commission of murders had actually occurred as a result of Mr. Mugesera’s counselling. An interpretation of ss. 7(3.76) and 7(3.77) of the Criminal Code in light of customary international law shows that Mr. Mugesera’s counselling of murder was not sufficient to satisfy the initial criminal act requirement for a crime against humanity. 2. Speech That Incites Hatred and Persecution as a Crime Against Humanity\n\nAs discussed above, the facts on this appeal raise a second question: can a speech that incites hatred, which as we have seen Mr. Mugesera’s speech did, meet the initial criminal act requirement for persecution as a crime against humanity? Once again, the express incorporation of customary international law into s. 7(3.76) suggests that we should consider the jurisprudence of the ICTY and the ICTR in formulating an answer.\n\nBoth the ICTR and the ICTY have approached the question of speech inciting hatred as relating to the enumerated act of “persecution”. Persecution is expressly listed in s. 7(3.76) of the Criminal Code as one of the underlying acts which, in the appropriate circumstances, may constitute a crime against humanity.\n\nDetermining whether an act constitutes persecution can be difficult. Persecution, unlike the other acts enumerated in s. 7(3.76), is not a stand-alone crime in Canadian law or in the legal systems of other countries: M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed. 1999), at p. 327. In contrast with murder, for instance, it is not evident from our domestic law what types of acts will constitute persecution.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-64", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 140–141", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "As a result, both the physical and mental elements (criminal act and guilty mind) of persecution have been considered at great length by the ICTY and the ICTR. In considering the criminal act of persecution in Prosecutor v. Tadic, 112 ILR 1 (Trial Chamber II 1997), the ICTY, having reviewed the relevant jurisprudence and academic commentary, found that persecution “is some form of discrimination [on traditionally recognized grounds such as race, religion, or politics] that is intended to be and results in an infringement of an individual’s fundamental rights” (para. 697).\n\nA danger arises, however, that the criminal act of persecution, as so defined, might apply to acts that are far less serious than the other forms of crimes against humanity. Crimes against humanity should not be trivialized by applying the concept to fact situations which do not warrant the full opprobrium of international criminal sanction. Thus, the ICTY found in Prosecutor v. Kupreskic, Case No. IT-95-16-T (Trial Chamber II) 14 January 2000, that the alleged persecution, in order to satisfy the criminal act requirement, must reach the same level of gravity as the other enumerated underlying acts. Persecution as a crime against humanity must constitute a “gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited” (para. 621).", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-65", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 142–143", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Turning to the requisite mental element for persecution, we find that the accused must have intended to commit the persecutory acts and must have committed them with discriminatory intent. The requirement for discriminatory intent is unique to persecution and need not be shown in respect of the other forms of crimes against humanity (e.g., murder). This point was made persuasively in the appeal from the Trial Chamber’s decision in Tadic, in which the Appeals Chamber of the ICTY conducted a thorough review of the international law principles on discriminatory intent and crimes against humanity in reaching a conclusion that the discriminatory intent requirement is unique to crimes against humanity which take the form of persecution: 124 ILR 61 (1999), at paras. 287-92.\n\nThe ICTR too has concluded that discriminatory intent is relevant only to persecution: Prosecutor v. Akayesu, Case No. ICTR-96-4-A (Appeals Chamber), 1 June 2001, at paras. 460-69. This is particularly significant since crimes against humanity as defined in art. 3 of the ICTR statute must be committed as part of a widespread and systematic attack against any civilian population “on national, political, ethnic, racial or religious grounds”. In this respect, the judgment of our Court in Finta appears to be inconsistent with the recent jurisprudence of the ICTR and the ICTY. The close relationship between our domestic law and international law on this question mandates that the nature and definition of crimes against humanity should be closely aligned with the jurisprudence of the international criminal courts.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-66", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 144–146", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "We see no reason to depart from the well-reasoned and persuasive findings of the ICTY and the ICTR on the question of discriminatory intent. Insofar as Finta suggested that discriminatory intent was required for all crimes against humanity (see Finta, at p. 813), it should no longer be followed on this point.\n\nWe conclude from the preceding discussion that the criminal act of persecution is the gross or blatant denial of a fundamental right on discriminatory grounds. The guilty mental state is discriminatory intent to deny the right. The following question remains to be answered: Was Mr. Mugesera’s speech a gross or blatant denial of fundamental rights on discriminatory grounds such that it was equal in gravity to the other acts enumerated in s. 7(3.76)?\n\nThe ICTR and the ICTY have both considered whether hate speech can ever satisfy the criminal act requirement for persecution. In one prominent case, the ICTR found that it was “evident” that hate speech targeting a population on the basis of ethnicity, or other discriminatory grounds was equal in gravity to the other enumerated acts: Media Case, at para. 1072. The ICTY, on the other hand, found in Kordic that the hate speech alleged in the indictment did not constitute persecution because it did not rise to the same level of gravity as the other enumerated acts (para. 209). The Trial Chamber distinguished hate speech that could properly form the basis of a crime against humanity from the hate speech alleged in the indictment, which fell short of incitement to murder, extermination, and genocide (footnote 272). The guiding concern must therefore always be whether the alleged persecutory act reaches the level of a gross or blatant denial of fundamental rights equivalent in gravity to the other enumerated acts.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-67", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 147", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Keegstra, this Court found that the harm in hate speech lies not only in the injury to the self-dignity of target group members but also in the credence that may be given to the speech, which may promote discrimination and even violence (p. 748). This finding suggests that hate speech always denies fundamental rights. The equality and the life, liberty and security of the person of target-group members cannot but be affected: see, e.g., Prosecutor v. Ruggiu, 39 ILM 1338 (ICTR, Trial Chamber I 2000), at para. 22. This denial of fundamental rights may, in particular instances, reach the level of a gross or blatant denial equal in gravity to the other acts enumerated in s. 7(3.76). This is particularly likely if the speech openly advocates extreme violence (such as murder or extermination) against the target group, but it may not be limited to such instances. In contrast to the case of counselling an enumerated violent act, whether the persecution actually results in the commission of acts of violence is irrelevant: Media Case, at para. 1073.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-68", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 148–149", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "What then can be said of Mr. Mugesera’s speech? Mr. Duquette found as a matter of fact that Mr. Mugesera’s speech had incited hatred of Tutsi and of his political opponents (para. 335). This incitement included the encouragement of acts of extreme violence, such as extermination (para. 336). Keeping in mind that acts of persecution must be evaluated in context, Mr. Duquette’s finding that Mr. Mugesera’s speech occurred in a volatile situation characterized by rampant ethnic tensions and political instability which had already led to the commission of massacres is also compelling (paras. 335-38). A speech such as Mr. Mugesera’s, which actively encouraged ethnic hatred, murder and extermination and which created in its audience a sense of imminent threat and the need to act violently against an ethnic minority and against political opponents, bears the hallmarks of a gross or blatant act of discrimination equivalent in severity to the other underlying acts listed in s. 7(3.76). The criminal act requirement for persecution is therefore met.\n\nHaving concluded that the criminal act requirement for persecution is made out, we must go on to consider whether the culpable mental element of persecution is made out. Mr. Duquette found that Mr. Mugesera had a discriminatory intent in delivering his speech (para. 335). He found that Mr. Mugesera targeted Tutsi and political opponents on the sole basis of ethnicity and political affiliation with the intent to compel his audience into action against these groups. The IAD’s findings of fact thus amply support a finding that Mr. Mugesera not only committed the criminal act of persecution, but did so with the requisite discriminatory intent.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-69", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 150", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In sum, the criminal act requirement for a crime against humanity under ss. 7(3.76) and 7(3.77) of the Criminal Code contains two primary elements: (1) the accused has committed an underlying enumerated act; and (2) that act contravened international law. With respect to the first element, both the physical and mental elements of the underlying act must be made out. In the case at bar, there were two possible underlying acts: counselling of murder, and persecution by hate speech. For counselling of murder to be considered a crime against humanity under international law, murders must actually have been committed. Mr. Duquette’s finding that no murders were proven to have resulted from the speech therefore precludes a finding that Mr. Mugesera counselled murder within the meaning of s. 7(3.76). The other possible underlying act, persecution, is a gross or blatant denial of fundamental rights on discriminatory grounds equal in severity to the other acts enumerated in s. 7(3.76). Hate speech, particularly when it advocates egregious acts of violence, may constitute persecution. In this case, it does. (ii) The Act Contravenes Customary or Conventional International Law or Is Criminal According to the General Principles of Law Recognized by the Community of Nations", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-70", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 151–152", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "We now turn to the second element of the criminal act requirement for a crime against humanity: that the proscribed act contravene international law. The second element of the criminal act requirement for crimes against humanity concerns the context in which the first element, the enumerated act, takes place. Customary international law tells us that the enumerated acts will become crimes against humanity if they are committed as part of a widespread or systematic attack directed against any civilian population or any identifiable group. This additional contextual requirement is what distinguishes a crime against humanity from an ordinary crime: Tadic, Trial Chamber, at paras. 648 and 653; see also G. Mettraux, “Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda” (2002), 43 Harv. Int’l L.J. 237, at p. 244.\n\nIn order to determine whether there are reasonable grounds to believe that Mr. Mugesera’s act of persecution constituted a crime against humanity, we must therefore consider whether the speech was part of a widespread or systematic attack directed against a civilian population. Since this requirement is dictated entirely by customary international law, the jurisprudence of the ICTY and the ICTR is again very relevant. 1. What Is a Widespread or Systematic Attack?", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-71", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 153–154", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "An “attack” may be “a course of conduct involving the commission of acts of violence”: Prosecutor v. Kunarac, Kovac and Vukovic, Case Nos. IT-96-23-T & IT-96-23/1-T (ICTY, Trial Chamber II), 22 February 2001, at para. 415. It may also be a course of conduct that is not characterized by the commission of acts of violence if it involves the imposition of a system such as apartheid, or the exertion on the population of pressure to act in a particular manner that is orchestrated on a massive scale or in a systematic manner: Akayesu, Trial Chamber, at para. 581. It is fair to say, however, that in most instances, an attack will involve the commission of acts of violence. This definition aptly conveys the idea that the existence of an attack does not presuppose armed conflict (though it does not preclude armed conflict).\n\nA widespread attack “may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims” — it need not be carried out pursuant to a specific strategy, policy or plan: Akayesu, Trial Chamber, at para. 580; and Prosecutor v. Kayishema, Case No. ICTR‑95‑1-T (Trial Chamber II), 21 May 1999, at para. 123. It may consist of a number of acts or of one act of great magnitude: Mettraux, at p. 260.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-72", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 155–156", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "A systematic attack is one that is “thoroughly organised and follow[s] a regular pattern on the basis of a common policy involving substantial public or private resources” and is “carried out pursuant to a . . . policy or plan”, although the policy need not be an official state policy and the number of victims affected is not determinative: Akayesu, Trial Chamber, at para. 580; and Kayishema, at para. 123. As noted by the ICTY’s Trial Chamber in Kunarac, at para. 429: “The adjective ‘systematic’ signifies the organised nature of the acts of violence and the improbability of their random occurrence. Patterns of crimes — that is the non‑accidental repetition of similar criminal conduct on a regular basis — are a common expression of such systematic occurrence.”\n\nAn attack need be only widespread or systematic to come within the scope of s. 7(3.76), not both: Tadic, Trial Chamber, at para. 648; Kayishema, at para. 123. The widespread or systematic nature of the attack will ultimately be determined by examining the means, methods, resources and results of the attack upon a civilian population: Kunarac, at para. 430. Only the attack needs to be widespread or systematic, not the act of the accused. The IAD, relying on Sivakumar, appears to have confused these notions, and to the extent that it did, it erred in law. Even a single act may constitute a crime against humanity as long as the attack it forms a part of is widespread or systematic and is directed against a civilian population: Prosecutor v. Mrksic, Radic and Sljivancanin, 108 ILR 53 (ICTY, Trial Chamber I 1996), at para. 30.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-73", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 157–158", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "A contentious issue raised by the “widespread or systematic attack” requirement is whether the attack must be carried out pursuant to a government policy or plan. Some scholars suggest that limiting crimes against humanity to attacks which implement a government policy is necessary due to the nature and scale of such crimes: see, e.g., Bassiouni, at pp. 243-46. Others point out that the existence of a government policy has never been required and suggest that crimes against humanity take on their international character simply by virtue of the existence of a widespread and systematic attack: see, e.g., Mettraux, at pp. 270-82.\n\nThe Appeals Chamber of the ICTY held in Prosecutor v. Kunarac, Kovac and Vukovic that there was no additional requirement for a state or other policy behind the attack: Case Nos. IT-96-23-A & IT-96-23/1-A, 12 June 2002, at para. 98. The Appeals Chamber acknowledged that the existence of such a policy might be useful in establishing that the attack was directed against a civilian population or that it was widespread or systematic (particularly the latter). However, the existence of a policy or plan would ultimately be useful only for evidentiary purposes and it does not constitute a separate element of the offence (para. 98). It seems that there is currently no requirement in customary international law that a policy underlie the attack, though we do not discount the possibility that customary international law may evolve over time so as to incorporate a policy requirement (see, e.g., art. 7(2)(a) of the Rome Statute of the International Criminal Court, A/CONF. 183/9, 17 July 1998).", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-74", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 159", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Considering all these factors, was a widespread or systematic attack taking place when Mr. Mugesera gave his speech? With respect to whether the attack was widespread, Mr. Duquette found that, between October 1, 1990 and November 22, 1992, almost 2,000 Tutsi were massacred in Rwanda (para. 336). Mr. Duquette also found as a fact that in October 1990 approximately 8,000 people, 90 percent of them Tutsi, were falsely arrested on suspicion of complicity with the RPF (para. 26). The massacres occurred in various parts of the country and the number of victims grew to the thousands. This suggests a large-scale action directed against a multiplicity of victims.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-75", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 160–161", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In any event, it is unnecessary to decide whether the attack was widespread because the facts as found by Mr. Duquette support the conclusion that it was, at the very least, systematic. Mr. Duquette found as a fact that the Rwandan government staged a military attack on Kigali which served to justify the arrest of and continued violence against Tutsi and against political opponents (para. 255). According to Mr. Duquette, a pattern of massacres, sometimes participated in and overtly encouraged by MRND officials and the military, began in 1990 and was still under way when Mr. Mugesera gave his speech (para. 50). As discussed above, a pattern of victimizing behaviour, particularly one which is sanctioned or carried out by the government or the military, will often be sufficient to establish that the attack took place pursuant to a policy or plan and was therefore systematic. There was an unmistakable policy of attacks, persecution and violence against Tutsi and moderate Hutu in Rwanda at the time of Mr. Mugesera’s speech. Mr. Mugesera’s act of persecution therefore took place in the context of a systematic attack. 2. What Does It Mean for the Attack to Be “Directed Against Any Civilian Population”?\n\nThe mere existence of a systematic attack is not sufficient, however, to establish a crime against humanity. The attack must also be directed against a civilian population. This means that the civilian population must be “the primary object of the attack”, and not merely a collateral victim of it: Kunarac, Trial Chamber, at para. 421. The term “population” suggests that the attack is directed against a relatively large group of people who share distinctive features which identify them as targets of the attack: Mettraux, at p. 255.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-76", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 162–164", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "A prototypical example of a civilian population would be a particular national, ethnic or religious group. Thus, for instance, the target populations in the former Yugoslavia were identifiable on ethnic and religious grounds. It is notable that the fact that non-civilians also form part of the group will not change the character of the population as long as it remains largely civilian in nature: Prosecutor v. Blaskic, 122 ILR 1 (ICTY, Trial Chamber I 2000), at para. 211.\n\nThe Tutsi and moderate Hutu, two groups that were ethnically and politically identifiable, were a civilian population as this term is understood in customary international law. Mr. Duquette’s findings of fact leave no doubt that the ongoing systematic attack was directed against them. For these reasons, we agree that at the time of Mr. Mugesera’s speech, a systematic attack directed against a civilian population was taking place in Rwanda. 3. What Does It Mean for an Act to Occur “as Part of” a Systematic Attack?\n\nAs we have seen, the existence of a widespread or systematic attack helps to ensure that purely personal crimes do not fall within the scope of provisions regarding crimes against humanity. However, because personal crimes are committed in all places and at all times, the mere existence of a widespread or systematic attack will not be sufficient to exclude them. To ensure their exclusion, a link must be demonstrated between the act and the attack which compels international scrutiny. For this reason, we must explore what it means for an act to occur “as part of” a widespread or systematic attack and determine whether Mr. Mugesera’s speech was indeed “a part of” the systematic attack occurring in Rwanda in the early 1990s.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-77", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 165–167", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The requirement for a link between the act and the attack may be expressed in many ways. For instance, “in the context of” or “forming a part of” are common wordings. These phrases require that the accused’s acts “be objectively part of the attack in that, by their nature or consequences, they are liable to have the effect of furthering the attack”: Mettraux, at p. 251. In Tadic, the Appeals Chamber of the ICTY found that the acts of the accused must “comprise part of a pattern” of widespread or systematic abuse of civilian populations or must objectively further the attack (para. 248).\n\nTo say that an act must be part of a pattern of abuse or must objectively further the attack does not mean that no personal motive for the underlying act can exist. The presence of a personal motive does not change the nature of the question, which remains an objective one: is the act part of a pattern of abuse or does it further the attack?\n\nAlso, and this is particularly relevant given the findings of Décary J.A. for the FCA in this case, the proscribed act need not be undertaken as a particular element of a strategy of attack. In essence, the act must further the attack or clearly fit the pattern of the attack, but it need not comprise an essential or officially sanctioned part of it. Thus, in Kunarac, where the three accused took advantage of a widespread and systematic attack to rape and sexually torture Muslim women and girls, the nexus requirement was made out: Trial Chamber, at para. 592. The accused knew of the attack, their acts furthered the attack directed against the Muslim population of Foca and they contributed to a pattern of attack against that population.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-78", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 168–169", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "These legal principles make it clear that Décary J.A. erred in law when he suggested that a crime against humanity could not be made out because Mr. Mugesera’s speech was not part of a “strategy” (para. 58). However, we must still consider whether Mr. Mugesera’s speech objectively furthered the attack or fit into its pattern.\n\nMr. Duquette found as a fact that Mr. Mugesera’s speech had targeted Tutsi and moderate Hutu (para. 335). Tutsi and moderate Hutu were the targets of the systematic attack taking place in Rwanda at the time. A persecutory speech which encourages hatred and violence against a targeted group furthers an attack against that group. Also relevant is geographical proximity. Mr. Duquette found that many of the massacres perpetrated in Rwanda between 1990 and 1993 had occurred in and around Gisenyi prefecture, where the speech was given (paras. 26 and 50). He also noted that local MRND officials had participated in and encouraged the targeting of Tutsi and moderate Hutu. Mr. Mugesera’s speech therefore not only objectively furthered the attack, but also fit into a pattern of abuse prevailing at that time. We therefore conclude that Mr. Mugesera’s speech was “a part of” a systematic attack directed against a civilian population that was occurring in Rwanda at the time.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-79", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 170–172", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In sum, we have seen that the criminal act requirement for crimes against humanity in ss. 7(3.76) and 7(3.77) is made up of three essential elements: (1) a proscribed act is carried out; (2) the act occurs as part of a widespread or systematic attack; and (3) the attack is directed against any civilian population. The first element means that all the elements of an enumerated act — both physical and moral — must be made out. The second and third elements require that the act take place in a particular context: a widespread or systematic attack directed against any civilian population. Each of these elements has been made out in Mr. Mugesera’s case.\n\nHowever, as noted above, making out the criminal act of a crime against humanity will not necessarily imply that there are reasonable grounds to believe that Mr. Mugesera has committed a crime against humanity. Mr. Mugesera must also have had a guilty mind. As a result, we must now go on to consider the mental element of s. 7(3.76) of the Criminal Code . (b) The Guilty Mind for Crimes Against Humanity\n\nWe have seen that an individual accused of crimes against humanity must possess the required guilty state of mind in respect of the underlying proscribed act. We have also underlined that, contrary to what was said in Finta, discriminatory intent need not be made out in respect of all crimes against humanity, but only in respect of those which take the form of persecution. This leaves a final question: in addition to the mental element required for the underlying act, what is the mental element required to make out a crime against humanity under s. 7(3.76) of the Criminal Code ?", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-80", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 173–174", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The question of whether a superadded mental element exists for crimes against humanity was a point of significant contention in Finta. Cory J., for the majority, found that the accused must have an awareness of the facts or circumstances which would bring the act within the definition of a crime against humanity (p. 819). La Forest J. penned dissenting reasons suggesting that establishing the mental element for the underlying act was sufficient in itself and thus no additional element of moral blameworthiness was required (p. 754). At the time, there was little international jurisprudence on the question. It is now well settled that in addition to the mens rea for the underlying act, the accused must have knowledge of the attack and must know that his or her acts comprise part of it or take the risk that his or her acts will comprise part of it: see, e.g., Tadic, Appeals Chamber, at para. 248; Ruggiu, at para. 20; Kunarac, Trial Chamber, at para. 434; Blaskic, at para. 251.\n\nIt is important to stress that the person committing the act need only be cognizant of the link between his or her act and the attack. The person need not intend that the act be directed against the targeted population, and motive is irrelevant once knowledge of the attack has been established together with knowledge that the act forms a part of the attack or with recklessness in this regard: Kunarac, Appeals Chamber, at para. 103. Even if the person’s motive is purely personal, the act may be a crime against humanity if the relevant knowledge is made out.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-81", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 175–176", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Knowledge may be factually implied from the circumstances: Tadic, Trial Chamber, at para. 657. In assessing whether an accused possessed the requisite knowledge, the court may consider the accused’s position in a military or other government hierarchy, public knowledge about the existence of the attack, the scale of the violence and the general historical and political environment in which the acts occurred: see, e.g., Blaskic, at para. 259. The accused need not know the details of the attack: Kunarac, Appeals Chamber, at para. 102.\n\nIn Finta, the majority of this Court found that subjective knowledge on the part of the accused of the circumstances rendering his or her actions a crime against humanity was required (p. 819). This remains true in the sense that the accused must have knowledge of the attack and must know that his or her acts are part of the attack, or at least take the risk that they are part of the attack.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-82", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "paras 177–179", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Returning to the case at bar, the findings of the IAD leave no doubt that Mr. Mugesera possessed the culpable mental state required by s. 7(3.76) of the Criminal Code . Mr. Duquette found that Mr. Mugesera was a well-educated man who was aware of his country’s history and of past massacres of Tutsi (para. 338). He was aware of the ethnic tensions in his country and knew that civilians were being killed merely by reason of ethnicity or political affiliation (para. 338). Moreover, Mr. Duquette found that the speech itself left no doubt that Mr. Mugesera knew of the violent and dangerous state of affairs in Rwanda in the early 1990s (para. 338). These findings of fact clearly show that Mr. Mugesera was aware of the attack occurring against Tutsi and moderate Hutu. Furthermore, a man of his education, status and prominence on the local political scene would necessarily have known that a speech vilifying and encouraging acts of violence against the target group would have the effect of furthering the attack.\n\nIn the face of certain unspeakable tragedies, the community of nations must provide a unified response. Crimes against humanity fall within this category. The interpretation and application of Canadian provisions regarding crimes against humanity must therefore accord with international law. Our nation’s deeply held commitment to individual human dignity, freedom and fundamental rights requires nothing less.\n\nBased on Mr. Duquette’s findings of fact, each element of the offence in s. 7(3.76) of the Criminal Code has been made out. We are therefore of the opinion that reasonable grounds exist to believe that Mr. Mugesera committed a crime against humanity and is therefore inadmissible to Canada by virtue of ss. 27(1)(g) and 19(1)(j) of the Immigration Act. VI. Disposition", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-2273-83", - "doc_type": "caselaw", - "act_code": "2005 SCC 40", - "act_short": "Mugesera", - "act_name": "Mugesera v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40", - "marginal_note": "para 180", - "heading": "Inadmissibility for crimes against humanity; incitement to genocide and the elements of the offence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appeal is allowed. The deportation order of July 11, 1996 in respect of Mr. Léon Mugesera is held to be valid on the grounds stated above. There will be no order as to costs.", - "current_to": "2005-06-28", - "last_amended": "", - "history": "[2005] 2 SCR 100", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2273/index.do" - }, - { - "id": "scc-13643-1", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 1–3", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Chief Justice ― The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (collectively “the ministers”) seek to have Mohamed Harkat, a non-citizen, declared inadmissible to Canada. Mr. Harkat is alleged to have come to Canada for the purpose of engaging in terrorism. He has been detained, or living under strict conditions, for over a decade. He potentially faces deportation to a country where he may be at risk of torture or death, although the constitutionality of his deportation in such circumstances is not before us in the present appeal.\n\nThe reasonableness of the ministers’ decision to declare Mr. Harkat inadmissible to Canada is subject to judicial review, under Division 9 of Part 1 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “IRPA scheme”). This scheme prevents Mr. Harkat from seeing some of the evidence and information tendered against him, because its public disclosure would harm national security.\n\nThe issue in this appeal is whether the IRPA scheme complies with the Constitution, in particular the guarantee in the Canadian Charter of Rights and Freedoms against unjustifiable intrusions on life, liberty, and security of the person. More specifically, this appeal asks whether the IRPA scheme gives Mr. Harkat a fair opportunity to defend himself against the allegations made by the ministers, despite the fact that national security considerations prevent him from seeing the entire record and from personally participating in all of the hearings. It requires us to determine how far the principle of full disclosure in an open court can be qualified in order to address the threat posed by non-citizens who may be involved in terrorism.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-2", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 4–6", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "I conclude that that the IRPA scheme is constitutional. Crafting a regime that achieves a fundamentally fair process while protecting confidential national security information is a difficult task. The scheme must apply to a broad range of cases, implicating a variety of national security concerns. Parliament’s response to this challenge has been to confer on judges the discretion and flexibility to fashion a fair process, in the particular case before them. If this is impossible, judges must not hesitate to find a breach of the right to a fair process and to grant whatever remedies are appropriate, including a stay of proceedings.\n\nIn the present case, the process was fair and the Federal Court judge committed no reviewable errors in finding that the ministers’ decision to declare Mr. Harkat inadmissible to Canada was reasonable. I. History of the Legislation and of the Proceedings A. The Legislation\n\nThe purpose of the IRPA scheme “is to permit the removal of non-citizens living in Canada — permanent residents and foreign nationals — on various grounds, including connection with terrorist activities”: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (“Charkaoui I”), at para. 4. The ministers must decide whether the evidence against a non-citizen gives them reasonable grounds to declare him or her “inadmissible” to Canada — i.e. to issue a removal order. The resulting “certificate of inadmissibility” (also called a “security certificate”) is then referred to the Federal Court for a review of its reasonableness. If a Federal Court judge (the “designated judge”) finds the certificate to be reasonable, the non-citizen named in that certificate (the “named person”) becomes subject to a removal order.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-3", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 7", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA scheme was adopted by Parliament in 2001, as a successor to an analogous scheme contained in the Immigration Act, R.S.C. 1985, c. I-2. In the wake of the attacks of September 11, 2001, it increasingly came to be used as a means of detaining suspected terrorists and eliminating the perceived threat posed by them: K. Roach, “Sources and Trends in Post-9/11 Anti-terrorism Laws”, in B. J. Goold and L. Lazarus, eds., Security and Human Rights (2007), 227, at p. 233. From a practical perspective, the IRPA scheme is in some respects more advantageous for the state than criminal proceedings. It has a lower standard of proof and is more protective of confidential national security information than the criminal law: ibid. As will be discussed further below, any information that would be injurious to national security or to the safety of any person is not disclosed to the named person. This information can nevertheless be presented to the designated judge in closed hearings and relied upon by her in assessing the security certificate’s reasonableness.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-4", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 8–9", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The constitutionality of the IRPA scheme was challenged by Mr. Harkat and other non-citizens named in security certificates. In Charkaoui I, this Court found that the IRPA scheme deprived named persons of their life, liberty, and security of the person in a manner that was not in accordance with principles of fundamental justice, contrary to s. 7 of the Charter . It found that the IRPA scheme precluded the judge from making a decision based on all the relevant facts and law, because it did not provide for representation of the named person in the closed portion of the proceedings. It also held that the IRPA scheme violated the principle that a person must have the ability to know and meet the case against him, because there was not full disclosure of the government’s case to the named person or any substantial substitute for full disclosure.\n\nThe Court concluded that these breaches could not be justified under s. 1 of the Charter , because the IRPA scheme did not minimally impair the named person’s rights. Other types of closed proceedings, both in Canada and abroad, accomplished the goal of protecting confidential national security information less intrusively. For example, in the United Kingdom, special advocates were appointed to receive disclosure on an appellant’s behalf and to defend his or her interests in closed hearings before the Special Immigration Appeals Commission. These special advocates were bound not to reveal confidential information to anyone or (subject to narrow exceptions) to communicate with the appellant. While that system was not without its drawbacks, this Court concluded that, “without compromising security, it better protects the named person’s s. 7 interests”: Charkaoui I, at para. 86.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-5", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 10–12", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "In response to this Court’s ruling, Parliament made several amendments to the IRPA scheme: An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, S.C. 2008, c. 3; the amended IRPA scheme is reproduced in the Appendix to these reasons. In particular, it created a role for special advocates, who protect the interests of the named person in closed hearings after having received disclosure of the entire record. B. The Proceedings\n\nIn 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration issued a first security certificate declaring Mr. Harkat inadmissible to Canada on national security grounds. After the successful constitutional challenge and the amendment of the IRPA scheme, the ministers issued a second security certificate against Mr. Harkat and commenced new proceedings before the Federal Court.\n\nDisclosure issues arose during the proceedings with respect to the individuals (the “human sources”) who secretly provided information regarding Mr. Harkat to the Canadian Security Intelligence Service (“CSIS”). The special advocates sought to obtain disclosure of the identity of the CSIS human sources, as well as permission to interview and to cross-examine them in a closed hearing. Noël J. rejected this request. He reasoned that the common law police informer privilege, which is a rule against the disclosure of any information that might identify a police informer, should be extended to cover CSIS human sources: 2009 FC 204, [2009] 4 F.C.R. 370.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-6", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 13–14", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "At a later point during the disclosure process, it was discovered that the judge and the special advocates had been provided with an incomplete and misleading document regarding one of the CSIS human sources. The document provided to Mr. Harkat’s special advocates failed to disclose that a 2002 polygraph test conducted on the relevant source initially revealed him or her to be untruthful. As a remedy, Noël J. ordered the disclosure of unredacted human source files to the special advocates: 2009 FC 553, 345 F.T.R. 143; 2009 FC 1050, [2010] 4 F.C.R. 149.\n\nThe special advocates also sought to compel the ministers to obtain updated information from foreign intelligence agencies on several alleged terrorists with whom Mr. Harkat was claimed to have associated. They were ultimately dissatisfied with the efforts undertaken by the ministers and sought a stay of proceedings. Noël J. rejected this request, finding that the ministers took reasonable steps to get updated information from foreign intelligence agencies: 2010 FC 1243, 380 F.T.R. 255, at Annex “A”.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-7", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 15–17", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Harkat also sought to have the summaries of intercepted conversations excluded from the evidence on the ground that the original recordings and notes of these conversations, in which he allegedly participated or in which he was allegedly a subject of conversation, were destroyed pursuant to CSIS policy OPS-217. Alternatively, he sought a stay of proceedings in consideration of a number of breaches. Noël J. found that Mr. Harkat suffered no prejudice from the destruction of those original operational materials: 2010 FC 1243. He reasoned that the summaries of the conversations were prepared in a way that ensured their accuracy, and that they were corroborated by the overall narrative about Mr. Harkat which emerged during the hearings. Consequently, he refused to exclude them from the evidence against Mr. Harkat.\n\nFinally, Mr. Harkat challenged the constitutionality of the amended IRPA scheme. Noël J. found the regime to be constitutional: 2010 FC 1242, [2012] 3 F.C.R. 432. In his view, the special advocates provided a substantial substitute for full disclosure to Mr. Harkat and vigorously defended his interests during the closed portion of the proceedings.\n\nAfter consideration of evidence tendered in both public and closed hearings, Noël J. came to the conclusion that the certificate declaring Mr. Harkat inadmissible to Canada was reasonable: 2010 FC 1241, [2012] 3 F.C.R. 251. He made adverse findings of credibility against Mr. Harkat and found that the evidence provided reasonable grounds to believe that Mr. Harkat had been involved with terrorist organizations. He held that Mr. Harkat’s behaviour and lies were consistent with the theory that he had come to Canada as a “sleeper” agent for terrorist organizations.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-8", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 18–21", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Harkat appealed Noël J.’s conclusions. The Federal Court of Appeal (per Létourneau J.A.) allowed the appeal in part: 2012 FCA 122, [2012] 3 F.C.R. 635. It agreed with Noël J.’s conclusion that the amended IRPA scheme is constitutional. However, it found that the identity of CSIS human sources is not protected by privilege. It also excluded from the evidence the summaries of intercepted conversations to which Mr. Harkat had not been privy. It remitted the matter to Noël J. for redetermination on the basis of what remained of the record after the exclusion of the summaries. II. Issues\n\nThe ministers appeal to this Court, seeking the reinstatement of Noël J.’s conclusion that the security certificate was reasonable. They also ask for recognition of the CSIS human source privilege.\n\nMr. Harkat cross-appeals. He asks this Court to find the amended IRPA scheme unconstitutional. Alternatively, he seeks a new reasonableness hearing before a new designated judge, the exclusion of the summaries of all the intercepted conversations for which the original CSIS operational materials were destroyed, and permission for his special advocates to interview and cross-examine the human sources. He also takes issue with Noël J.’s weighing of “open source” evidence (such as books on terrorism and publications in political science periodicals), which led him to conclude that the individuals with whom Mr. Harkat associated were members of terrorist organizations.\n\nIn addition, the special advocates contest Noël J.’s refusal to order a stay of proceedings. They contend that the ministers breached their duties of candour and utmost good faith, and that the proceedings did not allow them to meaningfully test the case brought against Mr. Harkat.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-9", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 22–23", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "This appeal raises the following issues: A. Does the IRPA scheme violate the Charter ? B. Are CSIS human sources covered by privilege and can they be cross-examined? C. Did the designated judge err in refusing to exclude the summaries of intercepted conversations? D. Did the ministers breach their duties of candour and utmost good faith? E. Were the proceedings against Mr. Harkat fair? F. Did the designated judge err in concluding that the security certificate was reasonable? III. Analysis Preliminary Comment\n\nAt the request of the ministers, this Court conducted two distinct hearings on this appeal. One was open to the public, while the second was held behind closed doors. Having heard the confidential submissions, it is my view that it was unnecessary to conduct a portion of the appeal hearing behind closed doors.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-10", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 24–25", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The open court principle is “a hallmark of a democratic society and applies to all judicial proceedings”: Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 23; see also D. M. Paciocco, “When Open Courts Meet Closed Government” (2005), 29 S.C.L.R. (2d) 385, at pp. 391-95; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 20. “National security does not negate the open court principle”: C. Forcese, National Security Law: Canadian Practice in International Perspective (2008), at p. 402. The Supreme Court of the United Kingdom recently commented unfavourably on a hearing that it held behind closed doors at the request of the government, which had raised national security concerns: Bank Mellat v. H. M. Treasury, [2013] UKSC 38, [2013] 4 All E.R. 495, at para. 60, per Lord Neuberger P.S.C. It noted that closed evidence is factual in nature, whereas the points debated before appellate courts are essentially legal: ibid. Consequently, the Supreme Court found that closed hearings before it would rarely, if ever, be necessary for the proper disposition of an appeal.\n\nThe issues in this appeal do not turn on confidential information and could have been debated fully in public without any serious risk of disclosure, supplemented where necessary by brief closed written submissions and by the closed record. The special advocates could have been given judicial permission to make public submissions, so long as they refrained from disclosing confidential information: see s. 85.4(2) and (3) of the Immigration and Refugee Protection Act (“IRPA ”).", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-11", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 26–30", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The content of the closed hearing overlapped significantly with the open hearing and did not assist this Court in deciding the issues before it. It served only to foster an appearance of opacity of these proceedings, which runs contrary to the fundamental principles of transparency and accountability.\n\nI now turn to the issues on appeal. A. Does the IRPA Scheme Violate the Charter ?\n\nMr. Harkat and his special advocates contend that the IRPA scheme fails to provide a fair process to the named person, as required by s. 7 of the Charter . They argue that the regime is unconstitutional because it provides insufficient disclosure to the named person, does not allow the special advocates to communicate freely with the named person, and allows for the admission of hearsay evidence.\n\nAfter providing a brief overview of the IRPA scheme, I will address in turn Mr. Harkat’s rights under s. 7 of the Charter , the principles that guide the scheme, and the scheme’s alleged defects. (1) Overview of the IRPA Scheme (a) Commencement of Proceedings\n\nA security certificate may be issued by the ministers for the removal from Canada of a non-citizen (whether a permanent resident or a foreign national) who is inadmissible on security grounds. The grounds for inadmissibility include engaging in terrorism, being a danger to the security of Canada, engaging in acts of violence that would or might endanger the lives or safety of persons in Canada, or being a member of an organization that engages in terrorism: s. 34 , IRPA . The ministers must have reasonable grounds to believe that the facts giving rise to inadmissibility have occurred, are occurring, or may occur: s. 33 , IRPA .", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-12", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 31–34", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "As a practical matter, the process commences when CSIS presents a Security Intelligence Report (“SIR”) to the ministers. The SIR sets out in detail the allegations and evidence grounding inadmissibility. If the ministers conclude that the allegations in the SIR are reasonably grounded, they issue a security certificate.\n\nOnce the certificate is issued, the ministers must refer it to the Federal Court: s. 77(1) , IRPA . The Federal Court judge who is designated to hear the case “shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not”: s. 78 , IRPA . If the designated judge deems the certificate to be reasonable, the named person is inadmissible and the certificate becomes a removal order in force: s. 80 , IRPA . The named person may be arrested and detained for the duration of the proceedings before the Federal Court: s. 81 , IRPA . (b) The Disclosure of Summaries to the Named Person\n\nThe named person must be given summaries of the information and evidence which allow him to be reasonably informed of the case against him: ss. 77(2) and 83(1) (e), IRPA . The summaries must “not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed”: s. 83(1) (e), IRPA . (c) Special Advocates\n\nThe judge must appoint one or more special advocates to protect the interests of the named person in closed hearings: s. 83(1) (b), IRPA . These hearings are held in camera and ex parte, in order to permit the Minister to present information and evidence the public disclosure of which could be injurious to national security or endanger the safety of a person: s. 83(1) (c), IRPA .", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-13", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 35–36", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Special advocates are security-cleared lawyers whose role is to protect the interests of the named person and “to make up so far as possible for the [named person’s] own exclusion from the evidentiary process”: S. Sedley, “Terrorism and security: back to the future?”, in D. Cole, F. Fabbrini and A. Vedaschi, eds., Secrecy, National Security and the Vindication of Constitutional Law (2013), 13, at p. 16. During the closed hearings, they perform the functions that the named person’s counsel (the “public counsel”) performs in the open hearings. They do so by challenging the Minister’s claims that information or evidence should not be disclosed, and by testing the relevance, reliability, and sufficiency of the secret evidence: s. 85.1(1) and (2) , IRPA . They are active participants in the closed hearings. They may make submissions and cross-examine witnesses who appear in those hearings: s. 85.2 (a) and (b), IRPA . The IRPA scheme also provides that the special advocates may “exercise, with the judge’s authorization, any other powers that are necessary to protect the interests” of the named person: s. 85.2 (c), IRPA .\n\nNo solicitor-client relationship exists between the special advocates and the named person: s. 85.1(3) , IRPA . However, solicitor-client privilege is deemed to apply to exchanges between the special advocates and the named person, provided that those exchanges would attract solicitor-client privilege at common law: s. 85.1(4) , IRPA . As Lutfy C.J. put it, “[a]s between special advocates and named persons, Division 9 protects information and not relationships. . . . The information that passes between them, absent the solicitor and client relationship, is deemed to be protected”: Almrei (Re), 2008 FC 1216, [2009] 3 F.C.R. 497, at paras. 56-57.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-14", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 37–38", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Strict communication rules apply to special advocates, in order to prevent the inadvertent disclosure of sensitive information. After the special advocates are provided with the confidential information and evidence, they “may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate”: s. 85.4(2) , IRPA . Read plainly, “this prohibition covers all information about the proceeding from both public and private sessions, including any testimony given in the absence of the public and the named person and their counsel”: Almrei, at para. 16. By contrast, any other person — such as the ministers’ counsel or the court personnel in attendance at closed hearings — is subject to significantly fewer restrictions on communication. Other persons must refrain from communicating about the proceedings only (i) if they have had a court-authorized communication with the special advocates and the judge has specifically prohibited them from communicating with anyone else about the proceeding, or (ii) if the communication would disclose the content of a closed hearing: ss. 85.4(3) , 85.5 (a) and (b), IRPA . (d) Admissibility of Evidence\n\nThe usual rules of evidence do not apply to the proceedings. Instead, “the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence”: s. 83(1) (h), IRPA .", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-15", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 39–41", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA scheme provides that the judge’s decision can be based on information or evidence that is not disclosed in summary form to the named person: s. 83(1)(i). It does not specify expressly whether a decision can be based in whole, or only in part, on information and evidence that is not disclosed to the named person. (2) The Section 7 Charter Right to a Fair Process\n\nIn Charkaoui I, this Court found that the IRPA scheme engages significant life, liberty, and security of the person interests: paras. 12-16. Laws that interfere with these interests must conform to the principles of fundamental justice. If they fail to do so, they breach s. 7 of the Charter and fall to be justified under s. 1 of the Charter .\n\nPursuant to the principles of fundamental justice, a named person must be provided with a fair process: Charkaoui I, at paras. 19-20. At issue in the present appeal are two interrelated aspects of the right to a fair process: the right to know and meet the case, and the right to have a decision made by the judge on the facts and the law. The named person must “be informed of the case against him or her, and be permitted to respond to that case”: Charkaoui I, at para. 53. Correlatively, the named person’s knowledge of the case and participation in the process must be sufficient to result in the designated judge being “exposed to the whole factual picture” of the case and having the ability to apply the relevant law to those facts: ibid., at para. 51.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-16", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 42–45", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "This said, the assessment of whether a process is fair must take into account the legitimate need to protect information and evidence that is critical to national security. As I wrote in Charkaoui I, “[i]nformation may be obtained from other countries or from informers on condition that it not be disclosed. Or it may simply be so critical that it cannot be disclosed without risking public security”: para. 61.\n\nFull disclosure of information and evidence to the named person may be impossible. However, the basic requirements of procedural justice must be met “in an alternative fashion appropriate to the context, having regard to the government’s objective and the interests of the person affected”: Charkaoui I, at para. 63. The alternative proceedings must constitute a substantial substitute to full disclosure. Procedural fairness does not require a perfect process — there is necessarily some give and take inherent in fashioning a process that accommodates national security concerns: Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3, at para. 46.\n\nThe overarching question, therefore, is whether the amended IRPA scheme provides a named person with a fair process, taking into account the imperative of protecting confidential national security information. (3) The Guiding Principles of the IRPA Scheme\n\nThe alleged defects in the IRPA scheme must be assessed in light of the scheme’s overall design. Two central principles guide the scheme.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-17", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 46–47", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, the designated judge is intended to play a gatekeeper role. The judge is vested with broad discretion and must ensure not only that the record supports the reasonableness of the ministers’ finding of inadmissibility, but also that the overall process is fair: “. . . in a special advocate system, an unusual burden will continue to fall on judges to respond to the absence of the named person by pressing the government side more vigorously than might otherwise be the case” (C. Forcese and L. Waldman, “Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of ‘Special Advocates’ in National Security Proceedings” (2007) (online), at p. 60). Indeed, the IRPA scheme expressly requires the judge to take into account “considerations of fairness and natural justice” when conducting the proceedings: s. 83(1) (a), IRPA . The designated judge must take an interventionist approach, while stopping short of assuming an inquisitorial role.\n\nSecond, participation of the special advocates in closed hearings is intended to be a substantial substitute for personal participation by the named person in those hearings. With respect to the confidential portion of the case against the named person, the special advocates must be in a position to act as vigorously and effectively as the named person himself would act in a public proceeding. Indeed, Parliament added special advocates as a feature of the IRPA scheme in order to bring it into compliance with the substantive requirements of s. 7 of the Charter , as articulated in Charkaoui I. Whether the scheme allows for this intention to become a reality is the central constitutional issue in this appeal, to which I now turn. (4) The Alleged Shortfalls of the IRPA Scheme", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-18", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 48–50", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "In essence, Mr. Harkat alleges that the disclosure of public summaries and the representation of the interests of the named person by special advocates do not suffice to bring the IRPA scheme into compliance with the requirements of s. 7 of the Charter . I will address each of the alleged defects of the scheme in turn. (a) Does the Scheme Provide the Named Person With Sufficient Disclosure?\n\nMr. Harkat contends that the public summaries of the closed record are too vague and general. In his view, they do not allow a named person to know and meet the case against him or her. He argues that the essence of the right to know and meet a case is the ability to meet detail with detail. He also contends that the IRPA scheme takes too categorical an approach to disclosure: a named person will never obtain disclosure of information which would be injurious to national security or to the safety of any person, regardless of the importance of disclosure to the named person’s case. A less rights-impairing alternative would be a balancing approach such as the one found in s. 38.06(2) of the Canada Evidence Act , R.S.C. 1985, c. C-5 (“CEA ”), which permits the public interest in non-disclosure to be balanced against the public interest in disclosure.\n\nIn my view, the IRPA scheme provides sufficient disclosure to the named person to be constitutionally compliant. I base this conclusion on the designated judge’s statutory duty to ensure that the named person is reasonably informed of the Minister’s case throughout the proceedings. (i) The IRPA Scheme Requires an Incompressible Minimum Amount of Disclosure to the Named Person", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-19", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 51–52", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "At first blush, the provisions of the IRPA scheme appear to give precedence to confidentiality of information over the named person’s right to know and meet the case. Section 83(1)(e) provides that, throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed; Thus, the content of the summaries must be tailored to satisfy the overriding proviso that no information or evidence injurious to national security or to the safety of any person may be disclosed.\n\nThe IRPA scheme also provides, at s. 83(1)(i), that the judge may base his decision on information or evidence of which the named person has not been informed in summary form: “[T]he judge may base a decision on information or other evidence even if a summary of that information or other evidence is not provided to the permanent resident or foreign national . . .”.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-20", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 53–55", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The combination of ss. 83(1)(e) and 83(1)(i) could conceivably lead to a situation where the judge makes a decision on the reasonableness of the security certificate despite the fact that the named person has only received severely truncated disclosure. Noël J. even contemplated a scenario where the named person receives virtually no disclosure: “There may come a time when the only evidence to justify inadmissibility on security ground originates from a very sensitive source, and that the disclosure of such evidence, even through a summary, would inevitably disclose the source” (2010 FC 1242, at para. 59). He nevertheless found the disclosure provisions of the IRPA scheme to be constitutional.\n\nIn my view, Noël J. erred in interpreting the IRPA scheme in a manner that allows for that scenario. Charkaoui I makes clear that there is an incompressible minimum amount of disclosure that the named person must receive in order for the scheme to comply with s. 7 of the Charter . He or she must receive sufficient disclosure to know and meet the case against him or her.\n\nParliament amended the IRPA scheme with the intent of making it compliant with the s. 7 requirements expounded in Charkaoui I, and it should be interpreted in light of this intention: R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110, at paras. 28-29. The IRPA scheme’s requirement that the named person be “reasonably informed” (“suffisamment informé”) of the Minister’s case should be read as a recognition that the named person must receive an incompressible minimum amount of disclosure.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-21", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 56", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Under the IRPA scheme, a named person is “reasonably informed” if he has personally received sufficient disclosure to be able to give meaningful instructions to his public counsel and meaningful guidance and information to his special advocates which will allow them to challenge the information and evidence relied upon by the Minister in the closed hearings. Indeed, the named person’s ability to answer the Minister’s case hinges on the effectiveness of the special advocates, which in turn depends on the special advocates being provided with meaningful guidance and information. As the House of Lords of the United Kingdom put it in referring to disclosure under the British special advocates regime, the named person must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. . . . Where . . . the open material consists purely of general assertions and the case . . . is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be. (Secretary of State for the Home Department v. A.F. (No. 3), [2009] UKHL 28, [2009] 3 All E.R. 643, at para. 59, per Lord Phillips of Worth Matravers) I would add that the named person need not only be given sufficient information about the allegations against him, but also about the evidence on the record.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-22", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 57–59", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The level of disclosure required for a named person to be reasonably informed is case-specific, depending on the allegations and evidence against the named person. Ultimately, the judge is the arbiter of whether this standard has been met. At the very least, the named person must know the essence of the information and evidence supporting the allegations. This excludes the scenario where the named person receives no disclosure whatsoever of essential information or evidence.\n\nThe IRPA scheme is silent as to what happens if there is an irreconcilable tension between the requirement that the named person be “reasonably informed”, on the one hand, and the imperative that sensitive information not be disclosed, on the other. The IRPA scheme does not provide that the “reasonably informed” standard can be compromised. But nor does it provide that sensitive information can be disclosed where this is absolutely necessary in order for the “reasonably informed” standard to be met.\n\nIn my view, the necessary outcome of situations where there is an irreconcilable tension is that the Minister must withdraw the information or evidence whose non-disclosure prevents the named person from being reasonably informed. In some cases, this may effectively compel the Minister to put an end to the proceedings.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-23", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 60–61", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "To hold that the Minister can rely on essential information and evidence of which the named person cannot be reasonably informed would force the judge to violate the responsibility expressly placed on him by the statute, i.e. his duty to ensure that the named person remain reasonably informed throughout the proceedings. It cannot have been Parliament’s intent to design a scheme in which the judge is required to violate the responsibilities placed upon him. Consequently, the IRPA scheme must be interpreted as precluding the Minister from bringing a case in respect of which the named person cannot be kept reasonably informed. The scheme mandates that the named person remain reasonably informed — i.e. that he be able to give meaningful instructions to his public counsel and meaningful guidance and information to his special advocates — throughout the proceedings. If the named person is not reasonably informed, the proceedings will not have been in compliance with the IRPA scheme and the judge cannot confirm the certificate’s reasonableness. In such a case, the judge must quash the certificate, pursuant to s. 78 of the IRPA . (ii) Only Information or Evidence That Raises a Serious Risk Must Be Withheld\n\nOnly information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld from the named person. The judge must ensure throughout the proceedings that the Minister does not cast too wide a net with his claims of confidentiality.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-24", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 62", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the IRPA scheme provides that closed hearings must be held when the disclosure of information could be injurious (s. 83(1) (c), IRPA ), it mandates the withholding of information from public summaries only if its disclosure would, in the judge’s opinion, be injurious (s. 83(1) (e), IRPA ). The judge must err on the side of caution in ordering closed hearings during which he can ascertain the validity of the Minister’s position with respect to the sensitivity of given information or evidence. However, once the judge has heard the parties, he must ensure that only information or evidence which would injure national security or endanger the safety of a person is withheld from the named person. “It is the Ministers who bear the burden of establishing that disclosure not only could but would be injurious to national security, or endanger the safety of any person”: Jaballah, Re, 2009 FC 279, 340 F.T.R. 43, at para. 9, per Dawson J. (emphasis added).", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-25", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 63–64", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The judge must be vigilant and skeptical with respect to the Minister’s claims of confidentiality. Courts have commented on the government’s tendency to exaggerate claims of national security confidentiality: Canada (Attorney General) v. Almalki, 2010 FC 1106, [2012] 2 F.C.R. 508, at para. 108; Khadr v. Canada (Attorney General), 2008 FC 549, 329 F.T.R. 80, at paras. 73-77 and 98; see generally C. Forcese, “Canada’s National Security ‘Complex’: Assessing the Secrecy Rules” (2009), 15:5 IRPP Choices 3. As Justice O’Connor commented in his report on the Arar inquiry, overclaiming exacerbates the transparency and procedural fairness problems that inevitably accompany any proceeding that can not be fully open because of [national security confidentiality] concerns. It also promotes public suspicion and cynicism about legitimate claims by the Government of national security confidentiality. (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations (2006), at p. 302)\n\nThe judge is the gatekeeper against this type of overclaiming, which undermines the IRPA scheme’s fragile equilibrium. Systematic overclaiming would infringe the named person’s right to a fair process or undermine the integrity of the judicial system, requiring a remedy under s. 24(1) of the Charter . (iii) The Absence of a Balancing Approach Does Not Make the Scheme Unconstitutional", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-26", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 65–66", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "In addition, Mr. Harkat argues that the IRPA scheme’s approach to disclosure is unconstitutional because it fails to provide for a balancing of countervailing interests. In his view, s. 7 of the Charter requires the adoption of an approach similar to the one found in s. 38.06(2) of the CEA , which allows the judge to order disclosure of national security information if “the public interest in disclosure outweighs in importance the public interest in non-disclosure”.\n\nI would reject this contention. Section 7 of the Charter does not require a balancing approach to disclosure. Rather, it requires a fair process. “There is no free-standing principle of fundamental justice requiring a proper balancing of interests in general, or requiring the balancing of interests in decisions about disclosure”: H. Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), at p. 229. Parliament’s choice to adopt a categorical prohibition against disclosure of sensitive information, as opposed to a balancing approach, does not as such constitute a breach of the right to a fair process. (b) Are the Special Advocates a “Substantial Substitute” to Participation by the Named Person?", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-27", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 67–68", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "As discussed, the named person and his public counsel do not have access to the closed record, nor can they participate in the closed hearings. Parliament added the role of special advocates to the IRPA scheme so that they could serve as a proxy for the named person in the closed portion of the proceedings. Mr. Harkat argues that the restrictions on the special advocates’ ability to communicate with the named person prevent them from effectively protecting the named person’s interests. Specifically, he claims that communications between the named person and the special advocates should not be subject to restrictions. He also contends that the special advocates will be unable to seek judicial authorization without breaching solicitor-client privilege. As a consequence, in his view, the addition of special advocates to the regime fails to address the concerns voiced by this Court in Charkaoui I.\n\nThe communications restrictions imposed on special advocates are significant, requiring judicial authorization for any communication regarding the proceedings between the special advocates and the named person or a third party, after the special advocates have received confidential materials. However, they do not render the scheme unconstitutional. I come to this conclusion for three reasons.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-28", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 69", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, the restrictions on communications by the special advocates are not absolute. They can be lifted with judicial authorization, subject to conditions deemed appropriate by the designated judge: s. 85.4(2) , IRPA . While this process is less fluid and efficient than the unfettered communications that prevail between a lawyer and his client, it should be remembered that s. 7 of the Charter does not guarantee a perfect process. The judicial authorization process gives the designated judge a sufficiently broad discretion to allow all communications that are necessary for the special advocates to perform their duties.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-29", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 70", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The broad discretion conferred by the IRPA scheme averts unfairness that might otherwise result from the communications restrictions. The designated judge can ensure that the special advocates function as closely as possible to ordinary counsel in a public hearing. The restrictions on communications are designed to avert serious risks of disclosure of information or evidence whose disclosure would be injurious to national security or to the safety of any person. While the IRPA scheme requires the judge to minimize risks of inadvertent disclosure of information, the judge must also give special advocates significant latitude. The special advocates are competent and security-cleared lawyers, who take their professional and statutory obligations seriously. They have the ability to distinguish between the public and confidential aspects of their case. The judge should take a liberal approach in authorizing communications and only refuse authorization where the Minister has demonstrated, on a balance of probabilities, a real — as opposed to a speculative — risk of injurious disclosure. As much as possible, the special advocates should be allowed to investigate the case and develop their strategy by communicating with the named person, the named person’s public counsel, and third parties who may bring relevant insights and information.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-30", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 71–72", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, the named person and his public counsel can send an unlimited amount of one-way communications to the special advocates at any time throughout the proceedings. This is significant. As discussed above, the public summaries provided on an ongoing basis to the named person will ensure that he or she is sufficiently informed to provide meaningful guidance and information to the special advocates. These summaries should elicit helpful one-way communications from the named person to the special advocates. And these one-way communications may in turn give rise to requests from the special advocates for judicial permission to communicate with the named person in order to obtain needed clarifications or additional information.\n\nFinally, the record does not support the conclusion that the IRPA scheme is unconstitutional on the basis that the special advocates must necessarily breach solicitor-client privilege in order to obtain judicial permission to communicate. As Noël J. noted, “[t]he question of assessing solicitor-client [privilege] remains theoretical in the case at hand. The requests to communicate presented did not directly or indirectly reveal such information”: 2010 FC 1242, at para. 178. Moreover, the evolving practices of the Federal Court may substantially lessen the tension between judicial authorization and privilege. For example, the special advocates can minimize the risk of revealing their litigation strategy by seeking to make submissions to the designated judge in the absence of the ministers’ lawyers: Almrei, 2008 FC 1216, at para. 65.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-31", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 73–75", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The issue of how to reconcile the judicial authorization process with solicitor-client privilege should be decided if and when it arises on the facts of a case: Almrei, 2008 FC 1216, at para. 41; Almrei, Re, 2009 FC 322, 342 F.T.R. 11, at para. 24. It may be that an exception to solicitor-client privilege could be recognized in such circumstances: Smith v. Jones, [1999] 1 S.C.R. 455, at para. 53, per Cory J.; Almrei, 2008 FC 1216, at paras. 60-62. Or it may instead be necessary to recognize that, in cases where judicial authorization cannot be granted without a breach of solicitor-client privilege, the proceedings fail to meet the requirements of s. 7 of the Charter and that a remedy should be granted under s. 24(1) of the Charter . (c) Does the Admission of Hearsay Evidence Render the Scheme Unconstitutional?\n\nThe IRPA scheme provides that the usual rules of evidence do not apply to the security certificate proceedings. Rather, any evidence that the judge determines to be “reliable and appropriate” is admissible: s. 83(1) (h), IRPA . It is argued that this denies the named person’s s. 7 Charter rights, since the special advocates will be unable to meaningfully test the evidence.\n\nIt is true that some evidence which is admissible under the IRPA scheme cannot be tested for reliability and accuracy in the usual manner. For example, the IRPA scheme would allow the admission of a foreign intelligence agency’s report that the judge deems “reliable and appropriate”, despite the fact that it is hearsay. The special advocates will not have had the opportunity to cross-examine the foreign sources quoted in the report or the operatives who compiled it.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-32", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 76", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "While s. 83(1) (h) of the IRPA may result in the admission of hearsay evidence and deny the special advocates the ability to cross-examine sources, it does not violate s. 7 of the Charter . As this Court recognized in R. v. L. (D.O.), [1993] 4 S.C.R. 419, “the rules of evidence have not been constitutionalized into unalterable principles of fundamental justice”: p. 453, per L’Heureux-Dubé J. As discussed, s. 7 guarantees a fundamentally fair process. The rule against hearsay evidence and the right to cross-examine witnesses simply provide a means towards such a process, by screening out unreliable evidence: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 48. The IRPA scheme achieves this purpose of excluding unreliable evidence by alternative means. It provides the designated judge with broad discretion to exclude evidence that is not “reliable and appropriate”. This broad discretion allows the judge to exclude not only evidence that he or she finds, after a searching review, to be unreliable, but also evidence whose probative value is outweighed by its prejudicial effect against the named person. (5) Concluding Remarks on the Constitutionality of the IRPA Scheme", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-33", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 77–80", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "I have concluded that the impugned provisions of the IRPA scheme are constitutional. They do not violate the named person’s right to know and meet the case against him, or the right to have a decision made on the facts and the law. However, it must be acknowledged that these provisions remain an imperfect substitute for full disclosure in an open court. There may be cases where the nature of the allegations and of the evidence relied upon exacerbate the limitations inherent to the scheme, resulting in an unfair process. In light of this reality, the designated judge has an ongoing responsibility to assess the overall fairness of the process and to grant remedies under s. 24(1) of the Charter where appropriate — including, if necessary, a stay of proceedings. B. Are CSIS Human Sources Covered by Privilege and Can They Be Cross-Examined?\n\nMr. Harkat’s special advocates ask the Court for an order permitting them to interview and cross-examine the CSIS human sources relied upon by the Minister in the case against him. Noël J. denied this order, holding that the identity of the sources and information which tends to reveal their identity is covered by a common law “class” privilege.\n\nThe Federal Court of Appeal disagreed. It held that, unlike police informers, CSIS human sources are not protected by common law class privilege. However, it did not deal with whether the human sources could be cross-examined.\n\nI agree with the Federal Court of Appeal that CSIS human sources are not protected by a class privilege. However, this is not to say that they are left entirely unprotected by the security certificate regime. The IRPA scheme provides a mechanism to protect their identity, as I will now discuss. (1) Does Privilege Attach to CSIS Human Sources?", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-34", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 81–84", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is important to note at the outset that the IRPA scheme provides protection for the identity of sources and of information that tends to reveal that identity. Indeed, the starting point under the IRPA scheme is that all information whose disclosure would be injurious to national security or endanger the safety of a person is protected from disclosure to the named person and to the public: s. 83(1)(d). In most cases, the disclosure of the identity of human sources would both be injurious to national security and endanger the safety of those sources. Consequently, their identity will generally be protected from disclosure under the IRPA scheme.\n\nAs a limited exception to this general principle of non-disclosure, the IRPA scheme provides that special advocates get full disclosure of all the evidence provided by the Minister to the judge: s. 85.4(1). The Minister has no obligation, however, to disclose privileged materials to anyone.\n\nIt thus becomes necessary to determine whether the identities of CSIS human sources, and related information, are privileged. But it is important to bear in mind that even if they are not privileged, the judge under the IRPA scheme has the duty to prevent disclosure to the public and to the named person of this information if it would be injurious to national security or the safety of the sources. The information will thus generally remain within the confines of the closed circle formed by the designated judge, the special advocates — who, it bears repeating, are security-cleared lawyers — and the Minister’s lawyers.\n\nAgainst this background, I come to the question: Are the identities of CSIS human sources and information that might reveal their identity protected by common law privilege?", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-35", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 85", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is argued that police informer privilege attaches to CSIS human sources. I agree with the Federal Court of Appeal that it does not. Traditional police work involving informers, on the one hand, and the collection of security intelligence and information, on the other, are two different things. Indeed, Parliament created CSIS in recognition of this emerging distinction: Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 (“Charkaoui II”), at paras. 21-22. Courts developed police informer privilege at a time when the police investigated crimes locally and collected evidence mainly for use in criminal trials. By contrast, the intelligence gathering conducted by CSIS takes place on a global scale and is geared towards prospectively preventing risks: K. Roach, “The eroding distinction between intelligence and evidence in terrorism investigations”, in N. McGarrity, A. Lynch and G. Williams, eds., Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (2010), 48. Police have an incentive not to promise confidentiality except where truly necessary, because doing so can make it harder to use an informer as a witness. CSIS, on the other hand, is not so constrained. It is concerned primarily with obtaining security intelligence, rather than finding evidence for use in court. While evidence gathered by the police was traditionally used in criminal trials that provide the accused with significant evidentiary safeguards, the intelligence gathered by CSIS may be used to establish criminal conduct in proceedings that — as is the case here — have relaxed rules of evidence and allow for the admission of hearsay evidence.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-36", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 85–86", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The differences between traditional policing and modern intelligence gathering preclude automatically applying traditional police informer privilege to CSIS human sources.\n\nI have found no persuasive authority for the proposition that police informer privilege applies to CSIS human sources. In R. v. Y. (N.), 2012 ONCA 745, 113 O.R. (3d) 347, cited as authority by Abella and Cromwell JJ., the issue was whether an informer who had worked successively for CSIS and the RCMP was a state agent for purposes of applying the Charter . The court remarked that one distinction between a state agent and a confidential informer is that privilege applies only to the latter (para. 122). The court’s reasons can be read as assuming that privilege would attach to a CSIS informer, but that point was not squarely before the court and was not decided.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-37", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 87", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Nor, in my view, should this Court create a new privilege for CSIS human sources. This Court has stated that “[t]he law recognizes very few ‘class privileges’” and that “[i]t is likely that in future such ‘class’ privileges will be created, if at all, only by legislative action”: R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 42. The wisdom of this applies to the proposal that privilege be extended to CSIS human sources: Canada (Attorney General) v. Almalki, 2011 FCA 199, [2012] 2 F.C.R. 594, at paras. 29-30, per Létourneau J.A. If Parliament deems it desirable that CSIS human sources’ identities and related information be privileged, whether to facilitate coordination between police forces and CSIS or to encourage sources to come forward to CSIS (see reasons of Abella and Cromwell JJ.), it can enact the appropriate protections. Finally, the question arises whether judges should have the power to shield the identity of human sources from special advocates on a case-by-case basis where they conclude that public interests in non-disclosure outweigh the benefits of disclosure. This question was not argued by the parties, and I offer no comment on it, other than to note that the IRPA scheme already affords broad protection to human sources by precluding the public disclosure of information that would injure national security or endanger a person. (2) Should the Special Advocates Be Authorized to Interview and Cross-Examine the Human Sources?", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-38", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 88–89", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The special advocates ask this Court to rule that they may interview and cross-examine the CSIS human sources who have provided information used against Mr. Harkat.[1] I have concluded that the identity of CSIS human sources is not privileged. However, it does not follow from the absence of a privilege that special advocates have an unlimited ability to interview and cross-examine human sources. As discussed above, the designated judge may admit information provided by these sources as hearsay evidence, if he concludes that the evidence is “reliable and appropriate”: s. 83(1) (h), IRPA . The Minister has no obligation to produce CSIS human sources as witnesses, although the failure to do so may weaken the probative value of his evidence.\n\nThis said, the special advocates may “exercise, with the judge’s authorization, any other powers that are necessary to protect the interests” of the named person: s. 85.2 (c), IRPA . The designated judge has the discretion to allow the special advocates to interview and cross-examine human sources in a closed hearing. This discretion should be exercised as a last resort. The record before us establishes that a generalized practice of calling CSIS human sources before a court, even if only in closed hearings, may have a chilling effect on potential sources and hinder CSIS’s ability to recruit new sources. In most cases, disclosure to the special advocates of the human source files and other relevant information regarding the human sources will suffice to protect the interests of the named person.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-39", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 90", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The case at hand is not one of those rare cases in which it is necessary to give special advocates permission to interview and cross-examine CSIS human sources. The special advocates contend that cross-examination is necessary in order to test the credibility of the human sources, to cross-examine them on Mr. Harkat’s motives for coming to Canada in the mid-1990s, and to undermine the allegation that Mr. Harkat traveled to Afghanistan. In my view, Mr. Harkat and his special advocates have had sufficient opportunity to pursue those objectives, and the designated judge’s weighing of the relevant evidence took into account the fact that it was hearsay. Indeed, the evidence on the record allowed the special advocates to undermine the credibility of one of the human sources and led Noël J. to rely on information originating from this source only when corroborated: see 2010 FC 1241, at footnote 1. Moreover, Mr. Harkat testified with respect to his motives for coming to Canada and denied the allegations that he visited Afghanistan. Noël J. made a strong adverse finding of credibility against Mr. Harkat on these issues: it is highly improbable that cross-examination of the human sources could have bolstered his credibility. There is therefore no need for this Court to authorize the exceptional measure of interviewing and cross-examining human sources. C. Did the Designated Judge Err in Refusing to Exclude the Summaries of Intercepted Conversations?", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-40", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 91–92", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Harkat seeks the exclusion of summaries of intercepted conversations that were tendered as evidence by the ministers, pursuant to s. 24(1) of the Charter . He argues that CSIS prejudiced his ability to know and meet the case against him by destroying the original operational notes and recordings that were the source materials for the summaries. Noël J. found the summaries to be reliable and concluded that the destruction of the operational materials did not prejudice Mr. Harkat. The Federal Court of Appeal disagreed, finding that the destruction of the materials prejudiced Mr. Harkat’s ability to challenge the reliability and accuracy of the summaries. As a remedy, it excluded the summaries of intercepted conversations to which Mr. Harkat was not privy. (1) Did the Destruction of Source Materials Result in a Breach of Section 7 of the Charter ?\n\nThe original CSIS operational materials were destroyed in accordance with CSIS internal policy OPS-217, which required the systematic destruction of operational materials after operatives had completed their final reports and summaries. In Charkaoui II, this Court found that both the Canadian Security Intelligence Service Act , R.S.C. 1985, C-23 (“CSIS Act”), and the right to procedural fairness of the named person required CSIS “to retain all the information in its possession and to disclose it to the ministers and the designated judge”: para. 62.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-41", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 93–94", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "As a result of policy OPS-217, the original operational notes and recordings are lost evidence. Where the Minister loses evidence that should have been disclosed, he has a duty to explain what happened to it: R. v. La, [1997] 2 S.C.R. 680, at paras. 18-20. Where the Minister is unable to satisfy the judge that the evidence was not destroyed owing to unacceptable negligence, he has failed to meet his disclosure obligations and there has been a breach of s. 7 of the Charter : ibid., at para. 20. In the present case, the destruction of operational notes pursuant to policy OPS-217 constitutes unacceptable negligence, within the meaning of La. Indeed, no reasonable steps were taken to preserve the evidence: ibid., at para. 21. Quite the contrary. CSIS destroyed the materials in violation of the CSIS Act, and, in so doing, compromised “the very function of judicial review”: Charkaoui II, at para. 62. Consequently, the ministers failed to meet their disclosure obligations towards Mr. Harkat and breached s. 7 of the Charter . (2) What Is the Appropriate Remedy?\n\nThe finding that CSIS operational materials were destroyed through unacceptable negligence does not necessarily mean that the summaries of those materials must be excluded from the evidence. The appropriate remedy for the destruction of materials pursuant to policy OPS-217 must be assessed on a case-by-case basis, and must be tailored to address the prejudicial effect on the named person’s case: Charkaoui II, at para. 46.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-42", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 95–97", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The summaries of materials destroyed pursuant to policy OPS-217 should only be excluded under s. 24(1) of the Charter if their admission “would result in an unfair trial or would otherwise undermine the integrity of the justice system”: R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 3. “[T]he appropriate focus in most cases of late or insufficient disclosure under s. 24(1) is the remediation of prejudice to the accused” and the “safeguarding of the integrity of the justice system”: ibid., at para. 26. Since the exclusion of evidence impedes the truth-seeking function of trials, it should only be resorted to if lesser remedies are inadequate to achieve those two purposes: ibid., at para. 24.\n\nThus, the question here is whether the exclusion of the summaries is necessary to remedy the prejudice to Mr. Harkat’s ability to know and meet the case against him, or to safeguard the integrity of the justice system. In my view, it is not.\n\nThe disclosure of the summaries in an abridged version to Mr. Harkat and in an unredacted form to his special advocates was sufficient to prevent significant prejudice to Mr. Harkat’s ability to know and meet the case against him. It is true, as the Federal Court of Appeal noted, that the destruction of the originals makes it impossible to ascertain with complete certainty whether the summaries contain errors or inaccuracies: para. 133. “An assessment of prejudice is problematic where, as in this case, the relevant information has been irretrievably lost”: R. v. Bero (2000), 137 O.A.C. 336, at para. 49. However, the impact of the loss of evidence on trial fairness must be considered “in the context of the rest of the evidence and the position taken by the defence”: R. v. J.G.B. (2001), 139 O.A.C. 341, at para. 38.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-43", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 98–99", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The destruction of the original operational materials did not significantly prejudice Mr. Harkat’s ability to know and meet the case against him. As Noël J. noted, reliable summaries of the original materials pertaining to the intercepted conversations were disclosed to Mr. Harkat. Mr. Harkat’s position was to deny the very occurrence of most of those conversations rather than to challenge their specifics. And the content of the summaries is corroborated by the overall narrative of Mr. Harkat’s life which emerged during the proceedings: 2010 FC 1243, at paras. 66-67.\n\nMoreover, I am satisfied that the admission of the summaries does not undermine the integrity of the justice system. While the destruction of CSIS operational materials was a serious breach of the duty to preserve evidence, it was not carried out for the purpose of deliberately defeating the Minister’s obligation to disclose. It must also be recognized that, prior to this Court’s holding in Charkaoui II, the existence and scope of CSIS’s legal obligation to preserve operational materials had not been definitively settled by the courts. It cannot be said that CSIS’s application of policy OPS-217 evidenced a systematic disregard for the law. Since the admission of the summaries would neither deny procedural fairness to Mr. Harkat nor undermine the integrity of the justice system, I conclude that Noël J. made no reviewable errors in refusing to exclude the impugned summaries of intercepted conversations. D. Did the Ministers Breach Their Duties of Candour and Utmost Good Faith?", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-44", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 100–102", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The special advocates argue that duties of candour and utmost good faith required the ministers to make extensive inquiries of foreign intelligence agencies for information and evidence regarding several alleged terrorists with whom they claim that Mr. Harkat had associated. They contend that the ministers failed to discharge these duties. The courts below found that the ministers made reasonable efforts to obtain information sought by the special advocates.\n\nIn Ruby, this Court recognized that duties of candour and utmost good faith apply when a party relies upon evidence in ex parte proceedings: “The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld” (para. 27). The Federal Court added, in Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163, at para. 500, that “[t]he duties of utmost good faith and candour imply that the party relying upon the presentation of ex parte evidence will conduct a thorough review of the information in its possession and make representations based on all of the information including that which is unfavourable to their case.”\n\nThe duties of candour and utmost good faith require an ongoing effort to update, throughout the proceedings, the information and evidence regarding the named person: see, for example, Almrei, 2009 FC 1263, at para. 500. The special advocates argue that, pursuant to these duties, the ministers must send detailed requests to foreign intelligence agencies. In their view, those requests must explain the context of security certificate hearings, the purposes for which the information will be used, and the consequences for the named person if the information is not provided.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-45", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 103–104", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The position advocated by the special advocates is tantamount to requiring the ministers to conduct an investigation under the instructions of the special advocates. The ministers have no general obligation to provide disclosure of evidence or information that is beyond their control: R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 21; R. v. Stinchcombe, [1995] 1 S.C.R. 754, at para. 2. With respect to evidence and information held by foreign intelligence agencies, the ministers’ duty is to make reasonable efforts to obtain updates and provide disclosure. What constitutes reasonable efforts will turn on the facts of each case. In the present appeal, I agree with Noël J. that reasonable efforts were made by the ministers: see 2010 FC 1243, Annex “A”, at paras. 6-7. The ministers sent letters of request to the relevant foreign intelligence agencies. The outcome of those requests may not have been satisfactory to the special advocates, but this fact alone is not enough to conclude that the efforts made by the ministers were insufficient. E. Were the Proceedings Against Mr. Harkat Fair?\n\nThe special advocates ask this Court to find that, even if the statutory scheme is constitutional in the abstract, Mr. Harkat was not afforded a fair process in the case at hand and should be granted a stay of proceedings. They contend that they were not given sufficient opportunities to test the reliability and accuracy of the summaries of intercepted conversations and the information provided by foreign intelligence agencies, nor to test the credibility of the human sources.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-46", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 105–107", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "I would not grant a stay of proceedings. As discussed above, Noël J. did not err in admitting the summaries of intercepted conversations or in refusing to allow the cross-examination of human sources. The special advocates also fail to demonstrate any reviewable errors in his conclusions that the foreign intelligence he admitted was reliable and appropriate, or in the probative value that he accorded to that evidence.\n\nA stay of proceedings is a remedy of last resort, to be granted only in the clearest of cases: R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 82; La, at para. 23; Charkaoui II, at para. 76; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. The special advocates have failed to demonstrate that Mr. Harkat’s security certificate proceedings were an unfair process or that state conduct undermined the integrity of the judicial system. Mr. Harkat is not entitled to a stay of proceedings. F. Did the Designated Judge Err in Concluding That the Security Certificate Was Reasonable?\n\nHaving concluded that Mr. Harkat received a fair process, the only remaining issue is whether Noël J. committed any reviewable errors in concluding that the security certificate referred to him by the ministers was reasonable. Mr. Harkat raises a single argument: that the trial judge erred in his weighing of the evidence.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-47", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 108–109", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The designated judge’s weighing of the factual evidence on the record is entitled to appellate deference and should only be interfered with if he committed a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Mr. Harkat identifies only one specific instance where the judge, in his view, committed a palpable and overriding error. He contends that Noël J. erred in finding that an individual named Ibn Khattab facilitated terrorist activities, since a judge in another security certificate case found that Ibn Khattab could not be characterized as engaging in or facilitating terrorism: see Almrei, 2009 FC 1263. I cannot accept that submission. In the Almrei case, the designated judge was careful to qualify his findings on Ibn Khattab as limited to the facts and the record before him. Indeed, he stated that “[t]he weight of the evidence before me in this case favours a finding that he [i.e. Ibn Khattab] was not a terrorist in his own right or a terrorist patron but I accept that there are reasonable grounds to believe the contrary”: para. 457 (emphasis added).\n\nNoël J. was entitled to make his own assessment of whether Ibn Khattab was involved in terrorist activities, based on evidence that he found to be reliable and appropriate. I would not interfere with his assessment. Nor do I find any palpable and overriding error in Noël J.’s weighing of the evidence or in his assessment of Mr. Harkat’s credibility, both of which in his view provided reasonable grounds to establish Mr. Harkat’s inadmissibility. IV. Conclusion", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-48", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 110–111", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The IRPA scheme does not provide a perfect process. However, it meets the requirements of procedural fairness that are guaranteed by s. 7 of the Charter . The discretion granted to designated judges is the crucial ingredient that allows the proceedings to remain fair from beginning to end. Designated judges must ensure that the named person receives sufficient disclosure of the information and evidence to be able to give meaningful instructions to his public counsel and meaningful guidance to his special advocates, must refuse to admit evidence that is unreliable or whose probative value is outweighed by its prejudicial effects, and must take a liberal approach towards authorizing communications by the special advocates. And in cases where the inherent limitations of the IRPA scheme create procedural unfairness, designated judges must exercise their discretion under s. 24(1) of the Charter to grant an appropriate remedy.\n\nIn the present case, Mr. Harkat benefited from a fair process. The designated judge did not err in refusing to exclude summaries of intercepted conversations and to allow the cross-examination of human sources. In addition, he did not commit a palpable and overriding error in concluding that the record provided reasonable grounds to find that Mr. Harkat was inadmissible on security grounds. Consequently, I would allow the appeal in part and dismiss the cross-appeal. Noël J.’s conclusion that the security certificate was reasonable is reinstated.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-49", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 112–113", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the closed hearing, the ministers requested that they be allowed to review these reasons before they are released to Mr. Harkat and to the public. I would not allow this. The information contained within these reasons has already been publicly disclosed in the reasons of the courts below; it poses no risk to national security. The following are the reasons delivered by\n\nAbella AND Cromwell JJ. (dissenting in part on the appeal) — An individual who comes forward with information about a potential terrorist threat, often risks his or her life in doing so if his or her identity is disclosed. Offering the possibility of anonymity only if a court subsequently agrees to protect the source’s identity, requires the source to choose between risk of personal harm if his identity is not protected, or risk of harm to the public if the information is not disclosed. That is the inevitable result of a case-by-case approach as suggested by the majority. In our view, with respect, this choice is not only an unacceptable one from the point of view of the public’s safety, it is unnecessary.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-50", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 114–115", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Like Noël J., in our view, CSIS informants who provide national security information based on a promise of confidentiality are entitled to the assurance that the confidentiality will be protected. This can only be guaranteed by a class privilege, as is done in criminal law cases. A case-by-case approach results in a source not knowing the likelihood the promise will be kept until a judge engages in a retrospective assessment as to whether the promise will be kept. This is hardly conducive to encouraging informants to risk their lives by coming forward to offer highly sensitive information in terrorism cases. While we otherwise agree with the reasons of the Chief Justice, therefore, we do not share her view of what protection national security sources are entitled to. Analysis\n\nInformer privilege has been judicially recognized for more than two centuries and has a dual purpose: protection of a channel of information and the safety of those supplying it (Stanley Schiff, Evidence in the Litigation Process (4th ed. 1993), at pp. 1550-56). As Professor Schiff explains: The rationale of the privilege makes it available in all manner of proceedings, including those before commissions of enquiry and administrative tribunals. The rationale also makes it available if the informant spoke to a public agency other than the police, so long as the agency has law enforcement authority. . . . By the same token, the privilege is not available if the public official to whom the informer spoke has no law enforcement authority . . . . [Emphasis added; pp. 1551-52.]", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-51", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 116–117", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "It has therefore been applied in settings other than criminal prosecutions, including commissions of inquiry: Bisaillon v. Keable, [1983] 2 S.C.R. 60. Numerous decisions of the Federal Court have applied informer privilege to sources who provided confidential information to a parole board (see Rice v. National Parole Board (1985), 16 Admin. L.R. 157 (T.D.), at pp. 167-68; Wilson v. National Parole Board (1985), 10 Admin. L.R. 171 (T.D.), at p. 188; Cadieux v. Director of Mountain Institution, [1985] 1 F.C. 378 (T.D.), at pp. 397-98). It has also been applied to an informer of a securities regulator: A. v. Drapeau, 2012 NBCA 73, 393 N.B.R. (2d) 76.\n\nWigmore refers to the informer privilege as one relating to the identity of persons supplying the government with information concerning the commission of crimes. . . . . . . . . . the principle is a large and flexible one. It applies wherever the situation is one where without this encouragement the citizens who have special information of a violation of law might be deterred otherwise from voluntarily reporting it to the appropriate official. [Emphasis deleted.] (John Henry Wigmore, Evidence in Trials at Common Law (McNaughton rev. 1961), vol. 8, at pp. 761 and 767-68)", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-52", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 118–119", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court has repeatedly held that unlike Crown privilege or privileges based on Wigmore’s four-part test, the police informer privilege does not permit a balancing of the benefits of protecting the privileged information against countervailing benefits: Bisaillon, at pp. 93-98. This recognizes that the danger to the safety of the informer and to the intelligence-gathering process is considered to be too great to permit the consideration of countervailing factors: R. v. Leipert, [1997] 1 S.C.R. 281, at para. 12; Named Person v. Vancouver Sun, [2007] 3 S.C.R. 253, at paras. 19-22. In Bisaillon, this Court stated: This procedure, designed to implement Crown privilege, is pointless in the case of secrecy regarding a police informer. In this case, the law gives the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are in conflict, since it has already resolved the conflict itself. It has decided once and for all, subject to the law being changed, that information regarding police informers’ identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice. [Emphasis added; pp. 97-98.]\n\nIn R. v. Basi, [2009] 3 S.C.R. 389, at para. 44, this Court went so far as to conclude that allowing counsel to participate in an in camera hearing involving a police informant was impermissible, even if they undertook not to disclose any privileged information: No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-53", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 120–121", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The privilege for informers in the context of state officials investigating matters of national security is not a “new” privilege, but a well-established one. The Ontario Court of Appeal has recognized a common law CSIS source privilege: R. v. Y. (N.), 2012 ONCA 745, 113 O.R. (3d) 347. This case involved the transfer of Shaikh, an informant, from CSIS to the RCMP. One issue before the court was whether the informant had at some point become a state agent for the purposes of entrapment and abuse of process analyses. The court accepted that Shaikh had informant status while working with CSIS: see paras. 12 and 120. The court’s conclusion that Shaikh was not a state agent was premised in part on the fact that he had not intended to waive the confidentiality protections associated with his informant status: paras. 123-25. The court defined a “confidential informant” as a “voluntary source of information to police or security authorities”: para. 122 (emphasis added).\n\nThe common law’s protection of informer privilege is based on the common sense recognition that engaging in a case-by-case balancing of interests would frustrate the rationale of informer privilege by discouraging the cooperation of informants. As the U.S. Supreme Court explained in a related context, leaving disclosure to individual judges would cause national security sources to “close up like a clam”: Central Intelligence Agency v. Sims, 471 U.S. 159 (1985), at p. 175.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-54", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 122", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court recognized the breadth of the privilege in Solicitor General of Canada v. Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario, [1981] 2 S.C.R. 494. The issue was whether RCMP officers could be compelled to disclose to the Commission the identities of individuals who, based on an assurance of confidentiality, gave information to police officials. The Court concluded that the privilege prevented disclosure. The Court held that the immunity from disclosure is “general in scope”, applying not only in criminal proceedings but also in civil proceedings, before commissions of inquiry and in “forensic investigations” generally (pp. 535-36). Writing for the majority, Martland J. emphasized that the rationale which supports the privilege applies with even more cogency in the national security context: A large number of the instances in which, in the present case, it was sought to obtain from the police the names of their informants concerned police investigation into potential violence against officers of the state, including heads of state. These investigations were admittedly proper police functions. The rule of law which protects against the disclosure of informants in the police investigation of crime has even greater justification in relation to the protection of national security against violence and terrorism. [Emphasis added; p. 537.]", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-55", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 123", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Before CSIS was created as an independent agency, the intelligence function it now carries out was performed by the RCMP Security Service: see Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (the “McDonald Commission”), First Report, Security and Information (1979), and Second Report, Freedom and Security under the Law, vols. 1 and 2 (1981). The McDonald Commission, which led to the creation of an independent intelligence agency in Canada, was of the view that informer privilege applied to RCMP officers performing intelligence work: see Second Report, vol. 2, at pp. 1162-63. It explained the importance of preserving informant confidentiality as follows: Security and intelligence activities cannot be carried out effectively without the use of informants. Informants are the main source of information for security and intelligence agencies. Whether the informants are paid or voluntary they invariably provide the information on the basis that their identity will be kept secret and that every effort will be made to ensure that it remains so. Their reasons for wanting their identity to remain secret are myriad and include fear of physical retaliation, harassment or ostracism. Any uncertainty about the ability of agencies to keep sources confidential will result in a “drying up” of such sources. (First Report, at p. 42)", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-56", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 124–125", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The mandate of the RCMP Security Service was set out in a cabinet directive of 1975 as being to “‘discern, monitor, investigate, deter, prevent and counter’ persons engaging in subversive or other activity inimical to national security”: Parliamentary Research Branch, “The Canadian Security Intelligence Service” (2000), Current Issue Review 84-27E, at p. 4. Those functions are now found in s. 12 of the Canadian Security Intelligence Service Act , R.S.C. 1985, c. C-23 , which states that “[t]he Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada.”\n\nAs this Court pointed out in Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 S.C.R. 326 (“Charkaoui II”), “the activities of the RCMP and those of CSIS have in some respects been converging”: para. 26. There is no doubt that informer privilege applied to RCMP Security Service informants. While it is true that the functions of CSIS and the RCMP are distinct, the rationale for the informer privilege applies equally to the work of both. The transfer of functions from the RCMP Security Service to CSIS should have no bearing on whether the privilege continues to exist. The investigatory and monitoring services CSIS performs are those previously carried out by the RCMP. There has been a statutory transfer, but not a functional one.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-57", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 126", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The erection of an artificial boundary between them could lead to absurd results. A source who began supplying information to the police regarding a suspected terrorist threat and then later provided information to CSIS would be entitled to the privilege with respect to the former but not the latter interaction, even if the same assurances of privilege had been given by both agencies. This is not an abstract problem, given the frequent cooperation between the two agencies.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-58", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 127", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Two recent cases illustrate the way sources are shared in national security investigations: R. v. Ahmad, 2009 CanLII 84776 (Ont. S.C.J.), at paras. 31-34; Y. (N.), at para. 120. Ahmad involved information obtained by CSIS and shared with the RCMP, which led to criminal prosecutions for terrorism offences. Y. (N.) involved the transfer of a human source from CSIS to the RCMP. In Ahmad, Dawson J. made the following observation about the nature of the relationship between CSIS and the RCMP: . . . situations will arise where some sharing of information must occur if each organization is to fulfill its mandate. For example, where CSIS comes into possession of information of a real threat to national security, or learns of serious criminal activity, it must notify the RCMP. As Mr. Brooks indicated at para. 15 of his affidavit, CSIS will normally be engaged in the investigation of threats to the security of Canada before the police would have sufficient evidence to commence an investigation on their own. He also points out in his evidence that intelligence gathering investigations are very open ended and wide ranging, with the focus on looking for trends and relationships to help predict emerging or future threats. Such investigations are not oriented towards prosecution. It is the function of the police to react to any information provided by CSIS and to determine how best to proceed from a police perspective. [para. 34]", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-59", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 128–129", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "To argue that it is unjust for the ministers to claim privilege over the identity of CSIS human sources while continuing to rely on the information obtained from them, is to forget the significant distinction between whether the privilege exists and whether the information provided by the human source can be used to establish the reasonableness of the certificate. Where the information has been redacted and anonymized so that the identity of the human source cannot be ascertained, there is no reason that it must always be eliminated from consideration by the designated judge. There is an obvious analogy to the well-settled law that permits confidential informant information to be considered, for example, in an information to obtain a search warrant and in a wiretap authorization: R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1456. In these contexts, the law has developed some protections, but under certain conditions it nonetheless allows the confidential source material to be considered without the cross-examination of the source.\n\nNoël J. found that “the recruitment of human sources would be harmed if the guarantees of confidentiality given by the Service were not upheld by this Court”: 2009 FC 204, at para. 28. He set out some possible safeguards and lines of inquiry that could help ensure that anonymous source material is sufficiently reliable that it could fairly be considered as part of the review of the reasonableness of the certificate: paras. 64-67. In addition, if a reviewing judge were of the view that consideration of confidential source material would result in a review hearing that does not meet the Charkaoui II standard, the judge could exclude that information from consideration.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-60", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 130–131", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "There may also be limited circumstances in which the special advocates could be granted access to the privileged information, namely where it is necessary so that the validity of the claim of privilege can be tested. In a criminal trial, the trial judge can look at privileged information where doing so is necessary to establish that the privilege is properly claimed. In Vancouver Sun and in Basi, at para. 57, it was held that in certain circumstances an amicus curiae may be considered to be part of the “circle of privilege”.\n\nThe special advocates may play a similar role in closed proceedings. While this Court held in Basi that it was impermissible for the accused’s counsel to view privileged information based on the need to preserve the integrity of the solicitor-client relationship, different considerations apply to special advocates. The special advocate is not in a solicitor-client relationship. Furthermore, he or she is subject to heightened security clearance requirements which reduce the risk that disclosure may pose. As a result, if the designated judge believes that submissions by special advocates could assist in determining whether a privilege claim is valid, they may be entitled to view the privileged information. Submissions based on information identifying the human source should be limited to the validity of the privilege claim and not extend to the reliability of the information.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-61", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 132–133", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Nor do we think the privilege is abrogated by statute. The Federal Court of Appeal was of the view that when Parliament enacted the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), it comprehensively legislated the disclosure obligations of the Minister in the security certificate context such that there was no room for importing common law privileges to qualify the disclosure obligations of the Minister. Since ss. 77(2) and 83(1) (c) to (e) of IRPA specify that the Minister and judge may not disclose information which is injurious to national security or which puts the safety of any person at risk, recognizing a class privilege would mean that disclosure could be withheld in a case where neither of these two factors was present.\n\nWe are unpersuaded that the common law has been ousted by these provisions. In order to abrogate a common law privilege, Parliament must clearly express an intention to do so: see Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 S.C.R. 574, at para. 26. IRPA makes no reference to informer privilege and, as discussed later in these reasons, does not evince a clear intention to deprive CSIS human sources of its benefit.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-62", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 134", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "IRPA also fails to distinguish between what disclosure means in the context of ss. 77(2) and 83(1)(c) to (e) and what it means in the context of disclosing privileged information to the special advocates. Section 77(2) of IRPA provides that the Minister must file with the court the information and other evidence on which the security certificate is based. On the other hand, disclosure of information subject to informer privilege raises different considerations. This information will generally not have been provided to the judge under s. 77(2) and so will not form part of the judge’s decision on the reasonableness of the issuance of the security certificate. The only provision of IRPA which would govern such a scenario is s. 85.2, which sets out the powers of a special advocate, and, in particular, s. 85.2(c), which states that a special advocate may “exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national”. The same analysis applies with respect to ss. 37 and 38 of the Canada Evidence Act , R.S.C. 1985, c. C-5 . This Court held in Basi that where a claim of informer privilege falls under s. 37 of the Canada Evidence Act , the usual public interest balancing exercise under s. 37(5) is displaced by the common law privilege: paras. 23-24. Additional protection is therefore provided for national security secrets but without abrogating the underlying common law privileges.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-63", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 135–136", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "The final question relates to whether an exception to the privilege should apply in the security certificate context. Noël J. was of the view that there was a “need to know” exception, analogous to the “innocence at stake” exception to the police informer privilege. This exception means that the privilege can be set aside in cases where maintaining it would undermine the accused’s ability to raise a reasonable doubt. The “need to know” exception would similarly be engaged when abrogating the privilege is necessary to prevent a serious breach of procedural fairness that would impugn the administration of justice. On the facts before him, Noël J. held that the requirements of the “need to know” exception had not been met and therefore denied the special advocates’ request.\n\nIn our view, the “need to know” exception outlined by Noël J. is overly broad: 2009 FC 204, at para. 46. We agree with the ministers that this exception is broader than the “innocence at stake” exception because the latter applies only where there is a risk of an unjust outcome, whereas the “need to know” exception applies where there is an unjust procedure. It also appears to overlook the considerable procedural flexibility that is available to the reviewing judge and the particular role of the special advocate.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-64", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "para 137", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "But given the intensity of the interests at stake in the security certificate context, we acknowledge that it would be appropriate to recognize a limited exception specifically crafted for the security certificate process which would address only disclosure to the special advocate, not to the subject of the proceedings. Identity should be disclosed only if the reviewing judge is satisfied that other measures, including withdrawing the substance of the informant’s evidence from consideration in support of the certificate, are not sufficient to ensure a just outcome. Noël J. ordered generous disclosure of material to the special advocates concerning the credibility of informers and the information they supplied. He allowed cross-examination of CSIS witnesses on the value, reliability and usefulness of informer information. In some circumstances, he relied on informer information only where it had been corroborated. If these measures are not considered adequate, the reviewing judge also has discretion under s. 83(1) (h) of IRPA to refuse to rely on evidence that he or she does not consider to be reliable and appropriate. Only if resort to these measures would not ensure a just outcome should identity be disclosed.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-13643-65", - "doc_type": "caselaw", - "act_code": "2014 SCC 37", - "act_short": "Harkat", - "act_name": "Canada (Citizenship and Immigration) v. Harkat", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37", - "marginal_note": "paras 138–139", - "heading": "Constitutionality of the IRPA security-certificate regime and the special advocate scheme", - "part": "Supreme Court of Canada", - "division": "", - "text": "Even when disclosure of identity is ordered, there should be no cross-examination of the source by the special advocate. Requiring a human source to testify will have a profound chilling effect on the willingness of other sources to come forward, and will undoubtedly damage the relationship between CSIS and the source compelled to testify. CSIS operatives must be able to provide confident assurances to their sources that their identities will not be revealed, not vague assurances hedged with qualifications. Moreover, the human sources themselves, who are not subject to the necessary security clearance, may learn sensitive material in the closed proceedings which CSIS will then be unable to control.\n\nWe would therefore allow the ministers’ appeal on the informant privilege issue and restore Noël J.’s disposition of this issue.", - "current_to": "2014-05-14", - "last_amended": "", - "history": "[2014] 2 SCR 33", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13643/index.do" - }, - { - "id": "scc-7899-1", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 1–2", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "This appeal requires us to reconcile Canada’s competing obligations with respect to extradition and refugee protection. Under international treaties and domestic law, Canada has undertaken not to return refugees to face the persecution they fled. This is known as the principle of non-refoulement and it is a cornerstone of refugee protection. Canada also has obligations under treaties and domestic law to extradite persons who are sought by foreign states to face criminal prosecutions or serve sentences. These are important obligations that relate not only to Canada’s engagements with other states, but also to the effectiveness of law enforcement. These two obligations in relation to non-refoulement and extradition may collide, however, when Canada is faced with a request to extradite refugees to a state which they fled to avoid persecution. This case is an example.\n\nThe appellants came to Canada and were given refugee protection; they persuaded the authorities that they had a well-founded fear of persecution in their native Hungary on the basis of their Roma ethnic origin. Years later, Hungary requested Canada to extradite them and the Minister of Justice eventually ordered their surrender for extradition. His decision was upheld on review by the Quebec Court of Appeal: 2009 QCCA 99, 2009 CarswellQue 8504. The appellants contend on appeal to this Court that, because of Canada’s non-refoulement obligations, they may not be extradited back to Hungary so long as they retain their refugee status in Canada. The respondent takes the view that the appellants may be extradited in spite of their refugee status because they are charged in Hungary with a serious non-political crime and have failed to establish any continuing risk of persecution upon their return.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-2", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 3–4", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The resolution of the appeal requires an interpretation of the Extradition Act , S.C. 1999, c. 18 (“EA ”), and the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), that reconciles the competing obligations in relation to extradition and non-refoulement. I agree with the respondent that, under certain conditions, the appelants may be extradited to their country of origin even though their refugee status under Canadian law has not formally ceased or been revoked. However, my view is that the Minister of Justice (“Minister”) did not apply the correct legal principles when he decided to surrender the appellants for extradition. He imposed on them the burden of showing that they would suffer persecution if extradited and by doing so, gave insufficient weight to the appellants’ refugee status and to Canada’s non-refoulement obligations. I would therefore allow the appeal and remit the matter to the Minister of Justice for reconsideration according to law. II. Facts and Proceedings\n\nOn arriving in Canada in 2001, the appellants, who are a couple, applied for refugee status for themselves and their children, alleging that acts of violence had been committed against them in their country of origin, Hungary. Their application was based on three incidents between 1997 and 2001 in which the male appellant, together on one occasion with the female appellant, was attacked by Hungarian citizens because of their Gypsy ethnic origin. The appellants and their children were granted refugee status and became permanent residents.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-3", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 5–6", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Some two years later, Hungary issued an international arrest warrant in respect of a charge of fraud that had been laid against the appellants. The Hungarian authorities allege that in early November 2000, the couple sold the right of lease for premises in Budapest for approximately C$2,700, despite the fact that they did not possess the right to lease the flat.\n\nThe Minister sought an order from the Superior Court of Quebec for the appellants’ committal on the Canadian offence of fraud contrary to s. 380(1) of the Criminal Code , R.S.C. 1985, c. C-46 , which corresponds to the conduct alleged against them in Hungary. The committal order was granted and has not been appealed.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-4", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 7", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Minister then ordered their surrender. In reaching his decision, he considered the principle of non-refoulement, but concluded it did not stand in the way of ordering the appellants’ surrender. The Minister noted first that there is an exception to non-refoulement with respect to persons who are accused of a serious non-political offence which he noted was defined in the immigration context to be an offence punishable by imprisonment of 10 years or more. Fraud, he noted, is such a crime. He did not, however, address the appellants’ contention that, given the amount of the alleged deprivation, the offences alleged against them would not attract a punishment of 10 years in Canada. The Minister then turned to the issue of risk of persecution. He stated his view that persons challenging their surrender on the basis that they will be persecuted in the requesting state must establish two things on the balance of probabilities: that the persecution would sufficiently shock the conscience or be fundamentally unacceptable to Canadian society and that they will in fact be subjected to this persecution. The relevant time for assessing this, he said, is the present, not the time at which refugee status had been granted, in this case, some six years earlier. To assist his consideration of risk the appellants would face if returned to Hungary, the Minister sought and received the views of the Department of Citizenship and Immigration. The advice was to the effect that, following Hungary’s accession to the European Union in 2004, there was no serious possibility that the appellants would be subjected in Hungary to persecution on the basis of their Roma origin.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-5", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 8–9", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellants sought judicial review of this decision in the Quebec Court of Appeal. Doyon J.A., writing for the Court of Appeal, dismissed the joint application for judicial review. In his view, the respondent had jurisdiction to order the surrender of the appellants after having consulted with the Minister of Citizenship and Immigration (“MCI”) about this. Doyon J.A. also concluded that the respondent’s decision was reasonable: [translation] He could reasonably conclude that the situation in Hungary is such that extradition of the applicants is not oppressive or unjust, does not shock the conscience of Canadians, and is not unacceptable. The opinion of the Minister of Citizenship and Immigration authorized him to conclude that the situation in Hungary has changed since the applicants’ departure. Hungary’s accession to the European Union in May 2004 is proof that the country has satisfied certain criteria with regard to the stability of its democratic institutions, the rule of law, human rights, and the respect and protection of minorities; it has also had to harmonize its laws and institutions with those of the European Union. The detailed risk analysis sent by the Minister of Citizenship and Immigration permits the assertion that the respondent could reasonably conclude that there is no longer a risk of persecution in Hungary on the basis of racial origin and that these changes indicate that the situation there is completely different from the situation there about a decade ago. [para. 38] III. Issues and Standard of Review\n\nThe case raises two main issues: 1. Does the Minister have the legal authority to surrender for extradition a refugee whose refugee status has not ceased or been revoked? 2. If so, did the Minister exercise that authority reasonably in this case?", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-6", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 10", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The standard of judicial review is not contentious. The Minister’s decision to surrender for extradition should be treated with deference; it will generally be reviewed for reasonableness. However, in order for a decision to be reasonable, it must relate to a matter within the Minister’s statutory authority and he must apply the correct legal tests to the issues before him. As LeBel J. said on behalf of the Court in Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41: [T]he Minister must, in reaching his decision, apply the correct legal test. The Minister’s conclusion will not be rational or defensible if he has failed to carry out the proper analysis. If, however, the Minister has identified the proper test, the conclusion he has reached in applying that test should be upheld by a reviewing court unless it is unreasonable. . . . Given the Minister’s expertise and his obligation to ensure that Canada complies with its international commitments, he is in the best position to determine whether the factors weigh in favour of or against extradition. [Emphasis added.] IV. Analysis A. Introduction", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-7", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 11–12", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The parties advance two competing approaches to the question of how to reconcile Canada’s obligations with respect to non-refoulement and extradition. The appellants (to put their position in broad terms) submit that the powers to extradite under the EA must be read as being subject to the detailed scheme for the treatment of refugees under the IRPA . In brief, a person with refugee status cannot be extradited until the refugee status has ceased or been revoked through the processes set out in the IRPA . The respondent, on the other hand, submits that the interaction of extradition and non-refoulement is addressed mainly through the EA and, more particularly, through the mandatory and discretionary bases on which the Minister may refuse surrender of a person sought for extradition.\n\nMy analysis will be structured around these two competing approaches. In the next section I will explain why in my view, the appellants’ central contention — that the power to surrender for extradition is subject to the refugee process under the IRPA — cannot be accepted. In the following section, I will address the respondent’s position, which I largely accept, that protection against refoulement is addressed in the extradition context by the mandatory and discretionary bars of surrender in the EA . I will also explain why, in my view, the Minister applied the wrong legal tests in exercising those powers in this case. B. The Minister’s Authority to Extradite a Refugee", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-8", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 13–14", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellants’ and supporting interveners’ main submission is that, as a matter of statutory interpretation, the Minister dealing with an extradition request is bound by a finding under the IRPA that the person sought is a refugee and cannot surrender that person for extradition unless his or her refugee status has ceased or been vacated using the procedures provided for under the IRPA . This limitation, the appellants say, must be read into the EA for three main reasons. I will refer to these submissions as the “conflict” argument, the “silence” argument and the “fair process” argument. The first two will be addressed here and the third in the next section of my reasons. (1) The Conflict Argument\n\nThe first submission is that the Minister’s powers under the EA should be interpreted as not applying to refugees in order to avoid a conflict between the provisions of the EA and the IRPA. This submission is supported by the principle of statutory interpretation which presumes harmony, coherence, and consistency between statutes dealing with the same subject matter: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, at paras. 30 and 52; Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 223-25.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-9", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 15–16", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The supposed conflict is between the non-refoulement provision (s. 115) of the IRPA and the Minister’s powers of surrender under the EA . Section 115 of the IRPA provides that a “protected person”, which includes a refugee, “shall not be removed from Canada to a country where they would be at risk of persecution”. The general powers of the Minister to surrender a person for extradition under the EA have no express limitation or exception relating to refugees. Thus, it is argued that the statutes conflict because the IRPA prohibits removal of a refugee to a place he or she will face persecution while the EA permits the Minister to do so by means of surrendering the person for extradition. The appellants’ position is that this conflict should be avoided by interpreting the Minister’s power of surrender under the EA as being subject to a requirement that a refugee may only be surrendered to the country he or she fled if the refugee’s status has ceased or been revoked by means of the processes set out in the IRPA .\n\nIn my view, there is no conflict between the IRPA and the EA because the prohibition on removal from Canada under s. 115 of the IRPA does not apply to extradition. Before turning to my reasons for reaching that conclusion, it will be helpful to place the issue in the broader context of refugee protection in Canada.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-10", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 17", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Canada has ratified the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”), as well as the 1967 Protocol Relating to the Status of Refugees, Can. T.S. 1969 No. 29. The Refugee Convention defines “refugee” and sets out a series of obligations to them on the part of contracting states. While the Refugee Convention applied only to events occurring before January 1, 1951 (Article 1A(2)) and, at the option of the contracting party, only to events occurring in Europe, the state parties to the 1967 Protocol agreed to eliminate this temporal and geographical limitation on the Refugee Convention’s operation, with certain exceptions not relevant here (Article 1). Thus, under the Refugee Convention and the Protocol, the definition of refugee includes “any person who . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” (Refugee Convention, Article 1A(2)).", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-11", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 18–19", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the heart of the protections accorded to refugees under the Refugee Convention are the provisions relating to expulsion and return. Most relevant to the appeal is Article 33 which addresses the return of refugees to places where they may face persecution. This article embodies in refugee law the principle of non-refoulement which has been described as the cornerstone of the international refugee protection regime: United Nations High Commissioner for Refugees, Guidance Note on Extradition and International Refugee Protection (April 2008). Underlining the centrality of this provision is the fact that, by virtue of Article 42 of the Refugee Convention, ratifying states may not make reservations to the non-refoulement protections afforded by Article 33.\n\nStated in broad and general terms, the principle of non-refoulement prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations. The object of the principle is the prevention of human rights violations and it is prospective in scope: Kees Wouters, International Legal Standards for the Protection from Refoulement: A Legal Analysis of the Prohibitions on Refoulement Contained in the Refugee Convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention Against Torture (2009), at p. 25. The principle of non-refoulement has been enlarged beyond its application to refugees by modern international human rights law, but it is its scope in relation to the Refugee Convention that is pertinent to this appeal: William A. Schabas, “Non-Refoulement”, in Expert Workshop on Human Rights and International Co-operation in Counter-Terrorism: Final Report (2007), 20, at p. 23.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-12", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 20–21", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 33 of the Refugee Convention provides: Article 33 Prohibition of Expulsion or Return (“Refoulement”) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.\n\nThe main legislative vehicle for implementing Canada’s international refugee obligations is the IRPA . Among the statute’s stated objectives is fulfilling Canada’s international legal obligations with respect to refugees: s. 3(2)(b). The IRPA provides that it is to be construed and applied in a manner that ensures that decisions taken under it are consistent with the Canadian Charter of Rights and Freedoms and comply with international human rights instruments to which Canada is signatory: s. 3(3)(d) and (f). The statute expressly incorporates certain provisions of the Refugee Convention. With some exceptions, the MCI is responsible for the administration of the Act: s. 4(1).", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-13", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 22", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "That brings me to the provision in the IRPA on which the appellants rely heavily, s. 115. It is a statutory expression of the principle of non-refoulement providing that a protected person (which, by virtue of s. 95(2) includes a person on whom refugee protection is conferred) “shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion”. The full provision reads: Principle of Non-refoulement 115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. (2) Subsection (1) does not apply in the case of a person (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-14", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 23–24", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 115 is directed to fulfilling Canada’s obligations under the Refugee Convention in relation to non-refoulement and there is, accordingly, a close correspondence between it and the relevant provisions of the Refugee Convention. The grounds on which removal is prohibited in s. 115(1) (i.e., risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or a risk of torture or cruel and unusual treatment or punishment) closely parallel those in Article 33 (life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion). The exceptions to the application of s. 115(1) as set out in s. 115(2) (serious criminality, danger to the public, violating human rights or danger to Canada’s security) closely follow the exclusions from the definition of refugee in Article 1F of the Refugee Convention (war crime, crime against humanity, serious non-political crime) and the grounds for expulsion of refugees provided for in Article 32 (national security or public order).\n\nI return, then, to the contention that s. 115, and particularly the phrase “shall not be removed from Canada”, prohibits extradition of a refugee. The submission is that the plain meaning of the words includes removal by extradition, that this interpretation is necessary to implement Canada’s obligations under the Refugee Convention; and that the judgment of the Court in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, supports this view. The respondent, on the other hand, submits that “removal” is a term of art under the IRPA and applies only to removal orders made under that Act.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-15", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 25–26", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "For the following reasons, I agree with the respondent. (a) Ordinary Meaning\n\nThe appellants emphasize the ordinary meaning of the words “removed from Canada” in s. 115(1) and that extradition is a form of “removal”. I agree, of course, that the ordinary meaning of these words is broad enough to include removal by any means including extradition. However, according to the often repeated “modern principle” of statutory interpretation, the words used in the IRPA must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Rizzo & Rizzo Shoes Ltd.(Re), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. When this is done, it becomes clear in my view that the term “removed” has a specialized meaning in the IRPA and that it does not include removal by extradition.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-16", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 27", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 115 must be considered in the context of the other provisions of the statute which also deal with the subject of removal. Division 5 of Part I of the IRPA addresses “Loss of Status and Removal”. The term “removal” is used in connection with the term “removal order” which is a specific order authorized by the IRPA in particular circumstances set out in detail therein: see, e.g., ss. 44(2), 45(d) and 48. “Removed” and “removal”, therefore, are words used in relation to particular procedures under the IRPA . This view is reinforced by the Immigration and Refugee Protection Regulations, SOR/2002-277. Section 53 of the IRPA provides that the regulations made under the IRPA may include provisions respecting “the circumstances in which a removal order shall be made or confirmed against a permanent resident or a foreign national”: s. 53(b). Part 13 of the Regulations, addresses removal. Section 223 specifies that there are three types of removal orders: departure orders, exclusion orders and deportation orders. Surrender orders under the EA are not included. The linking of removal to these three types of orders further reinforces the view that the words “removed” and “removal” refer to particular processes under the IRPA .", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-17", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 28", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "This view is also supported by the terms of s. 115 itself. Section 115(1) provides that a protected person may not be “removed from Canada” to face persecution, risk of torture or cruel and unusual punishment. However, s. 115(2) creates exceptions to this prohibition in relation to persons who are inadmissible on certain grounds. Under s. 115(2)(a), protection against removal in s. 115(1) does not apply in the case of a person who is inadmissible on grounds of serious criminality and who in the opinion of the MCI constitutes a danger to the public. Inadmissibility on the grounds of serious criminality is addressed under s. 36 of the IRPA . Under s. 115(2)(b), the protection does not apply to persons inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the MCI, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada. Inadmissibility on the grounds of security, human rights violations and organized criminality are dealt with in the IRPA : ss. 34, 35 and 37. Thus, s. 115 deals with inadmissibility as defined under the IRPA and calls for the exercise of discretion by the MCI in relation to the danger of the person remaining in Canada. This, in my view, grounds the section in the processes of determining inadmissibility and ordering removal under the IRPA . It does not address extradition.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-18", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 29–30", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is also worth noting that while s. 115 of the IRPA does not refer to extradition, it is mentioned elsewhere in the IRPA . So, as we shall see shortly, s. 105 of the IRPA deals explicitly with certain aspects of the interaction of extradition proceedings and refugee claims and s. 112(2) (a) of the IRPA precludes persons from applying for protection under s. 112(1) when they have been ordered removed from Canada and have extradition proceedings pending against them. The IRPA , therefore, in certain instances expressly deals with the interplay between extradition and the refugee and the removal process. The fact that it does supports an inference that when Parliament intended to address that interplay, it did so expressly. There is, as noted, no express provision in the IRPA dealing with the extradition of refugees.\n\nFinally on this point, the time limits for the Minister’s surrender decision under the EA make it unlikely that Parliament intended to require him to await an application by the MCI under the IRPA for revocation or cessation of refugee status before being able to surrender a refugee. Sections 40(1) and (5) (b) of the EA require the Minister to order surrender, if he so decides, within 90 days after the person’s committal, with the possibility of a 60-day extension when the person has made submissions. These timelines are unrealistically short to allow the Minister to request the MCI to apply to the Refugee Protection Division for cessation or revocation of a person’s refugee status and for that process to run its course as a precondition for the exercise of the Minister’s surrender powers.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-19", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 31–32", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "To conclude on this point, my view is that when s. 115 is read in context, it is clear that the words “removed from Canada” in s. 115(1) refer to the removal processes under the IRPA , not to surrender for extradition under the EA . There is, therefore, no conflict between the two statutes. (b) Canada’s International Obligations\n\nThe appellants submit that as s. 115 is addressed to the issue of non-refoulement it should be interpreted in a way that is consistent with Canada’s non-refoulement obligations under the Refugee Convention. That obligation under Article 33 is not to “expel or return (‘refouler’) a refugee” and it is now widely accepted that this obligation applies to removal by way of extradition. It follows, the submission goes, that “removal” in the IRPA should receive the same broad interpretation. Only this interpretation, it is argued, is consistent with Canada’s obligations in relation to non-refoulement under the Refugee Convention. While I agree with the principle on which this submission is based, I do not agree that it applies here.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-20", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 33", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "I accept that protection against refoulement under the Refugee Convention applies to expulsion by extradition. Admittedly, the Refugee Convention does not explicitly say so and a number of states in 1951 were of the view that it did not apply to extradition. However, this restrictive view is not consistent with the wording of the Refugee Convention or its obvious human rights purpose and this limited view is no longer generally accepted. The wording of the protection — “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever” — is so broad that it must include return by means of extradition and the commentators are unanimous in the view that it does: Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd ed. 2007), at pp. 257-62; Wouters, at p. 136; Sibylle Kapferer, United Nations High Commissioner for Refugees, The Interface between Extradition and Asylum, November 2003; Elihu Lauterpacht and Daniel Bethlehem, “Avis sur la portée et le contenu du principe du non-refoulement” in Erika Feller, Volker Türk and Frances Nicholson, eds., La protection des réfugiés en droit international (2008), 119, at pp. 144-45; United Nations High Commissioner for Refugees, Problems of Extradition Affecting Refugees, 16 October 1980, No. 17 (XXXI) — 1980; Cordula Droege, “Transfers of detainees: legal framework, non-refoulement and contemporary challenges” (2008), 90 Int’l Rev. Red Cross 669, at p. 677.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-21", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 34–36", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "I also accept, of course, that, where possible, statutes should be interpreted in a way which makes their provisions consistent with Canada’s international treaty obligations and principles of international law. As LeBel J. noted in R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53, it is presumed that the legislature acts in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community as well as in conformity with the values and principles of customary and conventional international law: see also, for example, Zingre v. The Queen, [1981] 2 S.C.R. 392, at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 137; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 70; and Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269, at para. 50.\n\nThe presumption that legislation implements Canada’s international obligations is rebuttable. If the provisions are unambiguous, they must be given effect: see, e.g., Schreiber, at para. 50. As I have discussed at length earlier, s. 115 does not address removal by extradition and so its clear meaning must be given effect. Moreover, I do not accept that this interpretation of s. 115 results in Canadian domestic law failing to respect its non-refoulement obligations under the Refugee Convention. My view is that those obligations in the context of extradition are fully satisfied by a correct interpretation and application of s. 44 of the EA , as I will explain in the next section of my reasons.\n\nTo sum up, my view is that s. 115 cannot and need not be interpreted as applying to removal by extradition. (c) Suresh", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-22", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 37–39", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is submitted that Suresh, at para. 7, supports the position that s. 115 prohibits extradition of a refugee. Respectfully, however, my view is that Suresh does not provide support for this view.\n\nSuresh was concerned with deportation of a refugee on security grounds; it had nothing to do with extradition. Deportation, unlike extradition, is one of the forms of removal provided for in the IRPA Regulations. In para. 7 of the reasons in Suresh, which is the first paragraph of the section headed “Facts and Judicial Proceedings”, there is a brief reference to s. 53(1) of the Immigration Act, R.S.C. 1985, c. I-2, the predecessor provision of the present s. 115 of the IRPA . The Court stated: “Recognition as a Convention refugee has a number of legal consequences; the one most directly relevant to this appeal is that, under s. 53(1) of the Immigration Act, generally the government may not return (‘refouler’) a Convention refugee ‘to a country where the person’s life or freedom would be threatened’” (para. 7). While the Court used the word “return” instead of the statutory word “remove”, I do not consider this brief description of non-refoulement, which I note starts with the word “generally”, as helpful authority about how the relevant section of the IRPA relates to extradition.\n\nI conclude that s. 115 of the IRPA does not address removal by extradition. There is, therefore, no conflict between this provision and the provisions of the EA authorizing the Minister to surrender a refugee for extradition. I reject the conflict argument. (2) The “Silence” Argument", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-23", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 40", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The EA expressly addresses extradition of a refugee claimant (see s. 40(2)) but it is silent in relation to extradition of a person with refugee status. On this foundation, the appellants erect their silence argument: the absence of a provision in the EA expressly addressing the extradition of a person with refugee status should be understood as withholding that power from the Minister. This view is reinforced, according to the submissions, by two other considerations. First, claims for refugee status are determined by specialized processes and decision-makers under the IRPA ; the powers of the Minister under the EA should therefore not be interpreted to allow him in effect to usurp the jurisdiction of these specialized processes and decision-makers. Second, the suspension of refugee proceedings when extradition proceedings are initiated, as provided for in s. 105 of the IRPA , does not apply to all extraditable offences. The suspension applies only to extradition proceedings in relation to offences punishable by 10 years or more of imprisonment. Thus, the legislative intent is to leave in place the normal refugee process for persons sought with respect to less serious offences. This, it is argued, supports the view that suspension is the exception and the general rule is that the refugee process remains in place for individuals not falling within that exception. The appellants, as persons who have previously been accorded refugee protection, do not fall within the exception and therefore are not subject to removal except in accordance with the provisions of the IRPA .", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-24", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 41–43", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "As noted earlier, I accept the two principles underlying these submissions: non-refoulement protection under the Refugee Convention applies to expulsion by extradition and that our domestic laws are presumed to comply with our international obligations. I do not agree, however, that applying these principles in this case leads where the appellants would take us. In my view, the IRPA does not and was not intended to implement Canada’s international obligations against refoulement in the context of expulsion by extradition. That role, as I will explain in the next section of my reasons, is assigned to s. 44 of the EA .\n\nThe “silence” argument is premised on the fact that the EA addresses extradition only in the context of a refugee claimant, not a person with refugee status. However, applying the same reasoning to the IRPA , one notes that the IRPA itself expressly deals with extradition in only two contexts, ss. 112 and 105, neither of which relates to extradition of a refugee. In both contexts, the legislative intent is to give primacy to the extradition proceedings.\n\nExtradition is referred to in s. 112 of the IRPA . That provision deals with applications for protection by those subject to removal orders. Section 112(2)(a) provides that persons may not apply for such protection if they are the subject of an authority to proceed under the EA .", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-25", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 44", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Another context in which extradition is mentioned in the IRPA is in s. 105 dealing with the extradition of persons with pending refugee claims. The section provides that the Refugee Protection Division and the Refugee Appeal Division cannot commence and must suspend consideration of any matter concerning a person against whom an authority to proceed has been issued under s. 15 of the EA with respect to certain offences, namely those punishable under federal law by at least 10 years’ imprisonment. The suspension lasts until a final decision under the EA with respect to the discharge or surrender of the person has been made. If the person is discharged at the extradition proceedings, the refugee proceedings may be commenced or continued: s. 105(2). If the person is ordered surrendered for an offence punishable by a term of imprisonment of at least 10 years, the order of surrender is deemed to be a rejection of the claim for refugee protection based on section F(b) of Article 1 (serious non-political crime) of the Refugee Convention: s. 105(3). The deemed rejection may not be appealed and a person who has not made a claim for refugee status before the order of surrender was made may not do so thereafter: ss. 105(4) and (5).", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-26", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 45", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "These provisions address only those seeking refugee status; not those who already have been granted refugee protection. Further, the provisions do not apply in the case of all offences for which extradition may be ordered. As we shall see, extradition may be ordered if the conduct with respect to which extradition is sought, had it occurred in Canada, would have constituted an offence that is punishable by a term of imprisonment of two years or more (or as specified in the extradition agreement): s. 3(1) of the EA (I put aside the special provision in relation to specific agreements in s. 3(1)(b)(i)). However, the suspension of proceedings before the Refugee Protection Division, as set out in s. 105 of the IRPA , applies only if extradition is sought with respect to conduct which under Canadian law is punishable by imprisonment of 10 years or more: s. 105(1). Presumably, this is to permit the suspension provisions to apply only to those excluded from refugee status under the serious crime exception set out in section F of Article 1 of the Refugee Convention. Thus, for these purposes Canada has defined “serious crimes” as those punishable by 10 years or more of imprisonment and has decided that if there is sufficient evidence to warrant committal in extradition proceedings, the “serious reasons for considering” test under the Refugee Convention in relation to serious non-political crimes has been met.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-27", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 46", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "These suspension provisions were added to the IRPA as consequential amendments when the EA was enacted in 1999. Their purpose was explained by Departmental officials testifying before Parliamentary committees. Resort to this material is appropriate where, as here, it is relevant and reliable and provided it is used with caution and not given undue weight: Sullivan, at pp. 609-14; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 17; Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870, at para. 23; Canada 3000 Inc. (Re), 2006 SCC 24, [2006] 1 S.C.R. 865, at paras. 57-59.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-28", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 47", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The amendments sought to harmonize the extradition and refugee recognition processes and to entrust to the Minister of Justice the ultimate decision about the extradition of a person claiming refugee status: see, for example, testimony of Jacques Lemire, Senior Counsel, International Assistance Group, Department of Justice, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 60, 1st Sess., 36th Parl., March 10, 1999, at pp. 60:6 et seq.; testimony of Gerry Van Kessel (Director General, Refugees, Department of Citizenship and Immigration, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights (November 17, 1998). As Mr. Van Kessel put it during his testimony: . . . the basic question we believe we face is how to deal with persons who are facing extradition and make refugee claims. At the present time they are separate processes. . . . Bill C-40 [which became the 1999 Extradition Act ] changes will legislate the rules for the interaction between the extradition process and the refugee determination process for the first time. . . . Bill C-40 also says protection [i.e. of refugees] remains an issue and a concern that the Minister of Justice needs to deal with, and that is also dealt with in Bill C-40. The choice made there is that the Minister of Justice, before making a final decision on extradition or surrender order, shall refuse to make a surrender if the refugee definition applies . . . . In a sense, what has really changed here is who the decision-maker is. [Emphasis added; at 11:45 and 12:05.]", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-29", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 48–49", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "This evidence is consistent with the text and scheme of the EA and the IRPA: the Minister of Justice was intended to take the lead when a refugee’s rights are implicated in an extradition decision. In addition, the reference in the evidence to the Minister’s duty to refuse surrender “if the refugee definition applies” clearly refers to s. 44 of the EA , not to s. 115 of the IRPA . I will come back to this point.\n\nThe appellants and interveners submit, in effect, that the earlier finding of refugee status under the IRPA is binding on the Minister under the EA until it is ended using the procedures of cessation or revocation under the IRPA . This position, as I have discussed earlier, finds no explicit support in the text of the IRPA or the EA and is inconsistent with the apparent intention of Parliament. Moreover, this “binding effect” argument is not well supported by international law principles.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-30", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 50", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Under the Refugee Convention, refugee status depends on the circumstances at the time the inquiry is made; it is not dependent on formal findings. As one author puts it, “it is one’s de facto circumstances, not the official validation of those circumstances, that gives rise to Convention refugee status”: James C. Hathaway, The Rights of Refugees Under International Law (2005), at pp. 158 and 278. It follows that the rights flowing from the individual’s situation as a refugee are temporal in the sense that they exist while the risk exists but end when the risk has ended. Thus, like other obligations under the Refugee Convention, the duty of non-refoulement is “entirely a function of the existence of a risk of being persecuted [and] it does not compel a state to allow a refugee to remain in its territory if and when that risk has ended”: Hathaway, at p. 302; R. (Yogathas) v. Secretary of State for the Home Department, [2002] UKHL 36, [2003] 1 A.C. 920, per Lord Scott of Foscote, at para. 106. The relevant time for assessment of risk is at the time of proposed removal: Hathaway, at p. 920; Wouters, at p. 99. This temporal understanding of refugee status under the Refugee Convention does not support the “binding effect” approach to earlier formal findings of refugee status.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-31", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 51", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "In addition, to the extent that this “binding effect” argument is based on the need for a particular procedural approach, that position is not supported by Canada’s obligations under the Refugee Convention. The Refugee Convention does not contain specific procedural provisions. While it does provide that refugees shall have free access to the courts (Article 16) and due process in relation to expulsion decisions (Article 32), it does not bind the contracting states to any particular process for either granting or withdrawing refugee status. Thus, Canada’s international undertaking with respect to non-refoulement does not commit it to any particular procedural scheme for its application in extradition matters.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-32", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 52", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Moreover, looking beyond the terms of the Refugee Convention, I have not found any international law norm to the effect that extradition may only be ordered if a previous finding that a person is a refugee has been formally set aside. So far as I have been able to determine, state practices on this point vary considerably. Kapferer notes that, in some countries, recognition of refugee status by the asylum (refugee) authorities is binding on those dealing with extradition requests. She also notes, however, that this is not the case in other states (paras. 273-77): see also M. Cherif Bassiouni, International Extradition: United States Law and Practice (5th ed. 2007), at p. 193; E. P. Aughterson, Extradition: Australian Law and Procedure (1995), at pp. 35-36. Similarly, the United Nations High Commissioner for Refugees in Guidance Note on Extradition and International Refugee Protection, at para. 53 acknowledges that in some countries, the extradition authorities are not bound by a previous formal conferral of refugee status by the immigration or asylum authorities. It seems that this is not problematic from an international law point of view, provided that the extradition authorities give due weight to the obligation of non-refoulement by fairly examining the question of whether the risk of persecution persists. I conclude that Canada’s obligations under the Refugee Convention do not require an earlier formal determination of refugee status to be binding on the extradition authorities. (I should add that in this case Canada is both the state that formally accorded refugee protection to the appellants and the requested state in the extradition process.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-33", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 52–55", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is not necessary, therefore, to address the situation in which extradition is requested from Canada of a person whose refugee status was formally accorded by another state.)\n\nFor these reasons, I reject the appellants’ silence argument. (3) The “Fair Process” Argument\n\nThe interveners, Québec Immigration Lawyers Association and Canadian Council for Refugees, in different ways, make the point that the powers of the Minister of Justice to surrender a person sought under the EA do not adequately give effect to Canada’s obligations under the Refugee Convention. They submit, in effect, that the protections under the IRPA are different and better than those found in the EA . However, these submissions are based on the wrong comparison. The protections in the IRPA in relation to non-refoulement do not apply to extradition; the question, therefore, is not whether the EA provides the same protection as the IRPA would if it did apply, but how the Minister’s surrender powers under the EA should be interpreted and applied having regard to its provisions read in light of Canada’s international undertakings and the Charter . I will take up that issue in the next section of my analysis. (4) Summary of Conclusions\n\nIn my view, the IRPA does not constrain the authority of the Minister to extradite a person with refugee status. I conclude that the Minister has that authority under the EA . That brings us to the question of whether the Minister exercised his authority reasonably in this case. C. Did the Minister Reasonably Exercise His Authority to Surrender the Appellants? (1) Introduction", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-34", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 56–57", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 44(1) (a) and (b) of the EA set out the grounds on which the Minister must refuse to surrender a person sought. In brief, they are first, if the Minister is satisfied that surrender would be unjust or oppressive in all of the relevant circumstances; second, if the Minister is satisfied that the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, etc.; and third, if the Minister is satisfied that person’s position may be prejudiced for any of those reasons.\n\nIn this case, the Minister focussed exclusively on the first ground. He required the appellants to establish, on the balance of probabilities, that they would face persecution on their return to Hungary and that the persecution they face would shock the conscience or be fundamentally unacceptable to Canadian society.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-35", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 58", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, the Minister applied incorrect legal principles and acted unreasonably in reaching his conclusions. His decision in this case related to the surrender for extradition of refugees to the country they fled. The Minister’s approach to the exercise of his powers, in my respectful view, failed to give sufficient weight or scope to Canada’s non-refoulement obligations in light of which those powers must be interpreted and applied. While the mandatory grounds for refusal set out in s. 44 must be considered as a whole, the most relevant provision in this case is the second branch of s. 44(1)(b) set out in the closing words of that subsection. This provision was included in the EA in part to give effect to Canada’s non-refoulement obligations under the Refugee Convention in the extradition context. While the Minister considered the appellants’ status as refugees and examined current conditions in Hungary, his approach in practical terms gave their refugee status no weight and took too narrow a view of Canada’s non-refoulement obligations. The Minister in my respectful view applied incorrect legal principles by imposing too high a threshold for determining whether the appellants would face persecution on their return and, by placing the burden of proof on this issue on the appellants notwithstanding the earlier finding that they were refugees. My reasons for these conclusions follow. (2) Grounds for Refusal of Extradition", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-36", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 59–60", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, this case turns on the interpretation and application of s. 44 of the EA . For the purposes of this appeal, there are three key interpretative issues about s. 44 which must be resolved: (1) What is the most pertinent ground under s. 44 where, as here, the Minister is deciding whether to surrender a person with refugee status? This turns on whether the protection afforded by s. 44(1)(b) is available only in relation to the risk of prejudice resulting from the prosecution or punishment of the person sought or whether it applies to prejudice resulting from discrimination generally; (2) Does a person with refugee status in Canada meet the threshold for invoking this protection? and (3) Who bears the onus of proof that the risk exists? To address these issues, I will first place s. 44 in the context of the extradition process and explain how it interacts with the refugee determination process. I will then turn to a detailed discussion of the purpose of s. 44 and conclude with my analysis of these three interpretative issues. (a) Section 44 in Context\n\nExtradition is mainly an executive branch function stemming from international agreements between states: United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 27. The EA ’s main purpose is to provide the means which give effect to Canada’s obligations in this regard. Under the EA, the Minister of Justice is responsible for the implementation of extradition agreements, dealing with extradition requests and generally for the administration of the EA : s. 7.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-37", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 61–62", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Charron J. recently outlined the scheme of the act in Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170. I will not repeat it in detail here other than to briefly outline the three phases of the extradition process under the EA .\n\nIn the first phase, the Minister considers an extradition request and decides whether to proceed with it. If he decides in favour of proceeding, he issues an authority to proceed. Where, as here, extradition to face trial is sought, the EA simply requires the Minister to be satisfied that the conduct described in the extradition request is criminal in the foreign jurisdiction and that the associated penalty meets the threshold established by s. 3(1)(a) (of at least two years or as specified in the relevant treaty). There is no reference to the immigration status of the person in relation to the Minister’s discretion to issue the authority to proceed.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-38", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 63–64", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The authority to proceed authorizes the Attorney General, acting on behalf of the extradition partner, to initiate extradition proceedings to seek the order of a superior court judge for the committal of the person sought. The process thus moves into its judicial phase. The function of an extradition hearing is to determine whether the domestic component of double criminality is met (i.e., if the conduct had occurred in Canada, it would have been an offence with the requisite punishment) as required by s. 3(1) (b) of the EA . The judge is required to order committal of a person sought for prosecution if there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner: s. 29(1)(a). Nothing in the EA specifies that the role of the extradition judge is affected by the fact that the person sought is a refugee.\n\nFollowing committal, the matter reverts to the Minister for the third phase of the process. It is at this point which he exercises his power under s. 40 of the EA to surrender, or to refuse surrender, the person sought to the extradition partner. This is the phase which is in issue in this case. At the surrender stage, the extradition process is essentially political in nature; the Minister must take into account the requirements of good faith and honour of Canada in responding to the request under an extradition treaty and must weigh the political and international relations ramifications of the decision whether or not to surrender.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-39", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 65–66", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "In general, the power to surrender is discretionary; as s. 40(1) provides, the Minister “may . . . order that the person be surrendered to the extradition partner”. However, this discretion to order or to refuse surrender is structured and, in some circumstances, constrained by the other provisions of the statute, the applicable treaty and the Charter . The statute sets out discretionary grounds on which the Minister may refuse surrender in s. 47. It also sets out mandatory and qualified mandatory grounds of refusal in ss. 44 and 46. Section 44, as noted, is most relevant to this appeal and I will return to it in a moment.\n\nThe refugee determination process is not expressly mentioned in the EA , other than in s. 40(2). It provides that, before ordering the surrender of “a person who has made a claim for refugee protection”, the Minister of Justice must consult with the Minister responsible for the IRPA : s. 40(2). Note that the provision refers to those who have claimed refugee protection; it does not refer to those who, like the appellants, have been granted refugee protection. It follows that, in the case of a person with refugee status, s. 40(2) does not require the Minister to consult with the MCI. However, it has been held that the provision does not preclude the Minister from doing so: see Hungary (Republic) v. Horvath, 2007 ONCA 734, 65 Imm. L.R. (3d) 169, at paras. 16-18, leave to appeal refused, [2008] 1 S.C.R. ix. Moreover, the Minister took the position in oral submissions before us that such consultation is required by virtue of s. 7 of the Charter when he considers the surrender of a refugee. I agree that such consultation must occur when the surrender decision concerns a person with refugee status.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-40", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 67–68", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Although there are no other express references to refugees in the EA , it does provide for protections of persons who fear abusive treatment, persecution or torture in the requesting state. The most relevant provision in this regard is s. 44 which sets out mandatory reasons for refusal of surrender. I turn now to a detailed examination of this key provision. (b) Section 44 — General Considerations\n\nUnder s. 44(1) of the EA , the Minister must refuse to make a surrender order if “satisfied” that (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or (b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons. Section 44(1) reads: 44. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or (b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-41", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 69–70", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "These mandatory reasons for refusal of surrender prevail over provisions of an extradition treaty. This is apparent for two reasons. The use of the mandatory language “shall refuse to make a surrender order” leaves the Minister no discretion to depart from statutory language to give effect to a treaty obligation. Moreover, where Parliament intended treaty obligations to prevail over the statutory grounds for refusal of surrender, this is specifically provided for as it is in s. 45(1) and (2): see Robert J. Currie, International & Transnational Criminal Law (2010), at pp. 467-68.\n\nAs the exercise of the Minister’s power to surrender implicates the liberty and in some cases the security of the person sought, the Minister owes a duty of fairness both at common law and in accordance with the principles of fundamental justice under s. 7 of the Charter . While we are not called on in this case to address the precise ambit of this duty of fairness, the Court has affirmed that it generally includes adequate disclosure of the case against the person sought, a reasonable opportunity to respond to it and a reasonable opportunity to state his or her own case: see, e.g., United States of America v. Whitley (1994), 119 D.L.R. (4th) 693 (Ont. C.A.), at p. 707, aff’d [1996] 1 S.C.R. 467.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-42", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 71", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The orientation of s. 44 is the protection of human rights. It is therefore not surprising that, as LeBel J. pointed out in Lake, at para. 24, there is overlap between the provisions of s. 44 and the Charter . While s. 44(1)(a) is not limited to conduct that would constitute a breach of the Charter , it is nonetheless the case that where surrender would be contrary to the principles of fundamental justice, it will also be unjust and oppressive within the meaning of s. 44(1)(a). Where extradition is sought for the purpose of prosecuting* an individual on the basis of a prohibited ground as contemplated by the first branch of s. 44(1)(b), ordering surrender will be contrary to the principles of fundamental justice. It is also not surprising that there is some overlap among the grounds of refusal in ss. 44(1)(a) and (b). The grounds set out in s. 44(1)(b) focus on the conduct of the requesting state. They may be viewed as specific examples of situations in which the surrender would be unjust and oppressive and therefore, in those situations, as structuring and narrowing the Minister’s consideration and weighing of competing objectives and concerns that go into the broad assessment of whether surrender would be unjust and oppressive.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-43", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 72", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court has discussed s. 44(1)(a) most recently in Fischbacher, at paras. 37-39. Under that paragraph, the Minister is required to undertake “a balancing of all the relevant circumstances, weighing factors that militate in favour of surrender against those that counsel against” (para. 38). It is generally accepted that the Minister must have a wide measure of appreciation of what circumstances are “unjust or oppressive” and that the person sought bears the burden of demonstrating that such circumstances exist: see, e.g., Fischbacher, at para. 37; Lake, at paras. 38-39; Pacificador v. Canada (Minister of Justice) (2002), 166 C.C.C. (3d) 321 (Ont. C.A.), at para. 55.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-44", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 73", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The conduct of the requesting state may be considered under s. 44(1)(a) as well as under s. 7 of the Charter . The concern of both provisions is not only the act of extradition, but the potential consequences of extradition for the person sought: United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 60. The analysis under s. 7 in this context asks whether extraditing the person sought to face those consequences offends the principles of fundamental justice: Burns, at para. 59. Section 44(1)(a) has thus been invoked where the person sought contested his surrender on the basis that he would be persecuted by virtue of his race or sexual orientation (United States of America v. Pannell, 2007 ONCA 786, 227 C.C.C. (3d) 336; United States of Mexico v. Hurley (1997), 35 O.R. (3d) 481 (C.A.)) or that the delay in seeking extradition and the potential punishment and other humanitarian circumstances combined to make surrender unjust and oppressive (United States v. Bonamie, 2001 ABCA 267, 96 Alta. L.R. (3d) 252). In this context, it has been held that where the person sought alleges that he or she will face persecution so that surrender would be contrary to the principles of fundamental justice and therefore unjust and oppressive, he or she bears the burden of proof on the balance of probabilities that such persecution will be suffered and that it would shock the conscience of Canadians: see, e.g., Hurley, at paras. 51-59. I mention this not to express my view on this approach but simply to contrast the broad balancing called for under s. 44(1)(a) with the much more tightly focussed, specific considerations set out in s. 44(1)(b).", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-45", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 74–77", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Under s. 44(1)(b), the Minister is concerned with the specific situations in which the requesting state seeks to prosecute or punish the person sought for a discriminatory purpose or where that person’s position may be prejudiced for a discriminatory reason. In contrast to the broad ground of “unjust or oppressive” in s. 44(1)(a), s. 44(1)(b) sets out specific grounds on which surrender must be refused.\n\nVirtually all of the case law approaches the risk of discriminatory treatment in the requesting state through the lens of s. 44(1)(a). This is likely because on first reading, s. 44(1)(b) seems to be concerned only with prosecution or punishment for a discriminatory purpose: see Pannell, at para. 29. For reasons I will develop in a moment, I think that is too narrow a reading of s. 44(1)(b).\n\nI turn now to a detailed analysis of s. 44(1)(b). I will first set out the purpose of the provision and then turn to the three interpretative issues to which the section gives rise: (1) whether the prejudice must be related to the prosecution or punishment of the person sought; (2) whether a person with refugee status in Canada meets the threshold for invoking this protection; and (3) who bears the onus of proof that the risk exists. (c) The Purpose of Section 44(1) (b) of the Extradition Act\n\nIt is critical to understand that s. 44(1)(b) is Canada’s primary legislative vehicle to give effect to Canada’s non-refoulement obligations when a refugee is sought for extradition. This appears not only from the text of the section, but also from its origins and the debates and hearings at the time of its adoption.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-46", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 78", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The non-refoulement provisions in Article 33 of the Refugee Convention have had considerable impact on extradition law. Extradition statutes and treaties commonly contain provisions inspired by the Refugee Convention’s protection against refoulement. The formulation adopted by the European Convention on Extradition, Eur. T.S. No. 24 (“Extradition Convention”), has been influential. Article 3(2) of that Convention stipulates mandatory reasons for refusal of extradition based on non-refoulement as set out in Article 33(1) of the Refugee Convention: Wouters, at p. 137; Goodwin-Gill and McAdam, at p. 258. It provides that extradition shall not be granted “if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons”.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-47", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 79", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The text of Article 3(2) of the Extradition Convention suggests that it has two branches: the first is concerned with prosecution or punishment for a discriminatory purpose as set out in the opening words and the second with more general discrimination that may prejudice the person’s position. The words used in the second branch would be an odd choice if the intention was to limit the meaning of “position” to “position in relation to the prosecution or punishment”. The provision is phrased disjunctively and the word “position” is not explicitly tied back to the prosecution or punishment. The French text of the provision supports even more strongly the view that the person’s “position” is not limited to his or her position in relation to the prosecution or punishment. The second branch in the French text is “ou que la situation de cet individu risque d’être aggravée pour l’une ou l’autre de ces raisons”. The clause is clearly disjunctive and “la situation de cet individu” is not clearly linked to the prosecution or punishment.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-48", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 80", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Article 3(2) of the Extradition Convention was substantially adopted by Article 3(b) of the United Nations’ Model Treaty on Extradition (1990): Bert Swart, “Refusal of Extradition and the United Nations Model Treaty on Extradition” (1992), 23 Neth. Y.B. Int’l Law 175, at p. 194. The United Nations Office on Drugs and Crime’s Revised Manuals on the Model Treaty on Extradition and on the Model Treaty on Mutual Assistance in Criminal Matters (2002), at para. 47, notes that this formulation, which is inspired by the principle of non-refoulement contained in the Refugee Convention, has been used, sometimes in a modified form, in extradition treaties around the world. As the Manual puts it, this clause “enables a party to refuse extradition if it determines that the extradition request is discriminatory in its purpose or if the subject of the request may be prejudiced because of one of the enumerated discriminatory grounds” (emphasis added).", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-49", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 81", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 44(1) (b) of the EA is inspired by the provisions in the Extradition Convention and the Model Treaty on Extradition. This is clear from the similarity of their texts. The wording of the closing section of all three provisions is virtually identical. The Extradition Convention, as noted, provides in Article 3(2) that extradition shall not be granted “if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons”. Article 3(b) of the Model Treaty on Extradition, which was based on the Extradition Convention, provides that extradition shall not be granted “[i]f the requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, political opinions, sex or status, or that that person’s position may be prejudiced for any of those reasons”. Section 44(1) (b) of the EA provides that the Minister “shall refuse to make a surrender order if the Minister is satisfied that . . . the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons”. The adoption of this language in s.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-50", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 81–82", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "44(1)(b) makes clear that it was directed to the same purpose as the comparable provision in the Extradition Convention and the Model Treaty on Extradition: fulfilling non-refoulement obligations in the extradition context. It is reasonable to infer that this provision was adopted to serve the purpose identified for its counter-part in the Extradition Convention and Model Treaty on Extradition, protection against prejudice in the requesting state, particularly when extradition would constitute a violation of the requested state’s obligations in relation to non-refoulement.\n\nBoth the English and French texts of s. 44(1)(b) support the view that it contains two branches and that the “position” of the party is not limited to his or her position in relation to prosecution or punishment. The English text, “or that the person’s position may be prejudiced” is, like the Extradition Convention, disjunctive and does not expressly link the person’s “position” to the prosecution or punishment. The French text, “ou il pourrait être porté atteinte à sa situation” suggests more strongly that “sa situation” is not limited to the prosecution or punishment. The use of the general expression “il pourrait” clearly does not refer to the prosecution or punishment and seems an unlikely choice of words had such a limitation been intended.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-51", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 83", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The co-relation between s. 44(1)(b) and non-refoulement is explicit in the debates and discussions leading to its enactment. There were references to the origin of the provision in the Model Treaty on Extradition (which was modelled on the Extradition Convention) and to the fact that the draft Bill adopted the listed grounds of discrimination from the Refugee Convention’s refugee definition: see, e.g., the Hon. Peter Adams, Parliamentary Secretary to the Leader of the Government, House of Commons Debates, vol. 135, No. 162, 1st Sess., 36th Parl., November 30, 1998, at pp. 10591-92; the Hon. Réal Ménard, House of Commons Debates, at p. 10595; Mr. Don Piragoff, General Counsel, Criminal Law Policy Section, Department of Justice, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights, November 5, 1998, at 17:10.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-52", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 84–85", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "I earlier referred to the testimony of Gerry Van Kessel. His evidence makes it particularly clear that the EA was intended to oblige the Minister to refuse extradition where the person sought fell within the refugee definition. As Mr. Van Kessel put it during his testimony: Bill C-40 [which became the 1999 Extradition Act ] changes will legislate the rules for the interaction between the extradition process and the refugee determination process for the first time. . . . Bill C-40 also says protection [i.e. of refugees] remains an issue and a concern that the Minister of Justice needs to deal with, and that is also dealt with in Bill C-40. The choice made there is that the Minister of Justice, before making a final decision on extradition or surrender order, shall refuse to make a surrender if the refugee definition applies . . . . [Emphasis added.] (Testimony before the Standing Committee on Justice and Human Rights, November 17, 1998, at 11:45 and 12:05)\n\nThis comment relates to what is now s. 44(1) (b) of the EA as it is the only provision among the grounds for refusal of surrender that lists the prohibited grounds of discrimination which will give rise to refugee protection. (I note that the draft Bill originally listed only grounds that very closely mirrored those set out in the refugee definition in the Refugee Convention, and that the list of prohibited grounds was expanded during Parliamentary consideration of the Bill to include the prohibited grounds of discrimination in the Charter and the Canadian Human Rights Act , R.S.C. 1985, c. H-6 : see House of Commons, Sixteenth Report, Standing Committee on Justice and Human Rights, November 23, 1998, at clause 44.)", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-53", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 86–88", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "This clear link between s. 44(1)(b) and Canada’s international obligations under the Refugee Convention has important implications for its interpretation and application in the refugee context. The Refugee Convention has an “overarching and clear human rights object and purpose”, and domestic law aimed at implementing the Refugee Convention, such as s. 44(1)(b), must be interpreted in light of that human rights object and purpose: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 57. Section 44(1)(b), when applied to the situation of a refugee whose extradition is sought, must be understood in the full context of refugee protection. (d) The Three Interpretative Questions\n\nI turn now to the three interpretative issues on which the appeal turns. (i) Prejudice and the Prosecution\n\nAs noted, s. 44(1)(b) provides that the Minister shall refuse surrender if satisfied that “the request for extradition is made for the purpose of prosecuting or punishing the person by reasons of their race [etc.] . . . or [if] the person’s position may be prejudiced for any of those reasons”. The question arises whether s. 44(1)(b) is concerned only with prejudice in the context of the prosecution. The first part of the paragraph appears to be so directed as it relates to prosecutions or punishments with a discriminatory purpose. However, the concluding words of the subsection — “or that the person’s position may be prejudiced for any of those reasons” — are not explicitly limited to prejudice to the person with respect to the prosecution. In my view, for three reasons, the prejudice referred to in these concluding words is not limited to prejudice in the prosecution or punishment.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-54", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 89–91", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, as I have discussed earlier, there is strong textual support in both the English and French texts of the Extradition Convention and the EA for the view that the second branch of s. 44(1)(b) is not limited to the position of the person with respect to the prosecution or punishment in the requesting state.\n\nSecond, as a review of the provision’s origins and the Parliamentary record shows, a clear legislative purpose of the provision includes giving effect to Canada’s obligations with respect to non-refoulement. Reading the section as being confined to prejudice in the prosecution or punishment of the refugee would not allow the section to achieve this purpose.\n\nThird, the provisions of the Extradition Convention on which s. 44(1)(b) is based have been interpreted as not being confined to prejudice in the context of prosecution or the imposition of punishment but have also been applied to prejudice resulting from extradition in violation of a refugee’s non-refoulement protection. In short, the direct link between these provisions and the non-refoulement protections in Article 33 of the Refugee Convention has been noted and given effect.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-55", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 92", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "A succinct discussion of the relationship between Article 3(2) of the Extradition Convention and Article 33(1) of the Refugee Convention may be found in the decision of the Netherlands, Council of State, Judicial Division, in Folkerts v. State-Secretary of Justice (1978), 74 I.L.R. 472. Most relevant for our purposes is the following passage which, quoting from the decision of the State-Secretary, makes two important points. First, the criteria are the same for non-refoulement protection under Article 33 of the Refugee Convention and for protection against discrimination under Article 3(2) of the Extradition Convention. Second, the protection against discrimination under Article 3(2) is not limited to discrimination in the criminal proceedings themselves, but more generally. The report puts it this way at p. 474: As appears from their wording and obvious intent, there is a close relation between [Article 3(2) of the European Convention on Extradition] and Article 33 of the Geneva Convention on the Status of Refugees, in the sense that the criteria for the decision on whether an individual is threatened on account of his race, religion, nationality or political opinion must be considered to be the same in the two provisions. The Refugees Convention does indeed apply to persons subject to forms of persecution other than criminal proceedings (prosecution), whereas a request for extradition can be made only in respect of a criminal investigation or the enforcement of a criminal judgment, though examination of a request for extradition in the light of Article 3(2) of the European Convention on Extradition does allow a judgment on the possibility of persecution other than in the sense of criminal proceedings. [Emphasis added.]", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-56", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 93–94", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Swiss Federal Court has taken the same view. In a decision noted by Gottfried Köfner in (1993), 5 Int’l J. Refugee L. 271, the court is reported as saying that art. 3 of the 1957 European Convention on Extradition stipulates not only non-extradition for political offences, but also for reasons concerning the personal situation of the individual to be extradited in the country of origin . . . . Art. 3(2) of the European Convention on Extradition is the concrete expression of the refugee law principle of non-refoulement in the context of extradition law. Both provisions protect persons who are in danger of persecution or punishment for race, religion, nationality or their political opinion. [p. 272]\n\nIt is true that there is English and Australian authority for the view that the protection afforded by the comparable provisions in those jurisdictions is limited to protection against prejudice in the trial or punishment of the person sought: see, e.g., Clive Nicholls, Clare Montgomery and Julian B. Knowles, The Law of Extradition and Mutual Assistance (2nd ed. 2007), at §5.44-5.53; Hilali v. Central Court of Criminal Proceedings No. 5 of the National Court, Madrid, [2006] EWHC 1239 (Admin.), [2006] 4 All E.R. 435 (Q.B., Div. Ct.); Aughterson, at pp. 111-15; Republic of Croatia v. Snedden, [2010] HCA 14, 265 A.L.R. 621. However, this approach reflects significant differences in drafting between those provisions, on one hand, and the Extradition Convention and s. 44(1)(b) on the other.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-57", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 95–97", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The English provisions focus more specifically on discrimination in the context of the trial and punishment than do the Extradition Convention or s. 44(1)(b). After addressing in s. 13(a) of the Extradition Act 2003 (U.K.), c. 41, extradition sought for a discriminatory purpose, s. 13(b) is directed to situations in which the person sought, if extradited, “might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, [etc.]”. The Australian provision, s. 7(c) of the Extradition Act 1988, No. 4, similarly makes an explicit link between discrimination and prejudice at trial or in relation to punishment: “. . . the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion [etc.]”.\n\nGiven the text and purpose of s. 44(1)(b) and the interpretation which has been given to the Extradition Convention on which it is based, I would read the closing words of s. 44(1)(b) broadly as protecting a refugee against refoulement which risks prejudice to him or her on the listed grounds in the requesting state whether or not the prejudice is strictly linked to prosecution or punishment. (ii) Refugee Status and Invoking the Protection\n\nThis appeal does not call for an exhaustive interpretation of s. 44(1)(b). The question here is the relationship between the conditions giving rise to refugee status and the risk described in s. 44(1)(b). In my view, a person who is a refugee and therefore entitled to non-refoulement protection under the Refugee Convention is entitled to invoke the protection under s. 44(1)(b). This approach is consistent with the text of the provision and achieves its legislative purpose.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-58", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 98", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Refugee Convention affords refugee protection (subject of course to exclusions) to persons having a “well-founded fear” of being persecuted on the enumerated grounds: Article 1A(2). In Canadian domestic law under s. 95 of the IRPA , a refugee claimant must show that he or she falls within the statutory definition of refugee, which, in the case of Convention refugees, closely tracks the language of the Refugee Convention: s. 96 of the IRPA . Jurisprudence from the Federal Court of Appeal holds that the burden is on the claimant to show that he or she subjectively fears persecution and that this fear is objectively well-founded. The latter condition requires proof that there is a “reasonable chance”, a “reasonable” possibility, or a “serious possibility”: see, e.g., Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), at p. 683; Lorne Waldman, Immigration Law and Practice (2nd ed. (loose-leaf)), vol. 1, at §8.91-8.98. My objective is not to reach any firm conclusions about precisely how the test should be framed; the point is simply that under the Refugee Convention and under s. 96 of the IRPA , the refugee claimant has to establish a risk of persecution and does not have to prove on the balance of probabilities that the feared persecution will in fact occur.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-59", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 99", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The next question is how this approach to refugee protection fits with the Refugee Convention’s protection against refoulement. On an initial reading of the text, the Refugee Convention’s non-refoulement provision, Article 33, does not seem to be exactly aligned with the Convention’s definition of refugee. While the Article 1 definition of refugee speaks of a “well-founded fear of being persecuted” on the prohibited grounds, Article 33 protects against expulsion of a refugee to a place “where his life or freedom would be threatened” on those grounds. The use of the words “would be” in Article 33 may suggest that a probability of persecution has to be shown, while the use of the word “threatened” suggests that, like the definition of refugee, this protection against refoulement is concerned with risk. The different words used in Articles 1 and 33 give rise to the question of whether all persons who meet the definition of refugee in Article 1 (and are not otherwise excluded from refugee protection) are entitled to protection against refoulement under Article 33, or whether some different or higher standard is required to be entitled to that protection. There is a strong case to be made that the thresholds are in fact the same under both provisions. But in any event, the language of s. 44(1)(b) — “may be prejudiced” — demonstrates a clear legislative intent to refer to a risk of prejudice rather than to a more certain standard.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-60", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 100–101", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Commentators are generally in agreement that the thresholds under Articles 1 and 33 of the Refugee Convention are the same — in other words, that all refugees under the Refugee Convention benefit from Article 33 non-refoulement protection notwithstanding the difference in wording between Article 1 and Article 33: see, e.g., Goodwin-Gill and McAdam, at p. 234; Wouters, at pp. 56-57; Hathaway, at pp. 304-5; Jari Pirjola, “Shadows in Paradise — Exploring Non-Refoulement as an Open Concept” (2007), 19 Int’l J. Refugee L. 639, at p. 645. The commentators’ position is supported by judicial decisions in the United Kingdom, Australia and New Zealand: see, e.g., R. v. Secretary of State for the Home Department ex p. Sivakumaran, [1988] 1 A.C. 958, at p. 1001; M38/2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2003] FCAFC 131, 199 A.L.R. 290, at para. 38; Zaoui v. Attorney-General (No. 2), [2005] 1 N.Z.L.R. 690 (C.A.), at para. 36.\n\nThere are however, opinions to the contrary in the United States. For example, in Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 (1987), in the course of interpreting the U.S. domestic law tests for withholding of deportation and granting asylum as a refugee, a majority of the Supreme Court opined that Article 33.1 of the Refugee Convention does not extend non-refoulement protection to everyone who meets the definition of refugee: p. 440. This view, however, was not accepted by three members of the court. Given the fundamental human rights character of the Refugee Convention and the centrality to refugee law of the principle of non-refoulement, I, with respect, find the views of the commentators and the judicial opinions from other jurisdictions to which I have referred more persuasive on this point.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-61", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 102", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The closing words of s. 44(1)(b) — “may be prejudiced” — seem concerned with risk of prejudice rather than with the need to demonstrate that it is more likely than not to occur. It is only sensible, in my view, to think that a person who meets the definition of refugee under s. 96 of the IRPA also meets the test for risk of prejudice set out in s. 44(1)(b). Moreover, this interpretation best gives effect to an important purpose of s. 44(1)(b), that is, to implement Canada’s non-refoulement obligations in the extradition setting. As Mr. Van Kessel put it during his testimony to the Parliamentary Committee considering the draft Bill, the purpose of this provision is to require the Minister to refuse surrender “if the refugee definition applies”. It also seems to me that a person’s position is prejudiced when he or she is extradited contrary to Canada’s non-refoulement obligations under international law. I conclude that a person entitled to refugee protection in Canada and therefore protection against refoulement is entitled to protection under s. 44(1)(b). (iii) Burden of Proof", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-62", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 103–104", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "There is one significant difference between the task facing the Minister on a surrender decision under the EA and the task facing the Refugee Protection Division (or the Refugee Appeal Division) under the IRPA at the time refugee status was granted. That is the factor of timing. As noted earlier, an individual’s status as a refugee under the Refugee Convention has a temporal aspect; the status depends on the situation that exists at the time protection is sought. In the same way, the relevant time for assessing entitlement to non-refoulement protection is the time removal is sought. The same principle applies to s. 44(1)(b). The question of entitlement to protection against refoulement arises at the time surrender is being considered and must be assessed in light of the circumstances at that time. I therefore agree with the Minister when he decided that he should have regard to current conditions in considering whether to surrender the appellants, not to the conditions in Hungary some six years earlier when the appellants had sought and been granted refugee status.\n\nIt is often contended, as it was during argument of this appeal, that the principle of non-refoulement has acquired the status of jus cogens. I do not find it necessary to decide this point, which is controversial among international law scholars: see, e.g., the review of the literature in Aoife Duffy, “Expulsion to Face Torture? Non-refoulement in International Law” (2008), 20 Int’l J. Refugee L. 373. Canada has bound itself to the principle of non-refoulement by express provision in the Refugee Convention. There is no inconsistency between Canadian domestic law and Canada’s international undertaking in this regard on the interpretation I would adopt of s. 44.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-63", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 105", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The question then arises as to who bears the burden when a person with refugee status invokes s. 44(1)(b) to avoid surrender. The approach taken by the Minister in this case — to place the burden of proving on the balance of probabilities that persecution would in fact occur — in my view is not compatible with Canada’s international undertakings with respect to non-refoulement or with the requirements of fundamental fairness to the refugee. As noted, non-refoulement is a cornerstone of refugee protection under the Refugee Convention and one from which states may not make reservations: see Article 42. Moreover, the EA underlines the central importance of this obligation in s. 44(1)(b) by making risk of persecution a mandatory ground of refusal of surrender which prevails over extradition treaty obligations. Canada has established elaborate quasi-judicial proceedings to make refugee determinations. In light of all this, my view is that where a person has been found, according to the processes established by Canadian law, to be a refugee and therefore to have at least a prima facie entitlement to protection against refoulement, that determination must be given appropriate weight by the Minister in exercising his duty to refuse extradition on the basis of risk of persecution.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-64", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 106–107", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, there should be no burden on a person who has refugee status to persuade the Minister that the conditions which led to the conferral of refugee protection have not changed. This approach is not only consistent with Canada’s domestic law in relation to cessation of refugee protection on the basis of changed circumstances, but with Canada’s international undertakings with respect to non-refoulement of refugees. It also seems to me to be a more practical and fair approach than placing a burden on refugees to prove current conditions in the country from which they have been absent perhaps, as in this case, for an extended period.\n\nChange of circumstances in a refugee’s country of origin may lead to cessation of refugee protection. This is contemplated by Article 1C(1) to (6) of the Refugee Convention. In short, protection ceases to apply to persons who, by virtue of a change in circumstances, no longer need it. Thus, under Article 1C(5) and (6), refugee protection ceases to apply when the circumstances which led to refugee status being recognized have ceased to exist. When these changes in circumstance occur between the time refugee status is claimed and adjudication of the claim, they may justify refusal of refugee status. If the changed circumstances occur after refugee status has been conferred, they may be invoked to justify revocation of that status on the basis that the person is no longer entitled to refugee protection.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-65", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 108–109", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Apart from changed circumstances, the Refugee Convention also has exclusion clauses (Article 1F) which may be invoked after refugee status has been granted to demonstrate that the person was not, in fact, entitled to refugee protection. As noted earlier, the exclusions relate for example to war crimes, serious non-political crimes and acts contrary to the purposes and principles of the United Nations. As these exclusions relate to the entitlement of a person to refugee status, they will also be relevant to determining entitlement to non-refoulement protection. For the purposes of non-refoulement protection under the Refugee Convention, it is co-extensive with the entitlement to refugee protection.\n\nIt is widely accepted that the state bears the burden of proof that refugee status previously recognized should be terminated on the basis that the circumstances justifying refugee status no longer exist: Hathaway, at p. 920, fn. 20; Goodwin-Gill and McAdam, at p. 143; Joan Fitzpatrick and Rafael Bonoan, “La cessation de la protection de réfugié” in Feller, Türk and Nicholson, 551, at pp. 596 and 603; United Nations High Commissioner for Refugees, “Relevé des conclusions: La cessation du statut de réfugié”, May 3-4, 2001, para. 27 reproduced in Feller, Türk and Nicholson, 611. Thus, under the Refugee Convention, persons who have established that they meet the refugee definition should not bear the burden of proving that they continue to do so.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-66", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 110", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "This view is also consistent with Canadian domestic law. The cessation provisions of the Refugee Convention are reflected in the IRPA . Under the IRPA, the MCI may apply to the Refugee Protection Division for a determination that refugee protection has ceased by virtue of any of the circumstances set out in s. 108(1): s. 108(2). Section 108(1) lists a number of circumstances which virtually mirror those set out in Article 1C(1) to (6) of the Refugee Convention and includes, in s. 108(1)(e) that “the reasons for which the person sought refugee protection have ceased to exist”. A second basis of termination is provided for under s. 109. The Refugee Protection Division, on application of the Minister, may vacate a decision to allow a claim for refugee protection if it finds that the decision was obtained as a result of misrepresentation or withholding material facts. Consistent with my earlier comments on the burden of proof, the IRPA makes it clear that it is up to the MCI to apply for the order that refugee protection has ceased and to advance the reasons in support of the application: s. 108(2) of the IRPA and Refugee Protection Division Rules, SOR/2002-228, rule 57(2)(f).", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-67", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 111–113", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Thus, the obligations under the Refugee Convention and the analogy to the cessation and revocation provisions under the IRPA suggest that, under s. 44(1) (b) of the EA , a refugee should not have to establish at the surrender phase that the conditions which lead to conferring refugee status, and thus to non-refoulement protection, continue to exist. This approach also seems to me to be both practical and fair. It gives some weight, but not binding force, to the earlier conclusion that refugee protection was justified. It also prevents placing a burden on a person sought that he or she is not well placed to discharge. Consider the present case. It does not to me seem either fair or practical to require the appellants to establish current conditions in Hungary, a country from which they have been absent for six years. Both the Minister, through consultation with the MCI, and the requesting state are much better placed to come forward with evidence of changed conditions than is the refugee whose extradition is sought.\n\nIn my view, when the Minister acting under the EA is in effect determining that refugee protection (and thus non-refoulement protection under the Refugee Convention) of a person sought is excluded or is no longer required by virtue of a change of circumstances in the requesting country, he must be satisfied on the balance of probabilities that the person sought is no longer entitled to refugee status in Canada.\n\nNothing I have said affects the burden on a person who has not been granted refugee status who relies on mandatory grounds of refusal of surrender under s. 44. (e) Summary of Conclusions", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-68", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 114", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "I will summarize my conclusions about how s. 44(1)(b) should be applied when the person sought has refugee status in Canada and the requesting state is the country from which refugee protection was accorded. 1. Section 44(1)(b) must be considered whenever the Minister’s surrender decision concerns a person with refugee status in Canada and the requesting state is the one from which the refugee has been granted protection. 2. Refusal of surrender is mandatory if the Minister is satisfied that the conditions which lead to conferral of refugee status still exist and it is not shown that the person sought was or has become ineligible for refugee status. In short, a person’s position may be prejudiced within the meaning of s. 44(1)(b) if surrendered in violation of Canada’s non-refoulement obligations under the Refugee Convention. 3. The relevant time for considering the person’s ongoing entitlement to refugee protection and therefore protection against refoulement and any change of conditions in the requesting state for the purposes of s. 44(1)(b) is the time at which surrender is sought. 4. The refugee status of the person sought establishes, absent proof on the balance of probabilities to the contrary, that his or her position will be prejudiced on a prohibited ground under s. 44(1)(b) if surrendered. The refugee does not have the burden of showing that the circumstances giving rise to conferral of refugee status continue to exist in the requesting state or that he or she otherwise remains entitled to refugee protection. 5. The Minister must consult with the MCI concerning current conditions in the requesting state in considering whether the person sought is no longer entitled to refugee protection on the basis of changed circumstances. 6.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-69", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 114–116", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "A duty of fairness applies to the Minister’s consideration of the issue under s. 44(1)(b) which includes providing the refugee with the case to meet, providing a reasonable opportunity to challenge that case as well as a reasonable opportunity to present his or her own case. (3) The Minister’s Decision\n\nI return to the Minister’s decisions with respect to the appellants. As is apparent from the preceding discussion, my view is that the Minister’s consideration of the appellants’ case was fundamentally flawed. He failed to address s. 44(1)(b) which is the most relevant provision of the EA in relation to their surrender, he imposed a burden on them to show continuing risk of persecution and he applied a wrong and more onerous test than that prescribed by s. 44(1)(b). In short, the decision was based on incorrect legal principles and was unreasonable. I should add that the appellants did not place before the Minister the role that s. 44(1)(b) ought to play in his determination and the provision was referred to only in passing in the submissions in this Court.\n\nThe respondent briefly submits that the appellants are disentitled to non-refoulement protection by virtue of the serious crime exception. However, in my view, this question was never more than a peripheral issue in this case and the Minister did not base his decision on it.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-70", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 117–118", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "I should first set out the legal parameters of the serious crime exception to non-refoulement protection. Articles 1E and 1F of the Refugee Convention set out exclusions from refugee protection in relation to those who either do not need or are seen as not deserving it: Martin Jones and Sasha Baglay, Refugee Law (2007), at p. 146. Section 98 of the IRPA simply incorporates these exclusions by reference. Article 1E excludes persons who are recognized by the country in which they have taken residence as having rights and obligations attaching to nationality in that country. Article 1F excludes persons with respect to whom there are serious reasons for considering that they have (a) committed a crime against peace, a war crime, or a crime against humanity; (b) a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee or (c) has been guilty of acts contrary to the purposes and principles of the United Nations.\n\nIn this case, the Minister referred to the exclusion in (b), which I will refer to as the “serious crime” exception, in reaching his decision to extradite the appellants. In his January 30, 2008 letter addressing Mr. Németh’s submissions as to why he ought not to be surrendered, the Minister noted the exception to non-refoulement dealing with serious non-political offences and that in the immigration context, such offences had been defined to be offences punishable by imprisonment of 10 years or more. He continued: “While it is not clear that refugee law is applicable in the extradition context, I note that the offence of fraud is punishable under Canadian law by a maximum term of imprisonment of more than ten years” (A.R., vol. 1, at p. 12).", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-71", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 119–120", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "These comments make it clear, in my view, that the Minister did not decide whether the serious crime exception applied to the appellants. His decision leaves three critical issues unresolved: how the serious crime exception relates to extradition proceedings, what constitutes a “serious non-political crime” for these purposes and whether the appellants were accused of committing such a crime.\n\nFirst, the Minister noted how serious crime was defined in the “immigration context”. I take this to be a reference to s. 105 of the IRPA . As I mentioned earlier, that provision states that if a person is ordered surrendered for an offence punishable by 10 years or more, the order of surrender is deemed to be a rejection of a claim for refugee protection by virtue of the serious crimes exception in Article 1F(b) of the Refugee Convention. Thus, it seems that Parliament, in the IRPA , has decided two issues about how the Refugee Convention should be implemented in Canada. The first is that a crime punishable by at least 10 years imprisonment constitutes a “serious non-political crime” within the meaning of Article 1F(b). (I note that this approach is also consistent with the inadmissibility rules for serious criminality provided for in s. 36 of the IRPA .) The second is that the test for committal on extradition is sufficient to meet the “serious reasons for considering” test set out in Article 1F. In his decision, however, the Minister simply noted that “it is not clear” that approach to the definition of serious crime under the IRPA applies in the extradition context; I do not take this as a decision that it does.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-72", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 121", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "Moreover, while the Minister stated that the offence of fraud is punishable by imprisonment of 10 or more years, he did not decide that the appellants were charged with an offence punishable by such a sentence. Under Canadian law, the possible punishments for fraud depend on the value of the subject matter of the offence. Where it exceeds $5,000, the maximum penalty is 14 years imprisonment; where it does not exceed $5,000, the maximum term of imprisonment is 2 years: Criminal Code , ss. 380(1) (a) and (b). Thus, even assuming the IRPA ’s approach to the definition of a serious non-political crime applies under the Refugee Convention, whether the crime alleged against the appellants in Hungary is such a crime depends on the value of the subject matter of the offence.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-73", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "para 122", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Minister noted in his January 30 letter that the appellants were alleged to have sold the right of lease for premises in Budapest for approximately C$2,700 when they in fact had no right to do so (A.R., vol. 1, at p. 10). Neither the case summary nor the supplementary case summary provided to the Minister suggested that the alleged offence involved deprivation of over $5,000 and there is no response in the record or in the Minister’s January 30 letter challenging the appellants’ submissions to the Minister that the subject matter of the fraud was less than $5,000. It is true, as pointed out in a footnote in the respondent’s factum and as referred to briefly in oral argument that there is evidence in the record that the money paid to the appellants was a deposit in relation to a transaction for a total of just under $10,000. However, there is no evidence in the record that the actual deprivation exceeded the roughly $2,700 (or in some places in the record $2,500) that was allegedly given to the appellants.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7899-74", - "doc_type": "caselaw", - "act_code": "2010 SCC 56", - "act_short": "Németh", - "act_name": "Németh v. Canada (Justice)", - "section": "", - "citation": "Németh v. Canada (Justice), 2010 SCC 56", - "marginal_note": "paras 123–124", - "heading": "Extradition and the refugee principle of non-refoulement; the Minister's duty when surrendering a protected person", - "part": "Supreme Court of Canada", - "division": "", - "text": "There may be a nice legal question about the value of the subject matter in this case. However, my view is that the Minister did not base his decision on the serious crime exception. As I noted, the Minister did not resolve either of the questions that he would have had to resolve in order to base his decision on this point. Nor do I think that, in the circumstances of this case, we should give effect to the Minister’s submission that this exclusion applies. As the Court noted in Lake, at para. 25, “the Minister must respond to any submissions against surrender made by the individual and explain why he disagrees”. Here, he did not do so with respect to this issue. The appellants had submitted to him, in effect, that they did not fall within the serious crime exception because the value of the subject matter did not exceed $5,000. The Minister’s decision does not indicate that he disagreed with that submission or explain why he thought it was incorrect. While it will be open to the Minister to consider on the reconsideration of this matter whether the appellants are excluded from refugee protection, and therefore also from non-refoulement protection, by virtue of the serious crime exception, it is now too late to resolve this appeal adversely to the appellants on that basis. V. Conclusion\n\nI would allow the appeal, set aside the judgment of the Court of Appeal and the Minister’s surrender decisions and remit the matter to the Minister for reconsideration according to law. The appellants did not request costs and I would order none. Appeal allowed.", - "current_to": "2010-11-25", - "last_amended": "", - "history": "[2010] 3 SCR 281", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7899/index.do" - }, - { - "id": "scc-7944-1", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 1–2", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "Binnie J. — Since 1978, Canada has allowed Canadian citizens or permanent residents to sponsor their relatives to immigrate to Canada. Family reunification was an important objective of the former Immigration Act, R.S.C. 1985, c. I-2, and remains so under the successor legislation enacted in 2001 as the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”). Of the over 2 million permanent residents admitted to this country between 1997 and 2007, 615,000 (or 27%) are members of the family class. If such persons after arriving in Canada obtain social assistance (contrary to their sponsor’s undertaking of support), the sponsor is deemed to have defaulted and either the provincial or federal government may recover from the sponsor the cost of providing social assistance.\n\nThe present proceedings were initiated by eight sponsors who denied liability under their undertakings. As will be explained, the undertakings are valid contracts but they are also structured, controlled and supplemented by federal legislation. The debts created thereby are not only contractual but statutory, and as such their enforcement is not exclusively governed by the private law of contract. The issue raised by this appeal is the extent to which, if at all, the government is constrained by considerations of procedural fairness in making enforcement decisions in relation to these statutory debts.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-2", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 3–4", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Attorney General of Canada argues (and the applications judge agreed) that the Crown is not required even to notify an allegedly defaulting sponsor of its claim prior to filing with the Federal Court a ministerial certificate of the alleged debt which becomes, automatically, enforceable as if it were a judgment of that court. He argues that the legislation imposes on the Crown a duty (not a discretion) to collect sponsorship debts in full. He denies that in carrying out this duty there is any obligation of procedural fairness.\n\nOn a proper interpretation of the governing legislation, however, I believe the Crown does have a limited discretion in these collections. The discretion enables the governments to delay enforcement action having regard to the sponsor’s circumstances and to enter into agreements respecting terms of payment, but not simply to forgive the statutory debt. On the evidence, Ontario has had in place a discretionary policy respecting the collection of family sponsorship debts for many years, both before and after the enactment of the IRPA in 2001.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-3", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 5–6", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the exercise of this discretion, which Parliament has made clear is narrow in scope, the Crown is bound by a duty of procedural fairness. The content of this duty is fairly minimal. The Crown is obliged prior to filing a certificate of debt with the Federal Court (i) to notify a sponsor at his or her last known address of its claim; (ii) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection; (iii) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place; and (iv) to notify the sponsor of the government’s decision. This is a purely administrative process. It is a matter of debt collection. There is no obligation on the government decision maker to give reasons. The existence of the debt is, in the context of this particular program, reason enough to proceed.\n\nAlthough the respondents took the position in the courts below that they should be altogether “discharged from their sponsorship obligations” (2009 ONCA 794, 98 O.R. (3d) 1, at para. 6), they took the less extravagant position in this Court that they do not dispute that undertakings are enforceable. Nor do they dispute that undertakings should be enforced in the overwhelming majority of cases. They are merely asking that the [governments] properly exercise the discretion that was granted to them and consider their circumstances before making the decision to enforce. [R.F., at para. 5]", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-4", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 7–9", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Ontario Court of Appeal held that the Ontario government’s deferral policy improperly fettered its statutory discretion in a manner “inconsistent with the overall legislative scheme” (para. 132). While I agree (as stated) with the court below that the sponsors are entitled to a basic level of procedural fairness, my view is that the Ontario guidelines are quite adequate in that regard and are consistent with the statutory scheme. Moreover, the contention of the respondent sponsors that they are entitled to a more elaborate “process” of decision making must be rejected. We are, after all, dealing with statutory debt collection. I would allow the appeal in part but as these appeals can properly be characterized as test cases, I would do so without costs. I. Facts\n\nForeign nationals may apply to become permanent residents and eventually citizens, under three broad categories: the family class, the economic class and the refugee class (IRPA , s. 12 ). A permanent resident or citizen wishing to sponsor a family member initiates the process by making a sponsorship application. Sponsors must be over 18 years of age, and meet detailed financial and other requirements. Family class members are not assessed independently on their ability to support themselves. Since they obtain their permanent residence status on the sole basis of being in a familial relationship with a sponsor, they are not required to meet the financial or other selection requirements which are imposed on other classes of immigrants. A. The Sponsors\n\nThe respondents to this appeal are eight sponsors whose relatives received social assistance and who are therefore deemed to have defaulted on their undertaking.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-5", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 10–12", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent Dzihic sponsored his fiancée in 2002. His allegation is that when she arrived in Canada she refused to live with him or marry him. Mr. Dzihic notified the immigration department and an order was made for her deportation. However, his fiancée appealed the order successfully without any notice to or input from Mr. Dzihic. He says he was unaware of her success or the fact that she subsequently received social assistance totalling $10,510.65 as of July 2007, for which he is now responsible.\n\nThe respondent El-Murr sponsored her father, mother and two brothers in 1995 while she was unemployed. Her husband was employed at the time and he co-signed the undertaking. After the family members arrived in Canada, Ms. El-Murr left her husband because of alleged abuse and she went on social assistance as did her parents and one brother. The debt amount as of February 2006 is $94,242.16 and she says she cannot afford to repay this amount.\n\nThe respondent Grankin sponsored his mother in 1999. He claims that he subsequently lost his job and had to apply for social assistance. He was thus unable to support his mother after her arrival in Canada. His mother applied for social assistance and received it. Mr. Grankin states that had he known he was responsible for repaying the benefits, he would not have permitted his mother to apply for assistance. As of June 2007 his total debt was $54,426.39.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-6", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 13–15", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent Hince married Ms. Patel who was on a visitor’s visa in 2002. She returned to India and Mr. Hince sponsored her and her daughter to return to Canada. They did so in 2006 and lived briefly with Mr. Hince, then left. He says he was unaware that she subsequently received social assistance. His job is low paying and does not permit him, he says, to repay the social assistance amount due as of June 2007 of $10,547.65. He believes he was exploited by Ms. Patel to enable her to gain immigration status.\n\nThe respondent de Altamirano and her husband sponsored her mother in 2000. After arriving in Canada, her mother suffered a stroke. Ms. de Altamirano applied for benefits to pay for her mother’s institutional care. She alleges that she was encouraged to do so by a case worker and did not realize that she would have a responsibility to repay the benefits — as of May 2007 said to be $54,559.99.\n\nThe respondent Mavi sponsored his father in 1996. He alleges he did not read the application or understand it. His father arrived in Canada in 1997 and lived with Mr. Mavi. There was a falling out and the father left. Mr. Mavi learned in 2005 that his father had collected benefits and he contacted the government to advise that his own health was not good, which limited his ability to work. The amount of benefits said to be owed as of June 2005 is $17,818.08.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-7", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 16–18", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent Vossoughi applied to sponsor her mother at a time when she was married. In 2002, she left her husband because, she says, of abuse. In 2003, her mother arrived in Canada. Ms. Vossoughi says she could not support her mother and her mother went on social assistance. She alleges she did not realize she was responsible for repaying the benefits. The amount said to be owed pursuant to the undertaking as of July 2007 is $28,754.71.\n\nThe respondent Zebaradami sponsored his fiancée in 2000. She arrived in Canada in 2001 but only stayed with him for a few weeks, then left him for another man. She received social assistance benefits of $22,158.02 as of July 2007. Mr. Zebaradami says he was duped and that his former fiancée only used him to gain status in Canada.\n\nThe Government of Ontario, which in each case paid the social assistance to the needy relative, took steps to enforce the debt against each of the sponsors. In applications filed in the Ontario Superior Court of Justice, the eight sponsors sought various declarations the result of which, if granted, would be to avoid payment, either temporarily or permanently. B. The Undertakings", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-8", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 19–20", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The undertakings signed by Mr. Grankin, Mr. Zebaradami and Ms. de Altamirano contained the following statement with respect to the possibility that enforcement might be deferred (with similar statements made in the undertakings signed by Ms. Vossoughi, Mr. Dzihic and Mr. Hince): The Minister may choose not to take action to recover money from a Sponsor or a Sponsor’s spouse (if Co-signer) who has defaulted in a situation of abuse or in other appropriate circumstances. The decision of the Minister not to act at a particular time does not cancel the debt, which may be recovered by the Minister when circumstances have changed. [Emphasis added.] C. Federal and Provincial Policies\n\nThe Canada-Ontario Memorandum of Understanding on Information Sharing — 2004 (“MOU”), provides for the sharing of information in order to facilitate, inter alia, the enforcement of sponsorship debts. Section 6 of the MOU states that sponsorship debts are “payable on demand”, but that default may be cured in cases where a province accepts partial payment of the debt. Ontario will apply its own guidelines to determine whether collection action should be undertaken immediately or deferred, e.g. in cases of family violence.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-9", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 21–23", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Ontario policy itself states that certain cases of default would not be referred for collection, namely where the person is incapacitated and unable to pay, where there is evidence of domestic violence, where the sponsor himself or herself is in receipt of social assistance, or where other “documented extraordinary circumstances” exist. The Attorney General of Ontario contends (unlike his federal counterpart) that the federal legislation does permit a measure of discretion, and that Ontario’s policies are fully compliant. He claims however that relations between Ontario and the sponsors are governed only by rules applicable to private contracts.\n\nThe respondent sponsors contend (and the Court of Appeal agreed) that the wording of the undertakings should be taken into account in the interpretation of the governing legislation. II. Statutory Framework\n\nPursuant to s. 132 of the Immigration and Refugee Protection Regulations, SOR/2002-227, a sponsor is obliged to reimburse the Crown in right of Canada or a province, for the cost of every benefit provided as social assistance to the sponsored family member during the term of undertaking — formerly 10 years but now 3 years for a spouse or a dependent child 22 years of age or older and 10 years for a dependent child less than 22 years of age and all other family members (s. 132(1)). The undertakings set out the obligations of the sponsor, the duration of the undertaking and the consequences of default, and stated that the undertaking would be binding notwithstanding any change in the sponsor’s personal circumstances.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-10", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 24–25", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 108(2) of the former Immigration Act authorized the federal government to enter into agreements with the provinces for the purposes of implementing immigration programs. Section 114(1)(c) authorized the executive to create regulations with respect to sponsorships and s. 115 allowed the Minister to create forms necessary to implement the program (such Ministerial authority was the basis for the undertakings at issue here, which were drafted by the Department of Citizenship and Immigration and signed by each sponsor). Pursuant to s. 118(1) of the former Act, the federal government could assign an undertaking to a province in order to allow that province to recover social assistance payments from the sponsor directly. The new IRPA eliminated the need for such an assignment of the debt.\n\nThe collection procedure under the old Immigration Act was also more cumbersome than under the new IRPA . The former s. 118(2) required governments to obtain a judgment from a court of competent jurisdiction in order to enforce the sponsorship debt. Public monies spent as a result of a breach of an undertaking were deemed to be a “debt due to Her Majesty in right of Canada or in right of the province to which the undertaking is assigned” and “may be recovered from the person or organization that gave the undertaking”. Section 5(2)(g) of the old Regulations stated that default on an existing undertaking was a bar to additional sponsorships (Immigration Regulations, 1978, SOR/78-172, as amended by SOR/97-145, s. 3).", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-11", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 26–28", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "In 2002, the IRPA made important changes to the rules governing the family immigration class. Section 14(2)(e) confers broad powers to make regulations with respect to sponsorship undertakings. Section 145(2) is central to the issue of the Minister’s discretion on this appeal. It states in relevant part: . . . an amount that a sponsor is required to pay under the terms of an undertaking is payable on demand to Her Majesty in right of Canada and Her Majesty in right of the province concerned and may be recovered by Her Majesty in either or both of those rights. The respondent sponsors contend that “may” is permissive and indicates, they say, the existence of a Crown discretion to collect or not to collect the debt.\n\nThe IRPA streamlined the enforcement of sponsorship debt. It is no longer necessary for the federal undertakings to be assigned to the provinces before they can be enforced by the province. Furthermore, s. 145(3) negates the effect of limitations statutes by prescribing that the debt may be recovered “at any time”.\n\nGovernments no longer even have to obtain a judgment to engage Federal Court processes to enforce the debt. Section 146 allows the Minister to certify the debt immediately or within 30 days of default, depending on the circumstances, and register that certificate with the Federal Court, giving it the same force as a judgment.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-12", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 29–30", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The new Regulations provide in s. 135 that default begins when the government makes a payment and ends when the sponsor either reimburses the government “in full or in accordance with an agreement with that government”, or when the sponsor ceases to be in breach of the undertaking. The Attorney General of Canada takes comfort from the IRPA ’s elimination of any judicial process prior to the Minister’s authority to invoke Federal Court enforcement. The respondent sponsors, on the other hand, argue that elimination of prior judicial authorization makes it all the more important that the Minister act fairly and get the facts straight before initiating what they regard as an overly harsh statutory collection procedure. III. Judicial History A. Ontario Superior Court of Justice (Wilson J.), No. 07-CV-331628PD3, September 11, 2008, unreported\n\nThe applications judge found that the IRPA and its Regulations, when viewed as a whole, showed a Parliamentary intent to create a collection procedure that was “purely administrative in nature” (para. 52). The government is not vested with a discretion to consider on a case-by-case basis whether or not to enforce the debt. The government’s duty is to collect. The legislation does not impose any duty of fairness towards sponsors in default. Neither the statute nor the regulations permit sponsors to make submissions before their debts are collected (para. 54).", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-13", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 31–33", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "According to the applications judge, the sponsorship agreements are governed by contract law (para. 55). The sponsors entered into the agreements voluntarily (para. 57). The contractual undertakings should be construed in light of the purpose of the statute which is debt collection (para. 58). The doctrine of frustration does not apply (para. 59). The Applicants were aware that they would be liable if a sponsored relative became financially dependent on the state (para. 59). The applications for various declarations sought by the sponsors were therefore dismissed. B. Ontario Court of Appeal (Laskin, Simmons and Lang JJ.A.), 2009 ONCA 794, 98 O.R. (3d) 1\n\nOn appeal, the issues were restricted to administrative law grounds, specifically: (1) whether the Acts confer upon the governments a case-by-case discretion concerning the recovery of sponsorship debt; (2) whether Canada and Ontario abused this discretion; (3) whether Canada and Ontario owe sponsors a duty of procedural fairness; and (4) whether the undertakings given under the old Act are enforceable under the new Act. The Court of Appeal allowed the appeal.\n\nOn the first issue, the Court of Appeal found that both Acts confer a case-by-case discretion in the collection of sponsorship debt (para. 89). In construing s. 118(2) of the old Act and s. 145(2) of the new Act, the word “may” indicates some degree of discretion on the part of the Minister.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-14", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 34–36", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "According to the Court of Appeal, the applications judge erred “in part, because she failed to take proper account of the Regulations and forms” which are “essential components of an integrated [immigration] scheme” (paras. 91 and 95). The Court of Appeal noted that since 1999 the undertakings have included a provision that allowed a sponsor to negotiate a settlement with the government concerned (para. 98). In addition, the undertakings under both Acts stated that the governments “may” choose not to collect the debt (para. 103). Since Parliament did not eliminate this discretion in the 2002 amendments, it is reasonable to infer that it intended there to be some flexibility in terms of debt collection.\n\nOn the second issue, the Court of Appeal went further. In light of the wording of the undertaking, Ontario had improperly “fettered or abused the exercise of its discretion” in part because its policy required that a “‘defaulting sponsor . . . repay the full amount of the debt’” (paras. 125-26). This prohibited a settlement for less than the full amount, an option which is expressly contemplated by s. 135(b)(i) of the new Regulations. Since the policy required full repayment in every case, regardless of the circumstances, this amounted to an improper fettering of the Minister’s discretion under the statute (para. 127).\n\nFurthermore, Ontario’s policy of only granting deferrals based on “documented extraordinary circumstances” was a more onerous standard than the existence merely of “appropriate circumstances” contemplated by the undertakings (paras. 132-33), and was to that extent invalid.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-15", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 37", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "On the third issue, the Court of Appeal held that the governments owed a duty of procedural fairness to the sponsors (para. 135). It was held that the government was obliged to provide “a process” for individual sponsors to explain their relevant personal and financial circumstances, to consider those circumstances, and to inform the sponsor that their submissions had been considered and to tell them of the decision (para. 147). The provision in the undertakings that the government will consider “other appropriate circumstances” in exercising its discretion created a legitimate expectation that the government will consider their individual circumstances (para. 148). Finally, the court held that undertakings given under the old Immigration Act are enforceable under the IRPA . IV. Analysis", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-16", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 38", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The doctrine of procedural fairness has been a fundamental component of Canadian administrative law since Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, where Chief Justice Laskin for the majority adopted the proposition that “in the administrative or executive field there is a general duty of fairness” (p. 324). Six years later this principle was affirmed by a unanimous Court, per Le Dain J.: “. . . there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual”: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653. The question in every case is “what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context” (Cardinal, at p. 654). See also Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 669; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 20; and Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, at para. 18. More recently, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Bastarache and LeBel JJ. adopted the proposition that “[t]he observance of fair procedures is central to the notion of the ‘just’ exercise of power” (para. 90) (citing D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 7-3).", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-17", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 39–40", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "Accordingly, while the content of procedural fairness varies with circumstances and the legislative and administrative context, it is certainly not to be presumed that Parliament intended that administrative officials be free to deal unfairly with people subject to their decisions. On the contrary, the general rule is that a duty of fairness applies. See G. Régimbald, Canadian Administrative Law (2008), at pp. 226-27, but the general rule will yield to clear statutory language or necessary implication to the contrary: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, at para. 22. There is no such exclusionary language in the IRPA and its predecessor legislation.\n\nIn determining the content of procedural fairness a balance must be struck. Administering a “fair” process inevitably slows matters down and costs the taxpayer money. On the other hand, the public also suffers a cost if government is perceived to act unfairly, or administrative action is based on “erroneous, incomplete or ill-considered findings of fact, conclusions of law, or exercises of discretion” (Brown and Evans, at p. 7-3; see also D. J. Mullan, Administrative Law (2001), at p. 178).", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-18", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 41", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "Once the duty of procedural fairness has been found to exist, the particular legislative and administrative context is crucial to determining its content. We are dealing here with ordinary debt, not a government benefits or licensing program. It is clear from the legislative history of the IRPA that over the years Parliament has become increasingly concerned about the shift to the public treasury of a significant portion of the cost of supporting sponsored relatives. Family reunification is based on the essential condition that in exchange for admission to this country the needs of the immigrant will be looked after by the sponsor, not by the public purse. Sponsors undertake these obligations in writing. They understand or ought to understand from the outset that default may have serious financial consequences for them.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-19", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 42", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "A number of factors help to determine the content of procedural fairness in a particular legislative and administrative context. Some of these were discussed in Cardinal, a case involving an inmate’s challenge to prison discipline which stressed the need to respect the requirements of effective and sound public administration while giving effect to the overarching requirement of fairness. The duty of fairness is not a “one-size-fits-all” doctrine. Some of the elements to be considered were set out in a non-exhaustive list in Baker to include (i) “the nature of the decision being made and the process followed in making it” (para. 23); (ii) “the nature of the statutory scheme and the ‘terms of the statute pursuant to which the body operates’” (para. 24); (iii) “the importance of the decision to the individual or individuals affected” (para. 25); (iv) “the legitimate expectations of the person challenging the decision” (para. 26); and (v) “the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances” (para. 27). Other cases helpfully provide additional elements for courts to consider but the obvious point is that the requirements of the duty in particular cases are driven by their particular circumstances. The simple overarching requirement is fairness, and this “central” notion of the “just exercise of power” should not be diluted or obscured by jurisprudential lists developed to be helpful but not exhaustive.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-20", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 43–44", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "Here the nature of the administrative decision is a straightforward debt collection. Parliament has made clear in the statutory scheme its intention to avoid a complicated administrative review process. Nevertheless, as the Court of Appeal correctly observed, the nature of the decision in this case is final and specific in nature. It may result in the filing of a ministerial certificate in the Federal Court which is enforceable as if it were a judgment of that court. The IRPA does not provide a mechanism for sponsors to appeal the enforcement decision. Here, as in Knight, the absence of other remedies militates in favour of a duty of fairness at the time of the enforcement decision (see also Baker, at para. 24). The effect of the decision on the sponsors is significant. Sponsorship debts can be very large and accumulate quickly, as is evident from the amounts the respondents are said to owe the government in this case.\n\nThe legislation leaves the governments with a measure of discretion in carrying out their enforcement duties, and in this case Ontario’s procedure is perfectly compatible with both efficient debt collection and fairness to the defaulting sponsors. I will deal separately below with the issue of legitimate expectations.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-21", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 45–46", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "In these circumstances I believe the content of the duty of procedural fairness does not require an elaborate adjudicative process but it does (as stated earlier) oblige a government, prior to filing a certificate of debt with the Federal Court, (i) to notify a sponsor at his or her last known address of its claim; (ii) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection; (iii) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place; and (iv) to notify the sponsor of the government’s decision. Given the legislative and regulatory framework, the non-judicial nature of the process and the absence of any statutory right of appeal, the government’s duty of fairness in this situation does not extend to providing reasons in each case (Baker, at para. 43). This is a situation, after all, merely of holding sponsors accountable for their undertakings so that the public purse would not suffer by reason of permitting the entry of family members who would otherwise not qualify for admission.\n\nOntario has adopted a collection policy along these lines. There is no evidence before us that the minimal procedural protections afforded by Ontario have in any way undermined or frustrated the debt collection objective or resulted in unfairness to family sponsors. A. The Contract Argument", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-22", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 47–48", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Attorneys General resist the application of a duty of procedural fairness in part on a theory that the claims against the sponsors are essentially contractual in nature. Dunsmuir, they say, stands for the proposition that procedural fairness does not apply to situations governed by contract. However, in this case, unlike Dunsmuir, the governments’ cause of action is essentially statutory.\n\nDunsmuir dealt with an employment relationship that was found by the Court to be governed by contract. The fact the contracting employee was a senior public servant did not turn a private claim for breach of contract into a public law adjudication. Here, on the other hand, the terms of sponsorship are dictated and controlled by statute. The undertaking is required by statute and reflects terms fixed by the Minister under his or her statutory power. The Attorneys General characterize sponsors as mere contract debtors but even contract debtors are ordinarily entitled to receive notice of a claim and the opportunity to defend against it.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-23", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 49", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The existence of the undertaking does not extricate the present disputes from their public law context. There is ample precedent for contracts closely controlled by statute to be enforced as a matter of public law. In Rhine v. The Queen, [1980] 2 S.C.R. 442, for example, the Court dealt with two appeals for breach of contract: the first was a claim to recover an advance payment under the Prairie Grain Advance Payments Act, and the second was a government claim to recover principle and interest owing on a student loan made pursuant to the Canada Student Loans Act. The defendants took the position that enforcement of a private law contract is a matter of provincial law and thus outside the jurisdiction of the Federal Court. In both appeals, the jurisdictional challenge was rejected. The contracts were creatures of statute. Laskin C.J. noted: What we have here is a detailed statutory framework under which advances for prospective grain deliveries are authorized as part of an overall scheme for the marketing of grain produced in Canada. An examination of the Prairie Grain Advance Payments Act itself lends emphasis to its place in the overall scheme. True, there is an undertaking or a contractual consequence of the application of the Act but that does not mean that the Act is left behind once the undertaking or contract is made. At every turn, the Act has its impact on the undertaking so as to make it proper to say that there is here existing and valid federal law [i.e. the statute] to govern the transaction which became the subject of litigation in the Federal Court. [p. 447] See also Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage), 2006 FCA 190, [2007] 2 F.C.R. 475, at para. 72; Canada v. Crosson (1999), 169 F.T.R. 218, at para. 36.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-24", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 50–52", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "Similarly, while the sponsors’ undertakings here have some contractual aspects, it is the statutory framework that closely governs the rights and obligations of the parties and opens the door to the requirements of procedural fairness. As stated earlier, s. 145(2) of the IRPA makes any debt owing pursuant to an undertaking payable to and recoverable by either federal or provincial Crown. Furthermore, s. 132(1) of the Regulations makes sponsors liable for any social assistance paid to the sponsored relative. Section 135 of the Regulations defines “default”. Finally, the enforcement of the undertaking in Federal Court is governed by s. 146 of the IRPA . Just as in Rhine, the undertaking at every turn is a creature of statute.\n\nThe situation here does not come close to the rather narrow Dunsmuir employment contract exception from the obligation of procedural fairness. As the Dunsmuir majority itself emphasized: This conclusion does not detract from the general duty of fairness owed by administrative decision makers. Rather it acknowledges that in the specific context of dismissal from public employment, disputes should be viewed through the lens of contract law rather than public law. [Emphasis added; para. 82.] Dunsmuir was not intended to and did not otherwise diminish the requirements of procedural fairness in the exercise of administrative authority. B. The Statutory Exclusion Argument\n\nThere is no doubt that the duty of fairness, being a doctrine of the common law, can be overridden by statute. The Attorneys General argue that the legislation does so in the present case. I do not agree. Such a conclusion is not consistent with the legislative text, context or purpose. (1) The Statutory Text", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-25", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 53", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "Central to the collection procedure is s. 145(2) of the new Act and, to a lesser extent, its predecessor s. 118(2) of the old Act, which provide (with emphasis added) as follows: 145. . . . (2) [Debts due — sponsors] Subject to any federal-provincial agreement, an amount that a sponsor is required to pay under the terms of an undertaking is payable on demand to Her Majesty in right of Canada and Her Majesty in right of the province concerned and may be recovered by Her Majesty in either or both of those rights. 118. . . . (2) [Recovery for breach of undertaking] Any payments of a prescribed nature made directly or indirectly to an immigrant that result from a breach of an undertaking referred to in subsection (1) may be recovered from the person or organization that gave the undertaking in any court of competent jurisdiction as a debt due to Her Majesty in right of Canada or in right of the province to which the undertaking is assigned. The statements that the “sponsor is required to pay” and that the amount owing is “payable on demand” leave no doubt about the existence of a statutory debt. The words “may be recovered” occur in both Acts.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-26", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 54–56", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The applications judge thought the word “may” simply enables either level of government to enforce the undertaking. The point, however, is that nothing in the relevant sections explicitly requires Her Majesty to pursue collection of debts irrespective of the circumstances. Legislative use of the word “may” usually connotes a measure of discretion (Interpretation Act , R.S.C. 1985, c. I-21, s. 11 ). This is as one would expect. It seems too clear for argument that Parliament intended the federal and provincial Crowns to deal with debt collection in a rational, reasonable and cost-effective way. The Attorney General of Canada concedes that Ministers have a “management discretion” in the conduct of departmental affairs. See, e.g., Optical Recording Corp. v. Canada, [1991] 1 F.C. 309 (C.A.), at p. 323. Effective management requires some measure of flexibility. Flexibility necessarily entails discretion.\n\nHowever circumscribed, the existence of a discretion attracts a level of procedural fairness appropriate to its exercise. (2) The Statutory Context\n\nAs the Attorneys General point out, several provisions of the IRPA affirm the obligatory nature of the undertaking and strengthen enforcement measures as compared to the old Immigration Act. Nevertheless, the evidence that Parliament intended in the new Act to facilitate the collection of sponsorship debts does not mean it intended this to be done unfairly.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-27", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 57", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Regulations are also an important part of the statutory context. In Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, Deschamps J. noted that regulations “can assist in ascertaining the legislature’s intention”, particularly where the statute and the regulations form an integrated scheme (para. 35). See also Greater Toronto Airports Authority v. International Lease Finance Corp. (2004), 69 O.R. (3d) 1 (C.A.), at paras. 102-4; Ward-Price v. Mariners Haven Inc. (2001), 57 O.R. (3d) 410 (C.A.), at para. 29. Professor Sullivan notes at p. 370 of her treatise that “[w]hen regulations are made to complete the statutory scheme, they are clearly intended to operate together [with the enabling statute] and to be mutually informing” (Sullivan on the Construction of Statutes (5th ed. 2008) (emphasis added)). Section 2(2) of the IRPA states that references to “this Act” include the Regulations.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-28", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 58–59", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "Regulations under the IRPA are made under a broad authority with respect to a number of matters including family class immigration and sponsorship undertakings. Section 135 of the Regulations, which informed the Court of Appeal’s finding of a Ministerial discretion states: 135. [Default] For the purpose of subparagraph 133(1)(g)(i), the default of a sponsorship undertaking . . . (b) ends, as the case may be, when (i) the sponsor reimburses the government concerned, in full or in accordance with an agreement with that government, for amounts paid by it, or (ii) the sponsor ceases to be in breach of the obligation set out in the undertaking. The Attorney General of Canada argues that this provision does not mean that the government can make “an agreement” to forgive the debt, which he says can only be done under the terms of the Financial Administration Act , R.S.C. 1985, c. F-11, s. 23 (“FAA”). Rather, he says, this provision merely defines default for the purpose of a person’s eligibility to sponsor additional family members.\n\nThe fact is however that the Regulations do distinguish between payment “in full” and payments “in accordance with an agreement with that government”. This can only mean that the government is authorized to limit enforcement to whatever amount is agreed upon with the sponsor, and no floor or ceiling (short of forgiveness) is fixed by the Regulations. The amount and terms of repayment are therefore within the discretion of the government decision maker. An agreement requiring a sponsor to pay $20 a month on a $20,000 debt may never result in the full amount being paid, but it would nevertheless be an “agreement” within s. 135(b)(i) which governments are authorized to make.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-29", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 60–61", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Attorney General of Canada contends that agreements for less than the full amount would be tantamount to a write-off in violation of the procedures set out in the FAA. However, in my view, what is contemplated in s. 135(b)(i) of the Regulations is not a write-off but “agreed” levels of deferred enforcement. The FAA is a statute of very general application. It does not preclude Parliament from enacting more specialized legislative schemes for the management and enforcement of debts owed to the Crown under particular statutory programs. The IRPA is an example of such a specialized collection regime.\n\nUnlike the Court of Appeal, I interpret the IRPA and its regulations without reference to the terms of the sponsorship undertakings themselves, which are drafted by the Minister and his officials and can be (and are) modified from time to time. At best the undertakings reflect an administrative interpretation of the legislative framework. It would be different in the case of forms that are actually appended to statutes, and which therefore carry the authority of Parliament, which is not the case here. See Houde v. Quebec Catholic School Commission, [1978] 1 S.C.R. 937, at p. 947; Sullivan, at pp. 408-9. (3) The Statutory Purpose", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-30", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 62", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 3 of the IRPA states that the Act is intended to encourage family reunification but also recognizes that successful integration of immigrants involves “mutual obligations for new immigrants and Canadian society”, as follows: 3. (1) [Objectives — immigration] The objectives of this Act with respect to immigration are . . . (d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; . . . (j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society. . . . (3) [Application] This Act is to be construed and applied in a manner that . . . (f) complies with international human rights instruments to which Canada is signatory. Debt collection without any discretion in relation either to sponsors or their relatives would not advance the purposes of the IRPA . It would hardly promote “successful integration” to require individuals to remain in abusive relationships. Nor would the attempted enforcement of a debt against individuals without means to pay further the interest of “Canadian society”. Forcing a sponsor into bankruptcy may or may not deliver a short-term return, but hardly enhances the bankrupt’s chances of becoming a positive contributor to Canadian society. Excessively harsh treatment of defaulting sponsors may risk discouraging others from bringing their relatives to Canada, which would undermine the policy of promoting family reunification.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-31", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 62–64", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "Clearly Parliament’s intent is to require the full debt to be paid if and when the sponsor is in a position to do so, even incrementally over many years pursuant to an “agreement” under s. 135(b)(i) of the Regulations. There is no reason why a sponsor who eventually wins a lottery should be relieved of the full measure of the debt at the expense of the taxpayer regardless of when the win occurs.\n\nNevertheless, in dealing with defaulting sponsors, the government must act fairly having regard to their financial means to pay and the existence of circumstances that would militate against enforcement of immediate payment (such as abuse). Ontario’s policy seeks to balance the interests of promoting immigration and family reunification on the one hand, and preventing abuse of the sponsorship scheme on the other. Discretion in the enforcement of sponsorship debt allows the government to further this objective.\n\nFor these reasons, I would reject the Attorneys General’s argument that the existence of an administrative discretion that attracts procedural fairness is excluded by the text, context and purpose of the legislation. C. Did Ontario Improperly Fetter the Exercise of Its Statutory Discretion?", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-32", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 65–66", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court of Appeal noted that “[d]iscretion is fettered or abused when a policy is adopted that does not allow the decision-maker to consider the relevant facts of the case, but instead compels an inflexible and arbitrary application of policy” (para. 124). The court concluded that the Ontario collection policy conflicts with the intended scope of the discretion. With respect, I do not agree that there is a conflict. As discussed earlier, the legislation allows the Minister to defer but not forgive sponsorship debt. This is also Ontario’s policy. The policy provides that “[t]he defaulting sponsor is required to repay the full amount of debt. There is no forgiveness of the debt by the Ministry”.\n\nThe federal Minister of Citizenship and Immigration can change the content of the undertakings, as indeed he has over the years, just as the provincial Minister of Community and Social Services changes the enforcement policy from time to time. Policies are necessary to guide the action of the multitude of civil servants who operate government programs. The Minister is entitled to set policy within legal limits. It cannot be said that the Ontario policy here so “fetters” the discretion as to be invalid.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-33", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 67–68", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Court of Appeal also concluded that Ontario’s policies were less favourable to the sponsors than the terms of some of the sponsorship undertakings. However, as discussed above, the terms of the undertakings are merely expressions of administrative interpretation. They are not, in my view, tools to construe the statutory framework itself. The importance of the signed undertakings in the administrative law context is that they lay the foundation for the application of the doctrine of legitimate expectations, as discussed below. However, with great respect for the Court of Appeal, I do not agree that the federal legislative framework mandates a broader discretion in favour of defaulting sponsors than Ontario permits. It was quite open to Ontario to adopt the collection policy that it did, in my opinion. D. The Doctrine of Legitimate Expectations\n\nWhere a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty. Proof of reliance is not a requisite. See Mount Sinai Hospital Center, at paras. 29-30; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 78; and C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 131. It will be a breach of the duty of fairness for the decision maker to fail in a substantial way to live up to its undertaking: Brown and Evans, at pp. 7-25 and 7-26.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-34", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 69–70", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "Indeed it would be somewhat ironic if the government were able to insist on the sponsor living up to his or her undertaking to the letter while at the same time walking away from its own undertakings given in the same document. Generally speaking, government representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.\n\nHere the undertakings reaffirm that the government can defer, but not forgive, sponsorship debt. The respondents Grankin, Zebaradami, and de Altamirano, signed undertakings under the old Immigration Act in which the federal government represented that it possessed and would exercise a measure of discretion in the matter of enforcement: CONSEQUENCES OF DEFAULT . . . The Minister may choose not to take action to recover money from a Sponsor or a Sponsor’s spouse (if Co-signer) who has defaulted in a situation of abuse or in other appropriate circumstances. The decision of the Minister not to act at a particular time does not cancel the debt, which may be recovered by the Minister when circumstances have changed. [Emphasis added.] While default can be cured by making arrangements for repayment, it is clear that no representation is made that the debt will be cancelled, even when the Minister exercises his or her discretion to defer enforcement with or without a s. 135(b)(i) agreement. The Vossoughi and Dzihic undertakings are substantially the same.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-35", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 71", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The essential elements of the undertakings remained unchanged under the new Act. The Hince undertaking of November 20, 2002, signed under the IRPA , reads in relevant part as follows: I understand that all social assistance paid to the sponsored person or his or her family members becomes a debt owed by me to Her Majesty in right of Canada and Her Majesty in right of the province concerned. As a result, the Minister and the province concerned have a right to take enforcement action against me (as sponsor or co-signer) alone, or against both of us. The Minister and the province concerned may choose not to take enforcement action to recover money from me if the default is the result of abuse or in other circumstances. The decision not to act at a particular time does not cancel the debt. The Minister and the province concerned may recover the debt when circumstances have changed. [Emphasis added.]", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-36", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 72", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the terms of the IRPA undertakings support the position of the Attorneys General that the debt is not forgiven, they also support the sponsors’ contention of a government representation to them that there exists a discretion not to take enforcement action “in a situation of abuse or in other appropriate circumstances” (pre-2002) or “if the default is the result of abuse or in other circumstances” (post-2002). Such representations do not conflict with any statutory duty and are sufficiently clear to preclude the government from denying to the sponsor signatories the existence of a discretion to defer enforcement. Given the legitimate expectations created by the wording of these undertakings I do not think it open to the bureaucracy to proceed without notice and without permitting sponsors to make a case for deferral or other modification of enforcement procedures. E. Ontario’s Policy Provides an Appropriate Measure of Procedural Fairness", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-37", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 73–74", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Ontario procedure takes the form of a series of letters notifying sponsors that a sponsored relative has applied for social assistance and that he or she is now in default. The letters in most cases made clear Ontario’s openness to consideration of mitigating factors or financial circumstances or other reasons why the debt should not immediately be enforced. This is the correct practice because under the Ontario policy the local social assistance agents are supposed to consider these factors before deciding to refer the matter for collection. Ontario Works and the Ontario Disability Support Program set out a process for dealing with family abuse between a sponsor and sponsored person. The Family Violence and Sponsorship Debt Recovery information sheet describes how the officers should deal with alleged abuse and/or family violence cases. Ontario requires that if such information comes to the officer’s attention collection efforts are to stop immediately.\n\nIf the sponsor does not agree to repay the debt and resume supporting his or her sponsored relative, the matter is ordinarily referred to the Overpayment Recovery Unit (“ORU”) for collection. The ORU will then send additional notice letters and if the sponsor responds, the ORU will solicit the sponsor’s financial information to determine his or her ability to support his or her relative and repay the debt. If the sponsor does not cooperate, the matter is referred to Canada Revenue Agency’s Refund Set-Off Program, which withholds any tax refunds or credits for the benefit of the province.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-38", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 75", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this process there is a limited but real opportunity for the sponsor to make representations to the government regarding the particular circumstances surrounding a default. There is no hearing and no appeal procedure but there is a legitimate expectation that the government will consider relevant circumstances in making its enforcement decision and a duty of procedural fairness to do so. However, the wording of the government’s representations in the undertaking are sufficiently vague to leave the government’s choice of procedure very broad. Clearly no promises are made of a positive outcome from the sponsors’ point of view. The Ontario guidelines fully comply with the statutory requirements, in my opinion, but this is not to say that each province and territory must proceed in an identical fashion. The essential requirements are that procedural fairness be observed and that the terms of the undertakings be respected by governments as well as by the sponsors who are alleged to be in default.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-39", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 76", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "The sponsors contend that the government is under a duty to inform them as soon as a sponsored relative obtains public assistance. It is unfair, they say, for the government to allow debt to accumulate unbeknownst to them. This is of particular concern when the relationship between sponsor and relative has broken down and the sponsor is unaware that the relative is seeking or receiving social assistance. Counsel point out that demand for payment from a number of the sponsors was not made before their indebtedness became relatively large and after the passage of a considerable period of time (for example, Mr. Grankin, four and a half years after his mother was first granted social assistance; Ms. de Altamirano, three years from the application for social assistance for her mother; Ms. Vossoughi, close to two years after the sponsor applied for social assistance for her sponsored mother). I agree that good debt management practice would suggest that demand be made as soon as the government payments to or on behalf of the sponsored relative commence. Nonetheless, it is inherent in the sponsor’s support obligation that the sponsor is to keep track of the sponsored relative he or she has undertaken to support. Family class immigrants are admitted solely on the basis of their relationship to the sponsor. In return, the sponsor, not the government, is “responsible for preventing the family member and any accompanying dependents from becoming dependent on public social assistance programs”. Accordingly, the risk of a rogue relative properly lies on the sponsor, not the taxpayer.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-40", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "paras 77–78", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the material before us it is clear that each of the eight sponsors was notified of the default and was in communication with the Ministry, in some cases through legal counsel. The facts considered relevant by the sponsors were put forward by some of the respondents. Others simply ignored the government’s reasonable requests. Mr. Hince, for example, declined to disclose his financial situation on the financial assessment forms and did not respond to the government’s letters. Ms. Vossoughi did not reply to the two notification letters sent to her after she had been advised that her mother had applied for social assistance.\n\nThe Ministry, after consideration of whatever information was provided, generally advised each of the respondent sponsors that the sponsorship undertakings remained in effect but that the government was open to the negotiation of a repayment plan. At least one of the respondent sponsors did negotiate a repayment plan and, it seems, has been making monthly payments. However, the respondents then initiated these proceedings. In my respectful view the policies adopted by Ontario would, if respected in its collection efforts, satisfy the legitimate procedural expectations of the sponsors, and meet the basic requirements of procedural fairness. The respondent sponsors’ claims to the contrary should be rejected. V. Disposition", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-41", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 79", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "These actions arose out of claims for declaratory relief. In light of the foregoing reasons, the appeal is allowed in part and the following declarations will issue: (i) Canada and Ontario have a discretion under the IRPA and its Regulations to defer but not forgive debt after taking into account a sponsor’s submissions concerning the sponsor’s circumstances and those of his or her sponsored relatives. (ii) Ontario did not improperly fetter its exercise of statutory discretion in adopting its policy. Its terms are consistent with the requirements of the statutory regime and met the legitimate procedural expectations of the respondent sponsors created by the text of their respective undertakings. (iii) Canada and Ontario owe sponsors a duty of procedural fairness when enforcing sponsorship debt. (iv) The content of this duty of procedural fairness include the following obligations: (a) to notify a sponsor at his or her last known address of the claim; (b) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection; (c) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place; (d) to notify the sponsor of the government’s decision; (e) without the need to provide reasons. (v) That the above requirements of procedural fairness were met in the cases of the eight respondent sponsors.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-7944-42", - "doc_type": "caselaw", - "act_code": "2011 SCC 30", - "act_short": "Mavi", - "act_name": "Canada (Attorney General) v. Mavi", - "section": "", - "citation": "Canada (Attorney General) v. Mavi, 2011 SCC 30", - "marginal_note": "para 80", - "heading": "Sponsorship-undertaking debt; the procedural fairness owed before the Crown enforces a sponsorship debt", - "part": "Supreme Court of Canada", - "division": "", - "text": "As these proceedings can properly be characterized as test cases to resolve certain legal issues of public importance all parties will bear their own costs on the appeal and on the application for leave to appeal. Appeal allowed in part.", - "current_to": "2011-06-10", - "last_amended": "", - "history": "[2011] 2 SCR 504", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7944/index.do" - }, - { - "id": "scc-12904-1", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "paras 1–3", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The central issue in this appeal is whether a sentence otherwise falling within the range of fit sentences can be varied by an appellate court on the basis that the offender would face collateral consequences under the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), s. 64, that were not taken into account by the sentencing judge.\n\nSince the Crown conceded that, had it been aware of the collateral consequences at the time of the sentencing hearing, it would have agreed to a sentence of two years less a day, this Court decided at the conclusion of oral argument to allow the appeal and reduce the sentence from two years to two years less a day. The following are the reasons for that decision. II. Background\n\nHoang Anh Pham was convicted on charges of producing marihuana and possessing it for the purpose of trafficking contrary to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . In light of a joint submission by the Crown and counsel for the appellant, the Provincial Court of Alberta imposed a sentence of two years’ imprisonment.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-2", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "paras 4–6", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mr. Pham appealed the sentence, seeking to have it reduced by one day. He argued that the sentencing judge was not aware of and, for this reason, did not consider the collateral consequences of a sentence of two years’ imprisonment on his immigration status. Under the IRPA, a non-citizen sentenced in Canada to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her. Considering that a sentence of two years less a day, like the imposed sentence of two years, remained within the range of appropriate sentences, the Crown conceded that the sentence should be reduced by one day. It must be noted that neither the appellant’s counsel nor the Crown had raised these issues before the sentencing judge, who apparently was not aware of the collateral consequences.\n\nDespite the Crown’s concession, the majority of the Court of Appeal of Alberta refused to vary the appellant’s sentence by one day, holding that, in the circumstances, allowing the appeal from a sentence situated within the range of otherwise fit sentences would inappropriately undermine the provisions of the IRPA (2012 ABCA 203, 533 A.R. 192, at paras. 24-25). The dissenting judge would have allowed the variation, noting that, had the appellant’s counsel been aware of the collateral consequences of a two-year sentence in this case, a joint submission for a sentence of two years less a day would have been agreed upon (para. 33). III. Analysis\n\nProportionality is a fundamental principle of sentencing. Section 718.1 of the Criminal Code , R.S.C. 1985, c. C‑46 , provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-3", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "paras 7–8", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "LeBel J. explained proportionality as follows in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37: Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. . . . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.\n\nIn addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform the sentencing process. This Court has repeatedly emphasized the value of individualization in sentencing: Ipeelee, at para. 39; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 21; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92. Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances (s. 718.2 (a) of the Criminal Code ), as well as objective and subjective factors related to the offender’s personal circumstances.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-4", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "paras 9–10", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2 (b) of the Criminal Code ). In other words, “if the personal circumstances of the offender are different, different sentences will be justified” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §2.41).\n\nUltimately, the sentence that is imposed must be consistent with the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The sentence must have one or more of the objectives of denunciation, general and specific deterrence, separation of offenders from society if need be, rehabilitation, reparations to victims for harm done to them, promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community (s. 718 of the Criminal Code ).", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-5", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "para 11", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2 (a) of the Criminal Code ). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718 (d) of the Criminal Code ). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-6", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "paras 12–13", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows: As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. . . . . . . The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence. [Emphasis added.] (The Law of Sentencing (2001), at pp. 136-37)\n\nTherefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-7", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "paras 14–16", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.\n\nThe flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.\n\nThese consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-8", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "para 17", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In R. v. Badhwar, 2011 ONCA 266, 9 M.V.R. (6th) 163, the offender was convicted of criminal negligence causing death while street racing and failure to stop at the scene of an accident. He was sentenced to 30 months (less 5 months for pre-trial custody) on the first count and 12 months consecutive on the second. On appeal, he did not seek a reduction of his global sentence of 37 months; rather, he asked the court to adjust his sentence to 23 months and 19 months consecutive in order to avoid the collateral consequences of a sentence of 24 months or more, namely the loss of his immigration appeal rights. I agree with Moldaver J.A. (as he then was), who, in refusing to grant the adjustment, wrote the following, at paras. 42-45: In seeking to have his sentence adjusted, the appellant does not suggest that the trial judge erred in imposing a penitentiary sentence on the charge of criminal negligence causing death — nor could he. This court . . . upheld a 30 month sentence for [the offence of criminal negligence causing death while street racing] in respect of Mr. Multani (2010), 261 O.A.C. 107 (Ont. C.A.). Significantly, in Multani’s case, the court refused to give effect to Mr. Multani’s submission that the sentence of 30 months should be reduced to 23 months for reasons relating to his immigration status. At para. 3 of the decision, the court noted that “while the deportation consequences of the sentence may be a proper factor to consider in determining the appropriate sentence in certain cases, immigration consequences cannot take a sentence out of the appropriate range.” That principle applies equally to the appellant.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-9", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "paras 17–18", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In his case, somewhat ironically, he seeks to benefit from the fact that he was convicted of two offences and therefore can seek the adjustments he is requesting without interfering with the overall length of his sentence — something Mr. Multani could not do given that he was only convicted of the single offence of criminal negligence causing death. No matter how one chooses to come at the issue, the bottom line remains the same. Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament’s will on matters of immigration.\n\nIt follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-10", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "para 19", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "I adopt the position asserted by Doherty J.A. in R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at paras. 156 and 158: . . . the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code . The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender . . . . . . . . . . If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for [the offender], the trial judge could look at the deportation consequences for [the offender] of imposing a sentence of two years less a day as opposed to a sentence of two years. I see this as an example of the human face of the sentencing process. If the future prospects of an offender . . . can be assisted or improved by imposing a sentence of two years less a day rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. While the assistance afforded to [the offender] by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence . . . . [Citations omitted.]", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-11", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "para 20", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Accordingly, the sentencing judge is not compelled in all circumstances to adjust a sentence in order to avoid the impact of collateral immigration consequences on the offender. It remains open to the judge to conclude that even a minimal reduction, i.e. from two years’ imprisonment to two years less a day, would render the sentence inappropriate for the particular offence and the particular offender. Collateral immigration consequences are but one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender’s personal circumstances.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-12", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "paras 21–22", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "The reasons of Doyon J.A. in R. v. Guzman, 2011 QCCA 136 (CanLII), provide an illustration of this approach to the treatment of collateral immigration consequences in sentencing. In that case, the Quebec Court of Appeal was asked to grant a minimal variation of a sentence to ensure that the sentence would not have adverse consequences for the offender’s immigration status. Doyon J.A. declined to acquiesce in this request, stating that, in light of the facts of the case, a reduction of the sentence, even a modest reduction of one day, would be both unfit and inconsistent with the principles of sentencing. He held as follows, at paras. 102-3: [translation] In summary, the status of the appellants and the impact of the prison sentences on their right to appeal to the Immigration Appeal Division are relevant circumstances and must be taken into consideration. However, given the circumstances in which the offences were committed, their seriousness, the profile of the appellants, and the objectives and principles of sentencing set out in the Criminal Code , I am of the view that the sentences inflicted on the appellants are fit even if they are not reduced by one day, as the appellants seek. . . . the near total lack of factors suggesting a real possibility of rehabilitation and change of behaviour on the part of the appellants convinces me that, even if the judges had been aware of all of the relevant facts, they would not have imposed sentences of less than two years’ imprisonment solely to allow the appellants to preserve their right of appeal. [Emphasis added.]\n\nIn sum, collateral immigration consequences may be just as relevant in sentencing as the collateral consequences of other legislation or of circumstances specific to the offender.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-13", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "paras 23–24", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "Where the issue of immigration consequences is brought to the trial judge’s attention and the trial judge applies the proper sentencing principles but nonetheless decides on a two-year sentence, then, absent fresh evidence, deference is owed to that decision. Where this issue has not been raised before the trial judge and the Crown does not give its consent, an affidavit or some other type of evidence should then be adduced for consideration by the Court of Appeal.\n\nAn appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on this issue. In such circumstances, the court’s intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor: M. (C.A.), at para. 90. As I explained above, however, the aim of such an intervention is to determine the appropriate sentence in light of the facts of the particular case while taking all the relevant factors into account. Although there will be cases in which it is appropriate to reduce the sentence to ensure that it does not have adverse consequences for the offender’s immigration status, there will be other cases in which it is not appropriate to do so.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-12904-14", - "doc_type": "caselaw", - "act_code": "2013 SCC 15", - "act_short": "Pham", - "act_name": "R. v. Pham", - "section": "", - "citation": "R. v. Pham, 2013 SCC 15", - "marginal_note": "paras 25–26", - "heading": "Collateral immigration consequences as a factor in fixing a criminal sentence", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the case at bar, the sentencing judge was not aware of the sentence’s collateral immigration consequences, and the appellate court accordingly had the authority to intervene. The Crown conceded both in the Court of Appeal and at the hearing in this Court that a reduced sentence of two years less a day remains within the range of otherwise fit sentences and that the imposed sentence of two years’ imprisonment should be reduced by one day. The Crown also agreed that the reduced sentence is the one that the sentencing judge would have imposed in the case at bar had he been aware of the collateral immigration consequences (R.F., at para. 69). It was wrong for the Court of Appeal to refuse the one-day reduction solely on the basis that the appellant had a prior criminal record or that it felt that he had “abused the hospitality that [had] been afforded to him by Canada” (para. 24). It is therefore appropriate to grant the variation of the sentence sought by the appellant. IV. Conclusion\n\nFor these reasons, the Court allowed the appeal at the conclusion of the hearing and reduced the sentence of imprisonment from two years to two years less a day. Appeal allowed.", - "current_to": "2013-03-14", - "last_amended": "", - "history": "[2013] 1 SCR 739", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12904/index.do" - }, - { - "id": "scc-1299-1", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 1", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "La Forest J. (dissenting) -- This case raises several issues concerning the definition of a \"Convention refugee\" in s. 2(1) of the Immigration Act, R.S.C., 1985, c. I‑2 (rep. & sub. c. 28 (4th Supp.), s. 1), first considered by this Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. That section reads: 2. (1) . . . \"Convention refugee\" means any person who (a)by reason of a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b)has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-2", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 2–3", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The present appeal is from a judgment of the Federal Court of Appeal which dismissed an appeal from an Immigration and Refugee Board decision denying the appellant's claim for Convention refugee status. At issue is whether a well‑founded fear of forced sterilization for failure to comply with China's birth control policy is a \"well‑founded fear of persecution\" for reasons of \"membership in a particular social group\". The appeal also deals with the proper interpretation of \"persecution\", \"membership in a particular social group\", and \"political opinion\" as defined in the Act and explained by this Court in Ward, supra. In considering these questions it will be necessary to determine the proper evidentiary approach to be applied to the testimony of a refugee claimant. Facts\n\nThe appellant, Kwong Hung Chan, is a citizen of the People's Republic of China (China) from Guangzhou City. His ethnic origin is Han Chinese. During the Cultural Revolution, he and his family suffered persecution because of his father's background as a landowner, but there was no other evidence of persecution for this reason beyond the period of the Cultural Revolution.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-3", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 4–5", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "In June, 1989, pro‑democracy students demonstrated in front of his restaurant. The appellant donated food and drinks and some money to support the students. From July 1989, until April 1990, officers of the Public Security Bureau (PSB) visited the appellant's restaurant ten or more times, usually the same group of four to six officers. The PSB officers accused the appellant of having participated in the pro‑democracy movement and of being a counter‑revolutionary. Staff and customers of the restaurant were interrogated. After the officers' second visit in mid‑July 1989, the appellant voluntarily reported to the local PSB office to write a confession of his pro‑democracy activities. The interrogatory visitations of PSB officers continued for months after this confession.\n\nIn November 1989, 12 years after their first child was born, the appellant's wife gave birth to their second child, thereby violating China's much publicized one-child birth policy. His evidence was that the PSB learned of the second child while conducting a census in April 1990. In late May 1990, the appellant and his family were accused by PSB officers and local neighbourhood committee members of violating China's birth control policy. The PSB officers immediately informed his wife's work unit of the family's population policy violation, causing her to lose her job.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-4", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 6–8", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "PSB officers together with members of the neighbourhood committee visited the appellant's home on five different occasions in all before his flight from China. He testified that they insulted his family, calling them the \"enemy of the class\" and stating that they had purposely disobeyed the government's birth control policy, thereby causing the neighbourhood committee to be deprived of a low birth rate bonus. The officers demanded that the appellant pay a substantial fine and that either the appellant or his wife be sterilized. The appellant testified that the PSB officers stated that if neither he nor his wife was willing to be sterilized then one of them would be forced to submit to this procedure. The appellant's family discussed their dilemma and decided that, in order to prevent further PSB harassment, the appellant would give the PSB officers a signed document stating that he would agree to undergo sterilization within three months. The appellant testified, however, that he \"never thought of going to have this kind of cruel operation\".\n\nDuring the last of the five visits to the appellant's family home, the PSB officers demanded payment of the monetary sanction imposed for violation of the one-child policy. The appellant told the officers that his family did not have sufficient money to pay the fine.\n\nThe appellant left China on July 19, 1990, three weeks after the fifth visit of the PSB officers to his home, and before the expiration of the three-month period within which he had agreed to submit to sterilization. The appellant travelled initially to Hong Kong and, on July 23, 1990, proceeded to Canada where he immediately sought Convention refugee status. His hearing before the Board occurred 16 months after he left China.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-5", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 9–10", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Before the Board the appellant claimed that after his departure his family continued to be harassed by the PSB for violating the one-child policy. Appellant's counsel submitted in evidence two letters sent from the appellant's wife in China, respectively six and ten months after his arrival in Canada. These letters recounted further PSB and neighbourhood visits in which the authorities continued to seek the appellant, demanding his arrest and sterilization. According to the second letter, the authorities seized certain items of the family's personal property as security for the still unpaid fine. The appellant's wife expressed concern that if the fines were not paid, the couple's second child would not be able to be a registered household member, thereby affecting the child's future social benefits. Subsequent to the second letter, the appellant was informed by telephone that his wife was taken and detained overnight by the police. The appellant further testified that the neighbourhood committee prevented the appellant's wife from getting another job by refusing to exercise their authority to issue the requisite job replacement certificate. The appellant stated that if he were returned to China he could be imprisoned, permanently prevented from working, and possibly murdered. He testified that the government would not listen to his complaints and that the neighbourhood committee might attempt to exact revenge for having adversely affected the bonus of some of its members. Judgments Immigration and Refugee Board (Refugee Division) October 23, 1991\n\nBefore the Refugee Board, the appellant claimed refugee status on the grounds of his political opinion and his membership in a particular social group.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-6", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 11–12", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Board first set forth the facts substantially as I have just given them. As Mahoney J.A. later observed, the Board neither made nor implied any adverse finding as to the credibility of his evidence, and the appellant's Personal Information Form and viva voce evidence are entirely consistent with one another.\n\nThe Board then proceeded to examine the appellant's claim on the stated grounds. As to membership in a particular social group, the Board identified the relevant group as his family, and dismissed his claim on that basis because it did not find the claimant had good ground for fearing persecution because of his family background. This portion of its reasons read as follows: Membership in a Particular Social Group This panel accepts that the various members of the claimant's family, including the claimant, have suffered persecution during the Cultural Revolution due to their family background. However, no evidence was adduced to suggest that the claimant was persecuted beyond the period of the Cultural Revolution. Furthermore, he was able to subsequently obtain a university education and several managerial positions. According to all the above, this panel does not find the claimant to have good grounds for fearing persecution based on his membership in a particular social group, namely, his family background.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-7", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 13", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Board then considered the appellant's claim to refugee status on the basis of well-founded fear of persecution because of his political opinion on two separate bases. First it found that the appellant did not have good grounds for fearing persecution by reason of his political opinion as manifested through his pro‑democracy activities. It then dealt with the appellant's allegation of a fear of persecution by being forced to undergo sterilization, which became the principal issue on appeal. The Board dismissed this ground because it did not find sterilization to be a form of persecution for a Convention reason, but rather as a government measure to implement a general family planning policy. There was, it added, no evidence adduced to suggest the appellant would be physically abused during the sterilization process. It also noted the appellant's testimony that he did not wish to have any more children. The Board, in consequence, held that the appellant's claim on this ground to be unfounded. Its reasons regarding political opinion read: Political Opinion Sometime between July and August 1989, the claimant voluntarily handed in a written confession of his pro‑democracy activities to the PSB. Thereafter, the claimant remained in the PRC until July 1990. Subsequent to his confession, the PSB officers visited the claimant's restaurant on numerous occasions to conduct interrogations of the claimant, his staff, and his customers on the subject of the pro‑democracy movement. The claimant was present during three such interrogations. Despite their knowledge of the claimant's participation in the pro‑democracy activities, the PSB never arrested or detained him, even though they had ample opportunity.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-8", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 13–15", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Furthermore, no evidence was adduced to suggest that the investigation into the matter of the claimant's involvement with the pro‑democracy movement went beyond April 1990. Finally, the claimant's family encountered no difficulties in renewing the claimant's driver's licence (exhibit # 3) with the PSB in December 1990, five months after the claimant had fled the PRC. Based on the evidence, this panel does not find the claimant to have good grounds for fearing persecution by reason of his political opinion as manifested through his pro‑democracy activities. The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the PRC government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant's fear of persecution in the form of a forced sterilization to be well‑founded.\n\nThe Board accordingly found that the appellant was not a Convention refugee. Federal Court of Appeal, [1993] 3 F.C. 675\n\nAn appeal to the Court of Appeal was dismissed by a majority; Heald and Desjardins JJ.A. gave separate reasons. Mahoney J.A. dissented. Heald J.A.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-9", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 16–17", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Heald J.A. initially noted the appellant's oral submission that the sole issue he would be raising was \"the sterilization issue\". He added that there was support on the record for the Board's finding that the appellant was neither persecuted because of his family membership nor because of his political opinion, so that these findings should not be disturbed. This left as the sole issue whether coerced sterilization could give rise to a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.\n\nOn the latter issue, Heald J.A. observed, at p. 686, that in Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), a decision rendered shortly before the present case, the court had concluded, at p. 322, that \"forced or strongly coerced sterilization\" constituted persecution since sterilization violated a woman's security of the person and subjected her to cruel, inhuman and degrading treatment. He agreed that it had not been shown that sterilization of a man was qualitatively different from that of a woman and that, therefore, forced or strongly coerced sterilization would amount to persecution.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-10", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 18–19", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Heald J.A. then noted, however, that in Cheung a distinction had been made between women who have more than one child and have a reasonable fear of forced sterilization and those who have more than one child but do not have such a fear. Only the former could claim a well‑founded fear of persecution under the Refugee Convention. He recognized that forced sterilization is not a law of general application in China, but rather an enforcement measure taken by some local authorities and tacitly accepted by the central government. He observed that the reasonable chance that acceptable sanctions such as economic measures might exist made the determination of whether or not a person has a well‑founded fear of persecution a subtle finding of fact.\n\nHeald J.A. contrasted the record of the present case to the uncontested testimony in Cheung, and found on the evidence that the appellant had a well‑founded fear of persecution equivocal. He seized upon specific portions of the appellant's translated testimony as revealing ambiguity by the appellant on whether or not he faced a reasonable chance of sterilization. Heald J.A. observed that the appellant's testimony evidenced the imposition of important economic sanctions which, as Cheung indicated, were not sufficient to establish persecution. Upon a consideration of the evidence, Heald J.A. remained unconvinced that the appellant had a well-founded fear of persecution in the form of sterilization. Nonetheless, he proceeded to consider the second branch of the Convention refugee test, the enumerated grounds, i.e., membership in a \"particular social group\" and \"political opinion\".", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-11", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 20", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Heald J.A., at p. 691, considered the appellant's particular social group as \"parents in China with more than one child who disagree with forced sterilization\". That group did not, he noted, fall within any of the three categories set out in the working rule in Ward, at p. 739, namely: (1) groups defined by an innate or unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence. The group did not fall within the first category because the number of offspring one has is neither innate nor unchangeable. The conditions of the second category were also not met because of the lack of voluntary association amongst members of this group. Finally, he noted that the group failed the third Ward category because it had no historical permanence.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-12", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 21", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Heald J.A. then elaborated upon his finding that the appellant's particular social group failed to meet any of the Ward categories. He noted that while parents who have breached the one-child policy are identifiable, the sub‑group of those persons faced with sterilization could not be recognized until after the treatment had been ordered. Indeed, he found that the group was defined solely by the fact that its members face a particular form of persecutory treatment; the finding of membership in a particular social group was dictated by the finding of persecution. Heald J.A. found that to employ this logic would reverse the statutory definition in which persecution must be driven by one of the enumerated grounds and not the inverse. He also noted, at p. 693, that Ward had rejected an approach whereby groups were defined \"merely by virtue of their common victimization as the objects of persecution\". He decided that the appellant's fear clearly stemmed from what he did as opposed to what he was.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-13", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 22", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Heald J.A. then considered the argument that a failure by a citizen to agree to sterilization under the policy in force in China was tantamount to a political statement in that it would be perceived as an anti‑governmental political opinion, which would constitute a well‑founded fear of persecution. He examined the appellant's testimony and found there was little evidence to support such a finding. Although this Court in Ward, at p. 746, adopted a broad definition of political opinion ‑‑ \"any opinion on any matter in which the machinery of state, government, and policy may be engaged\" ‑‑, some limits on the definition of political opinion were required to prevent the enumerated grounds from being obviated. The persecutory treatment emanated not from a refusal to submit to sterilization but from breach of the one-child policy which he likened to a breach of a provision of Canada's Criminal Code , generally not viewed as a political statement. He could see no evidence that the authorities perceived the appellant's acts as a political statement or as a challenge to their authority. Heald J.A. then considered that the population policy was well within the jurisdiction of the Chinese government, and could not, in itself, be categorized as persecutory. While Heald J.A. abhorred the penalty, he concluded, at p. 696, that the appellant had not succeeded in establishing that the alleged persecution was by reason of \"political opinion\". Desjardins J.A.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-14", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 23", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The other majority judge, Desjardins J.A., noted that while she found the appellant's testimony and evidence not free from ambiguity, she would not decide this appeal on its facts alone, choosing instead to address the highly complex issues regarding the meaning of the terms \"particular social group\", \"political opinion\", and \"persecution\".", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-15", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 24", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Desjardins J.A. quickly disposed of the contention that the appellant belonged to a \"particular social group\" under the second or third branches of the Ward working rule because these involved a voluntary status and there was none here. Turning then to the first branch, \"a group `defined by an innate or unchangeable characteristic'\", she found that the \"innate or unchangeable characteristic\" had to be distinguished from the basic human right which the group might defend. The innate characteristic had to be so strong that it would make a group of individuals what they are, independently of that for which they fight. While she accepted that forced sterilization violated the basic human right of reproductive control, Desjardins J.A. found that while the basic rights of the group were threatened, the appellant's group was not affiliated in so fundamental a manner as to qualify as a particular social group. A violation of a basic human right did not, by itself, create a \"particular social group\". She stated, at p. 721: The appellant is essentially targeted because of what he did (i.e., he violated the one‑child policy) and not because of what he is (i.e., a Chinese father). The reprimand, i.e., forced sterilization, is in violation of his basic human right, but this right is common to humanity, not common to his group. He objects, rightly so, to forced sterilization. But that is what he is fighting against. It cannot be an \"innate\" characteristic of his group. [Emphasis in original.]", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-16", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 25–27", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "She further found that the procedure carried out by some local officials in China was not a sterilization policy to prevent childbearing, but was instead a measure of punishment for excess births. She noted that the policy itself had not been challenged before the court and therefore remained legitimate.\n\nDesjardins J.A. then examined whether there was any basis for a claim on the ground of political opinion, under the guidelines provided by this Court in Ward. She considered whether the appellant's action, motivated in defence of his basic human rights, could be viewed by the Chinese local authorities as a gesture of defiance to the national authority, particularly since that country was governed by an authoritarian form of government. Absent specific evidence, however, she hesitated to make such an inference considering that local authorities enforced the sterilization policy.\n\nDesjardins J.A. added, however, that she preferred not to decide the case on the sole basis of lack of evidence, so she proceeded to a substantive examination of the issues as framed by the appellant. The claimant's objection, she noted, related to the means employed by some local authorities to enforce a general policy. This, she stated, raised two questions: first, whether forced sterilization as a measure of population control amounted to \"persecution\" under the Convention relating to the status of refugees and the Immigration Act, and second what the scope of the Convention itself should be.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-17", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 28–30", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "As to the first question, Desjardins J.A. acknowledged that the term persecution itself was broad but, as the record was silent as to the medical procedure followed, she found, at p. 724, that she \"must assume . . . that it is carried out through a normal [medical] procedure currently in use by those who voluntarily opt for this procedure elsewhere, including this country\".\n\nAs to the second question, Desjardins J.A. held, at p. 724, that since the validity of the Chinese government's population control policy was not in question, it could not be said \"that when a foreign government employs means that violate basic human rights, as known in Canada, so as to ensure the respect of a valid social objective, such means amount to `persecution' under the Convention\". She found that the Convention was not meant to protect those who resist the realization of valid state objectives but rather those who become victims by virtue of the pursuit of illegitimate goals by the state. Mahoney J.A. (dissenting)\n\nLike Heald J.A., Mahoney J.A. began by observing that the appellant's counsel had chosen not to argue any of the grounds raised in her memorandum but, instead, relying entirely on the Cheung case, supra, asserted, at p. 705, a claim based solely on the appellant's fear of sterilization as a member of a particular social group, namely, \"parents in China with more than one child who do not agree with the Government's sterilization policy\". Under these circumstances, he found it necessary to confine himself to the sterilization ground.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-18", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 31–32", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Having examined the record, he then cited, at p. 702, the penultimate paragraph of the refugee panel's reasons as being the \"entirety of the decision\" dealing with the appellant's fear of sterilization, which reads: The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the PRC government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant's fear of persecution in the form of a forced sterilization to be well‑founded.\n\nMahoney J.A. then reviewed the Board's decision, at p. 702. He first observed that \"[t]he suggestion that evidence is necessary to establish that forced sterilization entails physical abuse calls into question the panel's understanding of what is meant by `physical abuse' in any ordinary sense of the term\". He then added that the appellant's testimony that he did not wish to have more children and another remark expressing his personal intention did not support a conclusion that his fear of persecution in the form of forced sterilization was not well‑founded, because there was no suggestion that the authorities shared his opinion or that he thought they did.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-19", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 33–34", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mahoney J.A. then concluded these preliminary comments, at p. 702, by stating that \"[t]he validity of the tribunal's finding that `sterilization (is not) a form of persecution for a Convention reason' depends entirely on the qualification `for a Convention reason'\".\n\nThe remainder of his reasons are devoted to that issue. In undertaking that task Mahoney J.A. first considered the case of Cheung, in which a unanimous panel of the Federal Court of Appeal consisting of himself, Linden and Stone JJ.A. had previously decided that forced sterilization fell within the definition of persecution as contemplated by the Convention refugee definition. He cited (at p. 703) from the reasons of Linden J.A. who stated: Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in pursuit of a legitimate end is still brutality. The forced sterilization of a woman is a fundamental violation of basic human rights. It violates Articles 3 [life, liberty and security of the person] and 5 [cruel, inhuman or degrading treatment or punishment] of the United Nations Universal Declaration of Human Rights.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-20", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 35", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mahoney J.A. then referred, at p. 704, to E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, in which this Court found, in the case of a female incompetent, that non‑therapeutic sterilization without consent was a \"grave intrusion on a person's rights\" and an \"irreversible and serious intrusion on the basic rights of the individual\". He found no distinction between the sexes that would alter this characterization. Mahoney J.A. stated, at p. 704, that \"[w]hatever view may be taken of the other sanctions by which the population control policy is enforced, involuntary sterilization ‑‑ physical abuse that is an irreversible and serious intrusion on the basic rights of the individual ‑‑ is persecution\". The evidence, he noted, indicated that the central government, by its passivity, either tolerated or abetted the excesses of local officials in their enforcement of its population control policy by means it officially disavowed. He concluded that a well‑founded fear of sterilization amounted to a well‑founded fear of persecution and, on the evidence, that the appellant's fear of sterilization were he returned to China was both subjectively and objectively well‑founded.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-21", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 36", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mahoney J.A. then proceeded to determine whether the reason for persecution was membership in a particular social group and, if so, whether that social group fell within one of the categories identified in Ward. He found no meaningful distinction between the particular social group identified in Cheung and the present case. That case, he stated, held that women in China who have more than one child and were faced with forced sterilization are to be considered as a \"particular social group\". He dismissed as unacceptable the submission of the appellant's counsel that the social group in issue was women in China with more than one child who do not agree with the government's sterilization policy.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-22", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 37", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mahoney J.A. then observed that if under the refugee determination process it was decided that the reason for the persecution was membership in a particular social group, the next question was whether that social group fell within one of the categories identified in Ward. To assist in the latter determination, he posed the question (at p. 707): \"is the personal characteristic shared by members of the group analogous to race, religion, nationality or political opinion in that it is either unchangeable because it is innate or a fact rendered permanent by history or, although changeable, so fundamental to their human dignity that they should not be forced to abandon it?\" He then applied the Ward working rule and decided, at pp. 707-8, that: As to the second and third categories, I take the notion of \"voluntary association\" to be an antonym to the \"innate or unchangeable characteristics\" of the first, and not to imply that an organization has necessarily been joined or an association formed. That would appear to accord with the \"normal\" definition of the UNHCR Handbook. 77. A \"particular social group\" normally comprises persons of similar background, habits or social status. . . . I have been unable to conceive of a reason, fundamental to human dignity, for persons to associate formally which would not result in a membership that was either religious or expressive of political opinion and, thus, obviate the need for recourse to the particular social group class of the definition. In my opinion, it is the shared reason fundamental to their human dignity that defines and constitutes the second group. A conscious act of association is not an essential element.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-23", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 37–38", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "I should add that he had earlier noted that the working rules in Ward were framed in terms of individuals rather than organized groups.\n\nMahoney J.A. then cited (at p. 709) a passage from Cheung, previously approved by this Court in Ward: All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a woman's reproductive liberty is a basic right \"ranking high in our scale of values\". And he noted, at p. 709, the observation in Ward that this approach placed \"the focus of the inquiry . . . on the basic right of reproductive control\". Finally, Mahoney J.A. observed, at p. 709, that \"[n]othing in Cheung suggests that the claimant had adhered to any sort of a formal association\".", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-24", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 39", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "In concluding Mahoney J.A. expressed his profound disagreement with the notion that the legitimacy of the population control policy excluded persecution in pursuit of it from the Convention refugee definition. He would have allowed the appeal, set aside the decision of the Refugee board and declared the appellant to be a Convention refugee on the following basis (at pp. 709-10): I understand Eve to be authority for and Ward, by its treatment of Cheung, to approve the proposition that the right to reproductive control is fundamental to human dignity. If it may be correctly said that, as in Ward, this appellant is threatened by persecution for what he (and his wife) did, not for what they were, what they and each of them, did ‑‑ exercise a fundamental human right to reproductive control ‑‑ is very different in quality to what Ward had done and identical to what Ms. Cheung (and her husband) had done. . . . In my opinion, this case is not distinguishable from Cheung and nothing in Ward casts any doubt on the correctness of the Cheung decision. Quite the contrary. The Appeal Before This Court", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-25", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 40", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant sought and was granted leave to appeal to this Court. He alleged that the Federal Court had erred in the following respects: (a)in deciding that forced sterilization was not persecution as contemplated in the definition of Convention refugee; (b)in deciding that the appellant did not face persecution on the basis of \"political opinion\"; (c)in deciding that the appellant did not fall within a \"particular group\" because his affiliation with the social group was based not on what he was, but what he did; (d)by making unnecessary and improper findings of fact and credibility in deciding whether the appellant faced a reasonable chance of persecution by sterilization; and (e) in departing from its recent decision in Cheung, which held that a person who faced sterilization for breach of China's one-child policy was a member of a particular social group.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-26", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 41", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the Court of Appeal, counsel for the respondent the Minister of Employment and Immigration had contested all the substantive legal grounds advanced by the appellant in the present case. In the appeal before this Court, however, counsel abandoned most of those positions. Thus he accepted paragraph (a) that forced sterilization constituted persecution, which he qualified as \"an extreme violation of the right to security of the person\", and as such \"an extreme violation of his human rights\". He further accepted on the basis of instructions from the Minister and this Court's decision in Ward, supra, that the appellant could be a member of a particularized group, and that association with such a group is not limited to some sort of conscious affiliation in the sense of an awareness of membership. In short, counsel does not appear to differ from the appellant as regards the definition of a particular group. Far from disagreeing with the appellant, in common with all the interveners, he encouraged the Court to clarify these issues. Unlike his position in the Court of Appeal, his argument before our Court was that there was no evidence in the present case upon which the Board could conclude that the appellant was a member of a particular group or alternatively that it was unsafe for a court of appeal to decide the matter, in which case it should be referred back to the Board. I add that counsel took the view that the Court of Appeal did not err in holding, on the evidence, that the appellant did not face persecution by reason of political opinion. I shall deal with all these issues. Analysis The Factual Issue", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-27", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 42", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Let me state at the outset that the respondent Minister was, in my view, correct in adopting the position he took in relation to the substantive legal issues set forth in the preceding paragraph, and I shall, as all parties requested, attempt to clarify these issues later. Before doing so, however, it is first necessary to consider the respondent's contention that there was no evidence upon which the Board could conclude that the appellant was a member of a particular group. I say immediately that I cannot accept this contention. Rather, I agree with the alternative position of both parties that it would be unsafe for a court of appeal to decide the matter and would remit the matter back to the Board. The Board, it will be remembered, dismissed the appellant's allegation of a fear of persecution by being forced to undergo sterilization on the legal ground that it did not find sterilization to be a form of persecution for Convention reasons. It made no factual finding for or against the appellant's facing a reasonable chance of sterilization. That, coupled with the fact that in the words of the members of the majority of the Court of Appeal, the evidence on a number of crucial issues is \"equivocal\" or \"ambiguous\", in itself, justifies ordering a new hearing before the Board, the members of which have the relevant experience and training to assess such matters. I will in the course of these reasons have occasion to refer to some instances of these factual ambiguities about which, removed as we are, my colleague Justice Major and I would tend to take divergent views.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-28", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 43–44", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Since I have determined that the case should be remitted to the Board, I would ordinarily prefer not to comment further on the facts. However, since my colleague has decided that the appeal should be dismissed on a factual basis, I find it necessary to give my perspective on the facts. In doing so, however, I am cognizant that this Court is a court of law, not facts. Accordingly, as triers of fact, it is incumbent on the Board, and not this Court, to find whether or not the appellant was in fact a refugee uninhibited by any views I may have formed on the matter.\n\nIn undertaking a factual examination, it seems to me, one cannot ignore the contextual considerations arising out of the inherent obstacles that attend refugee hearings. In elucidating what I have in mind, I find it necessary to consider both the purpose of a refugee hearing and the inherent obstacles that attend this particular inquiry. The challenges of an immigration hearing were well summarized in a recent article by Michael Valpy (\"The suspicion of a gelded refugee process\", Globe and Mail (Toronto), March 7, 1995, at p. A2), who remarked: A refugee hearing is probably one of the most difficult judicial or quasi‑judicial events existing in Canada. Its purpose is to examine someone from a different culture, speaking a different language, from a country that lies perhaps thousands of kilometres away. Its objective is to determine not so much what has happened but what will happen if that person is returned to where he or she came from. [Emphasis in original.]", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-29", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 45", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "A reviewing court must, in assessing a Board's factual decision, attempt to put itself in its position. This can pose serious difficulties where the Board has made no finding on a critical issue but has simply disposed of the matter on the basis of a legal finding. This difficulty is increased because of difficulties that arose in the process of translation. Possibilities of distorted renderings of the evidence always exist, and this at times makes it difficult to understand when reduced to writing, a factor that is not absent in this case. Moreover, at a critical point in the testimony ‑‑ when the appellant responded to a question concerning his disobeying the Chinese one-child policy ‑‑, the Presiding Member of the Refugee Board detected that the appellant had responded in a more comprehensive manner than the interpreter. The appellant was then told that he would have to ensure that his sentences were short enough that the interpreter would be able to translate fully. Whether or not vital information was lost through imprecise or incomplete translation of the appellant's testimony that would be relevant in determining factual issues never considered by the Board is unknown. Unfortunately, the Board did not direct the Refugee Hearing Officer to cross‑examine the appellant, a measure that might well have enhanced the evidentiary foundations of this case.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-30", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 46", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "These considerations reinforce my view that this Court should not simply disallow the appellant's Convention refugee claim on the basis that he failed to establish that he had an objectively well‑founded fear of persecution in the form of sterilization. Instead, as I noted, I believe the appellant is entitled to have his claim reheard before a Refugee Board in accordance with the guidelines of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, the \"UNHCR Handbook\". As I noted in Ward, at pp. 713-14, while not formally binding upon signatory states such as Canada, the UNHCR Handbook has been formed from the cumulative knowledge available concerning the refugee admission procedures and criteria of signatory states. This much‑cited guide has been endorsed by the Executive Committee of the UNHCR, including Canada, and has been relied upon for guidance by the courts of signatory nations. Accordingly, the UNHCR Handbook must be treated as a highly relevant authority in considering refugee admission practices. This, of course, applies not only to the Board but also to a reviewing court.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-31", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 47", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Under the UNHCR Handbook heading \"Establishing the facts\" the following critical paragraphs appear. They need to be read as a whole but I have emphasized some parts to give an immediate flavour of their content. 196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. 197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant. . . . 201.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-32", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 47", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Very frequently the fact‑finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant's experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be \"the last straw\"; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear \"well‑founded\".... 202. Since the examiner's conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an \"undeserving case\". . . . 203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to \"prove\" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt. 204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. [Emphasis added.] China's One-Child Policy", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-33", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 48", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the state of affairs existing in certain countries from which a refugee seeks asylum may well be entirely unknown to most Canadians, the Refugee Board is in a different position, given its constant concern with such matters. That noted, the Refugee Board must be conceded a reasonable amount of time to familiarize itself with the latest international developments causing refugees to flee to countries such as Canada which have accepted the responsibility of harbouring persecuted persons. Such a highly publicized matter as China's population policy, which has been the subject of much attention in human rights and immigration law circles as well in the popular media since its inception in 1979, can be said to fall well within the UNHCR Handbook category of \"generally known facts\" (see paragraph 204 of the UNHCR Handbook, supra).", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-34", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 49", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Canadian refugee boards have considered refugee claimants from China alleging fear of persecution in the form of sterilization dozens of times in the last five years alone; see infra. Indeed, during that period there have been more than 20 refugee claimants who alleged forced sterilization or forced abortion from Guangzhou City alone, the home city of the appellants in both the present case and in Cheung. I state in passing that while there have been many Chinese claimants alleging persecution similar to that of the appellant, there has been, by no measure, a deluge of refugee claimants. As early as 1989 a Refugee Board accepted the testimony of a refugee claimant alleging sterilization as a form of persecution; see H. (W.I.) (Re), [1989] C.R.D.D. No. 15 (No. V89‑00501). There is no evidence that following this decision, for instance, Canada's ability to fulfil its Convention refugee admittance obligations was in any way compromised. Rather, over the last five years, Canada has continued to grant Convention refugee status to approximately 70 percent of all claimants, or 15,224 persons in 1994: Immigration and Refugee Board, News Release, March 14, 1995. Only 314 of those claimants in 1994 were from China and, of course, many of these claimed Convention refugee status for reasons other than coerced sterilization.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-35", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 50", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is a generally known fact that nations subject to the same Convention refugee obligations as Canada, such as the United States and Australia, have also been concerned with Chinese refugee applicants recounting stories of alleged persecution remarkably similar to that of the present appellant: for representative examples see Guo Chun Di v. Carroll, 842 F.Supp. 858 (E.D.Va. 1994); Xin‑Chang Zhang v. Slattery, 859 F.Supp. 708 (S.D.N.Y. 1994), and Matter of Chang, Int. Dec. 3107 (BIA1989). Academic authorities have also extensively canvassed the topic of refugees from China alleging persecution in the form of coerced sterilization; see, among other sources, Stanford M. Lin, \"China's One‑Couple, One-Child Family Planning Policy as Grounds for Granting Asylum ‑‑ Xin‑Chang Zhang v. Slattery, No. 94 Civ. 2119 (S.D.N.Y. Aug. 5, 1994)\" (1995), 36 Harv. Int'l L.J. 231; Tara A. Moriarty, \"Guo v. Carroll: Political Opinion, Persecution, and Coercive Population Control in the People's Republic of China\", 8 Geo. Immigr. L.J. 469; Daniel S. Gewirtz, \"Toward a Quality Population: China's Eugenic Sterilization of the Mentally Retarded\" (1994), 15 N.Y.L. Sch. J. Int'l & Comp. L. 139; Lisa B. Gregory, \"Examining the Economic Component of China's One-Child Family Policy Under International Law: Your Money or Your Life\" (1992), 6 J. Chinese L. 45, and E. Tobin Shiers, \"Coercive Population Control Policies: An Illustration of the Need for a Conscientious Objector Provision for Asylum Seekers\" (1990), 30 Va. J. Int'l L. 1007.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-36", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 51", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The U.S. Department of State's Country Reports on Human Rights Practices for 1993, February 1994 (\"Country Report\") summarizes what an examination of the mentioned cases and articles indicates. Earlier, largely unchanged versions of this oft‑cited annual report, were available at the time the Board rendered judgment. The Country Report states at p. 609: China's population has roughly doubled in the past 40 years to nearly 1.2 billion people, over a fifth of all humanity. In the 1970's and 1980's China adopted a comprehensive and highly intrusive family planning policy. This policy most heavily affects Han Chinese in urban areas. For urban couples, obtaining permission, usually issued by their work units, to have a second child is very difficult. Numerous exceptions are allowed for the 70 percent of Han who live in rural areas. Ethnic minorities are subject to less stringent population controls. Enforcement of the family planning policy is inconsistent, varying widely from place to place and year to year. The population control policy relies on education, propaganda, and economic incentives, as well as more coercive measures, including psychological pressure and economic penalties. Rewards for couples who adhere to the policy include monthly stipends and preferential medical and educational benefits. Disciplinary measures against those who violate the policy include stiff fines, withholding of social services, demotion, and other administrative punishments, including, in some instances, loss of employment. Unpaid fines have sometimes resulted in confiscation or destruction of personal property. Because penalties for excess births may be levied against local officials and the mothers' work units, many persons are affected, providing multiple sources of pressure.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-37", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 51–52", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Physical compulsion to submit to abortion or sterilization is not authorized, but Chinese officials acknowledge privately that there are still instances of forced abortions and sterilizations in remote, rural areas. Officials maintain that, when discovered, abuses by local officials result in discipline or retraining. They admit, however, that stronger punishment is rare and have not documented any cases where punishment has occurred.\n\nThe Country Report, at p. 605, specifically discusses \"Political and Other Extrajudicial Killing\" and \"Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment\". The report finds that, in 1992 for instance, at least 12 people died as a result of torture while in Chinese police custody. An example is offered of a farmer who was beaten to death by local officials after he protested the level of taxes and fees. Credible reports are also noted of both male and female detainees being punished with the use of cattle prods, electrodes, beatings, and shackles. According to the Country Report, some persons involved in both the 1989 Tianamen Square uprising and certain activists who wish to free Tibet from Chinese occupation continue to be detained as political prisoners. The number of such persons is impossible to determine but, by some estimates, it may be in the thousands. In sum, the Country Report offers a portrait of a nation with, at best, a checkered human rights record.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-38", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 53–54", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "I should add that other countries that have assumed Convention refugee obligations are also confronting Chinese refugee claims alleging coerced sterilization similar to that of the present appellant. Australia is one; see for example the recent decision of the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v. Respondent A (1995), 130 A.L.R. 48, to which reference is made later in these reasons. Interestingly, the husband and wife in that case came, once again, from the environs of Guangzhou City. Benefit of the Doubt\n\nThe appellant's account of harassment and threatened persecution at the hands of PSB officials can be compared with the generally known factual picture that emerges upon an examination of all available evidence from the mentioned sources. Using the guidelines provided by UNHCR Handbook for establishing the facts of a given case (see especially paragraph 203), it can be determined whether a Convention refugee is entitled to any benefit of the doubt regarding his story.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-39", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 55", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case, the appellant's description of events very closely conforms with what is known now, and what was readily available to the Refugee Board at the time of his hearing. The appellant is a member of the Han Chinese ethnic group. He is from an urban area, Guangzhou City, whose local authorities practise population control coercion in the form of forced sterilization as confirmed by numerous other refugee claimants. The appellant claims that he was subject to psychological pressure and threatened with disciplinary measures including stiff fines and coerced sterilization, not necessarily by the government itself, but certainly by local officials of the PSB and neighbourhood committee members. He testified that his wife has been prevented from acquiring another job. His wife's letters stated that personal property had been confiscated and that their second child's registration within his family was threatened, a serious penalty in a country in which \"unauthorized\" children lose their right to free education and health care subsidies; see, among other sources, Gregory, supra, p. 52. He further testified that if he were returned to China, disciplinary measures could include imprisonment, denial of access to employment, and possibly murder. In effect, his testimony can be seen to reflect what the Country Report cites as customary; his decision to have a second child had the effect of providing multiple sources of pressure from both PSB officers and neighbourhood committee members.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-40", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 56", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant's account of events so closely mirrors the known facts concerning the implementation of China's population policy that, given the absence of any negative finding as to the credibility of the appellant or of his evidence, I think it clear that his quite plausible account is entitled to the benefit of any doubt that may exist. With respect, I see no merit in the approach taken by some members of the court below and by my colleague Major J. to seize upon sections of the appellant's testimony in isolation. Indeed, I find such a technique antithetical to the guidelines of the UNHCR Handbook (see paragraph 201).", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-41", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 57", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "If such an unremitting approach were regularly applied to the brief testimony of refugee claimants who generally receive and answer questions through the aid of an interpreter, it can be certain that Canada would annually admit very few refugees indeed. I recognize that, if it so chooses, the Government of Canada is quite capable of renouncing its voluntarily adopted obligations to grant asylum for Convention refugees claimants. Until such time, however, I believe that the UNHCR Handbook and s. 3(g) of the Immigration Act, which declares that it promotes Canada's domestic and international interests to recognize the need to fulfil its \"international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted\", must be followed. Given these explicit guidelines, I think it clear that Canada's relatively small yet nonetheless important refugee burden should not be thwarted by an unduly stringent application of exacting legal proof that fails to take account of the contextual obstacles customary to refugee hearings. I am mindful that the possibility of a flood of refugees may be a legitimate political concern, but it is not an appropriate legal consideration. To incorporate such concerns implicitly within the Convention refugee determination process, however well meaning, unduly distorts the judicial‑political relationship. To alter the focus of refugee law away from its paramount concern with basic human rights frustrates the possibility that foreign persecution may be eventually halted by international pressure.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-42", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 57–58", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "To accept at the judicial level that fundamental human rights violations do not serve to grant Convention refugee status minimizes one of the principal incentives the international community has to denounce foreign persecution and attempt to affect change abroad: to avoid a flood of refugee claimants.\n\nViewing the appellant's evidence in the manner described by the UNHCR Handbook helps elucidate two further matters. The appellant testified that subsequent to his flight from China his wife had yet to be sterilized, although she too had been threatened with sterilization. I do not see that this fact can be used to make any fear of persecution the appellant may have had less legitimate. If anything, this evidence supports the appellant's apprehension that he was the true object of the PSB scrutiny. Furthermore, simply from a pragmatic standpoint, it may well be that the PSB and neighbourhood committee elected not to sterilize the appellant's wife, given that the law against a couple having more than one child could not be further violated when her husband was in exile in Canada.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-43", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 59–60", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The evidence that the appellant's family was able to renew his driver's licence with the PSB some months after he fled the country may be viewed in a similar light. With the appellant out of the country, to deny the appellant a driver's licence would serve no purpose; he would not be driving in China in any event. Assuming the authorities did not know the claimant had left the country, the granting of the licence would not entirely dissipate the fear, whether viewed objectively or subjectively, that the claimant would ultimately be sterilized. At best, I think it is a factor that can only be given limited weight, given the speculation that seems necessary in order to ascertain any ultimate significance to it. Further, it must be remembered that it must in the end be considered with the whole of the evidence, keeping in mind that in such consideration the appellant must be given the benefit of the doubt.\n\nIn sum, I do not accept that this appeal can be dismissed as easily as suggested by my colleague. As already noted, no conclusion was drawn, in favour or against the appellant's facing a reasonable chance of sterilization. However, the appellant may be entitled to the benefit of the doubt as his personal account is widely supported by, and is consistent with, what is known of the current implementation of the population policy within his region of China. What remains to be determined, then, is whether the implementation of that policy, through sterilization by local officials, can constitute a well-founded fear of persecution in light of this Court's decision in Ward and that of the Federal Court of Appeal in Cheung, supra. State Complicity and Persecution", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-44", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 61–62", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "As was made clear in this Court's decision in Ward, the alleged persecution does not have to emanate from the state itself to trigger a Convention obligation. Serious human rights violations may well issue from non‑state actors if the state is incapable or unwilling to protect its nationals from abuse. A fortiori, this must apply to subordinate state authorities. The security of nationals is the essence of sovereignty and the most basic obligation a state owes its citizens.\n\nIn terms of the present appeal I am in agreement with the following statement, at p. 704, of Mahoney J.A. in the Court below: The evidence does not lead to the conclusion that the central government of China is unable to protect its citizens from the excesses of the local authorities. Rather, it indicates a central government which, by its passivity, is either tolerating or abetting the enforcement of the population control policy by a means which it officially disavows.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-45", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 63", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "This conclusion is, in my view, incontestable upon a reading of the mentioned international jurisprudence and academic authorities on the subject. As the Country Report, supra, makes clear, while local officials are rarely punished for abuses committed during the sterilization process, economic sanctions are levied against such officials when birth rates are too high. It is evident, then, that the Chinese government, if nothing else, creates a climate in which incentives for mistreatment are ripe. Accordingly, I find it neither necessary nor possible from the evidentiary record to determine the precise degree to which the Chinese government is involved in sanctioning the particular conduct of its own local officials. It will often be the case that a refugee claimant will not know with any certainty the operational structure of his or her persecutor when such actor is a government or organization. Indeed, it is quite conceivable that a refugee may only have a vague notion as to why he or she is being persecuted. In a situation like the present, it is enough that there is clear and convincing evidence that the government of China is not using its capabilities to protect persons in the position of the appellant.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-46", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 64", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "While the Federal Court of Appeal unanimously agreed that local authorities carried out sterilization procedures without the authority of the central government, there was some confusion as to whether the legitimacy of the population policy of the Chinese government was at issue. Desjardins J.A. noted that the legitimacy of the government policy itself had not been challenged and therefore remained proper. Since the legitimacy of the Chinese government's population control policy was not in question, she reasoned, at p. 724, that it could not \"be said that when a foreign government employs means that violate basic human rights, as known in Canada, so as to ensure the respect of a valid social objective, such means amount to `persecution' under the Convention\". Heald J.A., however, was of the view that the population policy of the Chinese government was well within the jurisdiction of the government given its concern with its population problem. He found that an analogy to criminal law was apt in terms of whether the appellant's actions could be considered a political opinion. He reasoned, at p. 695, that what occurred in this case was a \"breach of a law and reluctance to undergo the ensuing penalty\".", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-47", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 65", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "I should say that I do not in general consider it appropriate for courts to make implicit or explicit pronouncements on the validity of another nation's social policies. In the present case, the full extent of the Chinese population policy is unknown in this country and undue speculation as to its legitimacy serves no purpose. Whether the Chinese government decides to curb its population is an internal matter for that government to decide. Indeed, there are undoubtedly appropriate and acceptable means of achieving the objectives of its policy that are not in violation of basic human rights. However, when the means employed place broadly protected and well understood basic human rights under international law such as the security of the person in jeopardy, the boundary between acceptable means of achieving a legitimate policy and persecution will have been crossed. It is at this point that Canadian judicial bodies may pronounce on the validity of the means by which a social policy may be implemented in an individual case by either granting or denying Convention refugee status, assuming of course that the claimant's credibility is not in question and that his or her account conforms with generally known facts.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-48", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 66", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "I find further that questions as to whether the foreign policy is of general application, a focus of concern for the majority below, may not be crucial to an individual refugee determination. It is quite possible that a law or policy of general application may well be violative of basic human rights; the apparent policy of the former Khmer Rouge regime in Cambodia mentioned by the intervener, Canadian Council for Refugees, whereby people who wore eyeglasses were arrested, detained, and then executed, if of general application, would still be very much persecutory. I note, on the facts of the present case, that the evidence strongly supports a belief that the population policy has not been applied and enforced generally. Urban Han Chinese, with variations by region, appear to bear the brunt of the policy; see Country Report, supra. Non‑Han Chinese in rural areas, for instance, appear to be permitted to have as many as three or four children; see Gregory, supra, p. 53. The appellant of course is an urban Han Chinese from a region that has been the subject of many accounts of implementation of the population policy by forced sterilization.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-49", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 67", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Some mention of analogies between valid criminal law and the one child per couple policy is warranted. As I made clear in Ward, Parliament has codified a criminal law exemption in s. 19(1)(c) of the Immigration Act, the essence of which states that persons who have been convicted of an offence will not be granted Convention refugee status if the same offence, similarly committed in Canada, would constitute an offence in Canada punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed. It is true, as I explained in Ward, at p. 742, that the Act accords some flexibility to the Minister to permit entry to claimants with past criminal records. However, this is insufficient to permit the Act to be read as supporting the concern expressed by Desjardins J.A., at p. 724, that \"those who face capital punishment as a consequence of a breach of a valid and legitimate piece of legislation would automatically become refugees under the Convention\" (emphasis added). A plain reading of the relevant provisions of the Act simply does not support this apprehension. Indeed, by the reasoning of Desjardins J.A., which accords extensive deference to \"valid and legitimate\" legislation of foreign nations, it would seem that had the Chinese government designated death as the appropriate penalty for violation of the population policy, such conduct could not be seen as persecutory since it could be classified as mere resistance to the \"realization of valid state objectives\". Respectfully, I am unable to accept that approach.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-50", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 68", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Refugee boards and supervising appellate courts must take a cautious approach to the invocation of state authority arguments as Linden J.A. made clear in his judgment in Cheung. I endorse his finding, at p. 323, that: Even if forced sterilization were accepted as a law of general application, that fact would not necessarily prevent a claim to Convention refugee status. Under certain circumstances, the operation of a law of general application can constitute persecution. In Padilla v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 1 (F.C.A.), the Court held that even where there is a law of general application, that law may be applied in such a way as to be persecutory.... if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-51", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 69", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "This approach is, in my view, eminently sensible. It returns the focus of a refugee hearing to the essential question of whether the claimant's basic human rights are in fundamental jeopardy. This point was underscored in Ward where it was stated, at p. 733, that \"[u]nderlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination\". In that case, this Court endorsed an approach in which the concern of refugee law ought to be the denial of human dignity in any key way with the sustained or systemic denial of core human rights as the appropriate standard. The Court there noted, at pp. 733-34: This theme sets the boundaries for many of the elements of the definition of \"Convention refugee\". \"Persecution\", for example, undefined in the Convention, has been ascribed the meaning of \"sustained or systemic violation of basic human rights demonstrative of a failure of state protection\"; see Hathaway [The Law of Refugee Status (Toronto: 1991)], at pp. 104‑5. So too Goodwin‑Gill [The Refugee in International Law (Oxford: 1983)], at p. 38 observes that \"comprehensive analysis requires the general notion (of persecution) to be related to developments within the broad field of human rights\". This has recently been recognized by the Federal Court of Appeal in the Cheung case.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-52", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 70–71", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Both Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154, and Cheung were approved in Ward for developing tests making the consideration of basic human rights the appropriate focus of a refugee inquiry. It was noted that groups defined by a characteristic that is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights, were beyond Canada's obligation and responsibility. The essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way. This question must be asked of the present appellant's allegations.\n\nThese basic human rights are not to be considered from the subjective perspective of one country, as Desjardins J.A. suggests. By very definition, such rights transcend subjective and parochial perspectives and extend beyond national boundaries. This does not mean, however, that recourse to the municipal law of the admitting nation may not be made. For such municipal law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights. Accordingly, this Court's decision in Eve, supra, which concerned an application for the non‑therapeutic sterilization of a mentally incompetent adult by a parent, may be looked to for guidance.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-53", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 72", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Eve, at pp. 431 and 432, this Court affirmed that forced sterilization constitutes a \"grave intrusion on a person's rights\" and as an \"irreversible and serious intrusion on the basic rights of the individual\". Certainly this is true in this kind of context. Two of the justices below followed this reasoning, citing Eve directly, while the other acknowledged that he found this particular penalty abhorrent. In my opinion, the sanction of forced sterilization against the appellant in the present case would constitute a gross infringement of the security of the person and readily qualify as the type of fundamental violation of basic human rights that constitutes persecution as discussed in the mentioned authorities and the UNHCR Handbook.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-54", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 73", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "I note that Desjardins J.A. correctly found, on the strength of Eve, that forced sterilization constitutes a violation of a basic human right. However, she later decided, at p. 724, that, as the record was silent concerning the medical procedure to be followed, she \"must assume . . . that it is carried out through a normal procedure currently in use by those who voluntarily opt for this procedure elsewhere, including this country\". With respect, I do not agree. In sum, I think that whatever technique is employed, it is utterly beyond dispute that forced sterilization is in essence an inhuman and degrading treatment involving bodily mutilation, and constitutes the very type of fundamental violation of basic human rights that is the concern of refugee law. I fully endorse the remark of Linden J.A. in Cheung, at p. 324, that \"[t]here are a few practices that could be more intrusive and more brutal than forced sterilization\". I add that even if the issue were dependent on the method of sterilization adopted, my assumptions about its nature would be different from that adopted by Desjardins J.A. If the specific nature of the sterilization procedure had to be made, I would tend to the view that the procedure would be most unlike the consensual procedure that would occur in Canada, a highly industrialized society with some of the finest medical facilities and practitioners in the world. The appellant, instead, would be sterilized for punitive rather than therapeutic reasons, in a nation where sterilization abuses have already been documented, at the behest of persons angry at the appellant for depriving them of a bonus for low birth rates, and in facilities most unlikely to rival a Canadian hospital. Well-Founded Fear", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-55", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 74", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Ward confirmed the approach of Heald J.A. in Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.), that a well-founded fear must be evaluated both subjectively and objectively. The UNHCR Handbook enunciates an identical approach. As to the former, the Board made no attempt in its written reasons to assess the evidence respecting the appellant's fear of persecution in the form of forced sterilization. It merely decided that it did not find sterilization to be a form of persecution, accepting it as a measure on the part of the Chinese government to implement a family planning policy.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-56", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 75", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Is there evidence on the record upon which this Court can find that the appellant exhibited a subjective fear of forced sterilization? The ambiguity of the evidence makes the determination of the appellant's subjective fear an intricate task. Adding to the obstacles preventing a rapid determination of the appellant's subjective fear is the evidence, apparent upon an examination of the written record, that in at least two instances, the appellant was unwilling to state or elaborate upon certain information, a phenomenon not at all uncommon to refugee claimants from other cultures. The UNHCR Handbook offers substantial guidance in this area: 46. The expressions \"fear of persecution\" or even \"persecution\" are usually foreign to a refugee's normal vocabulary. A refugee will indeed only rarely invoke \"fear of persecution\" in these terms, though it will often be implicit in his story. Again, while a refugee may have very definite opinions for which he has had to suffer, he may not, for psychological reasons, be able to describe his experiences and situation in political terms. . . . 198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis‑à‑vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case. [Emphasis added.] The appellant twice noticeably constrained his testimony in regard to the anger and abuse of the PSB directed at the appellant and his family for violating the birth control policy, stating that it \"would be very difficult for me to tell you in detail\" and that \"for me it's very hard to say out loud\".", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-57", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 75–76", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant's reluctance to speak at such a crucial stage of his testimony ‑‑ and the lack of intervention on the part of the Board, when faced with the appellant's hesitation, to invite him to articulate his experiences fully ‑‑ would, if one gives credence to the UNHCR Handbook, appear not uncommon in a refugee hearing.\n\nGiven the problems with the translation record, I see little merit in isolating portions of the appellant's responses in order to highlight possible prevarication. The appellant's testimony must, as the Handbook instructs us, be read in context in its entirety with some allowance for the translation errors that certainly occurred in the appellant's answers and quite possibly in the translation of the Board questions. Viewed in this light, the appellant's testimony does not seem to be particularly equivocal. I cite a portion of the transcript: QNow, you stated that you signed the confirmation that you would undergo sterilization. Why did you sign that confirmation? ABecause I felt if I did not sign, I cannot accommodate their request. They can come every day, from the morning to night. Then psychologically, we cannot take that, and also they can go one step ahead, terminate me from my job, and also terminate my parents'. If it has to come to such a stage, that means we would not be able to live, so we sign ‑‑ I signed this document so to pass this difficulty. QDid you ever intend to abide by their request for sterilization? AI feel that whether one would like to take a sterilization is his own choice. Even though I'm not going to have a third child, it would not [be] absolutely necessary for me to take a sterilization operation. So I had never thought of going to have this kind of cruel operation.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-58", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 77", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "On my reading, the appellant stated that he signed the sterilization consent to end the continued psychological harassment and threats to his employment and that of his parents ‑‑ a significant peril to persons from cultures in which elders are revered. He then attempted to negate any inference that he actually intended to abide by the request to have the operation by stating that such an operation should be a matter of individual choice, that the operation was unnecessary as he was not going to have a third child in any event, and that despite signing the sterilization confirmation agreement, he never in fact considered submitting to an operation that he considered to be cruel. I fail to see how this testimony can serve as evidence of equivocation on the part of the appellant.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-59", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 78", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "In terms of what the appellant stated would happen to him if returned to China, he listed a series of possible sanctions including arrest, unemployment, and even murder. Given the considerable testimony the appellant had already given concerning the mounting pressure upon him to submit to sterilization that resulted in his ensuing flight from China, it is not really surprising that he did not again mention that he could be sterilized if returned to that country. I note that he did mention other possible punishments, one of which at least, without deciding the matter at this point, would be a fundamental infringement of basic human rights on the facts of this case itself. Further it is not unreasonable that the appellant would mention punishments other than sterilization if returned as his jeopardy would have substantially altered. If returned, he would not only be seen as a pro‑democracy sympathiser and violator of the population policy as before; he would also be regarded as a fraud for having falsely given consent to submit to surgery as well as bearing the ignominious and quite possibly dangerous distinction ‑‑ given China's overall human rights record as noted in the Country Report ‑‑ of being a forcibly returned exile. Put another way, it is not unimaginable that a refugee claimant might flee a country in fear of one form of persecution, only to find him- or herself forcibly returned and await punishment for another form of persecution reflective of both the original persecution and the added fact that the claimant had attempted to escape.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-60", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 79–80", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The fact that coercive sterilization is principally used against women in China is no argument that the appellant's fear of persecution was not well-founded. Numerous cases have considered claims by male refugees alleging fear of persecution by means of coerced sterilization in China; these include Matter of Chang, supra, Respondent A, supra, Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995); Shu‑Hao Zhao v. Schiltgen, 1995 WL 165562 (N.D.Cal.); A. (W.R.) (Re), [1989] C.R.D.D. No. 98 (No. T89-00483); K. (H.H.) (Re), [1991] C.R.D.D. No. 484 (No. V90-01187), and X. (D.K.) (Re), [1989] C.R.D.D. No. 293 (No. T89-0031). Even when Convention refugee status was not granted, it was not on the basis that coerced sterilization only applies to female population policy violators. Indeed, neither the parties nor the interveners based any argument on the basis that the policy applied only to women. All academic authorities I have consulted accept the fact that the policy applies, and is enforced, against both sexes.\n\nUpon review of the appellant's evidence in it's entirety, I find the fact that the appellant did not specifically invoke the term \"fear of persecution\" or equivalent words to that effect to be of no particular import. The appellant recounted descriptions of continued harassments both at home and at his place of employment, interrogations of employees and customers, threats and verbal abuse towards himself and his family members, the feeling of being compelled to sign both a confession of pro‑democracy sympathies and a sterilization confirmation form. This testimony, together with his ensuing exodus from China, directs a finding that sufficient evidence exists to find that the appellant had an implicit well-founded fear of persecution.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-61", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 81", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "I do not at this stage propose to deal at length with the second step of the inquiry, whether there are objective grounds for the appellant to fear forced sterilization. In this case, the generally known facts that I have previously set forth clearly establish these objective grounds. Thus, I reject Major J.'s conclusion that the appellant failed to adduce any evidence with respect to the objective basis of his fear of forced sterilization. This, too, is an issue that should be considered by the Board. That being so, I propose to consider the enumerated grounds which comprise the essential grounds of contention in the court below. Membership in a Particular Social Group", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-62", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 82", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Ward, supra, I set forth general guidelines intended to assist in the determination of whether a given refugee claimant could be said to fall within a particular social group. At page 739, I stated: The meaning assigned to \"particular social group\" in the Act should take into account the general underlying themes of the defence of human rights and anti‑discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, Cheung and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possible categories: (1) groups defined by an innate or unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence. The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti‑discrimination influences, in that one's past is an immutable part of the person. [Emphasis added.]", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-63", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 83–84", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "As I believed apparent at the time of that decision, only a working rule was enunciated in Ward, not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group. The \"general underlying themes of the defence of human rights and anti‑discrimination\" (p. 739) were to remain the paramount consideration in determining a claimant's membership in any particular social group. I note that the emphasis on this point was not lost on either the appellant or the respondent in this case.\n\nAs the appellant does not claim membership in either the first or the third category under the working rule, only the second category need be considered. The starting point for this inquiry, then, is to determine whether the appellant is voluntarily associated in a manner so fundamental to his human dignity that he should not be required to forsake it. In approaching this question, I find it necessary to offer further commentary on two particular passages of my reasons in Ward: the simplified distinction between what one does as opposed to what one fundamentally is, as well as what should properly constitute the object of a claimants' purported voluntary association.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-64", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 85", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Ward, I stated, at pp. 738-39: Surely there are some groups, the affiliation in which is not so important to the individual that it would be more appropriate to have the person dissociate him‑ or herself from it before Canada's responsibility should be engaged. Perhaps the most simplified way to draw the distinction is by opposing what one is against what one does, at a particular time. For example, one could consider the facts in Matter of Acosta [Interim Decision 2986, 1985 WL 56042 (B.I.A.)], in which the claimant was targeted because he was a member of a taxi driver cooperative. Assuming no issues of political opinion or the right to earn some basic living are involved, the claimant was targeted for what he was doing and not for what he was in an immutable or fundamental way. [Emphasis in original.]", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-65", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 86", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The distinction between what one fundamentally is as opposed to what one merely does offers, as was explained, the most simplified way of discerning when Canada's obligations to refugees should be able to be invoked. Such an inquiry only comes after a consideration of whether an issue exists concerning basic human rights has been undertaken. This simplified distinction was never intended to replace the Ward categories. It is still necessary under the second category to consider whether an association exists that is so fundamental to members' human dignity that they should not be required to forsake it. To apply this simplified distinction without proper consideration of the context in which it arose can lead to ludicrous results. Accepting that the appellant's own particular social group has yet to be yielded by my analysis up until this point of my reasons, I find it difficult to conceive that the associative qualities of having children may be considered so sufficiently analogous to the associative qualities of being a member of a taxi driver cooperative to warrant any meaningful comparison. Moreover, if the distinction was treated as a hurdle claimants are obliged to pass, behaviour fundamental to one's basic humanity, such as having children, could always be classified out of context as something one merely does rather than something one actually is. To pursue this example, however, surely it is nonsensical to find other than that one fundamentally is a parent. Parenting cannot be considered an activity that one merely does, as interchangeable as a particular occupation, without distorting the primary focus of refugee law: the assurance that basic human rights are not fundamentally violated without international recourse.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-66", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 87", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "A further issue calls for clarification. The majority of the court below rejected the appellant's claim that he was a member of a particular social group under the second working rule on the basis that there was no evidence of voluntary, active, association. Upon reflection, it is apparent that it may seem possible to conclude that for a refugee to fall within the parameters of the second Ward category, such claimant would have to establish some type of voluntary association with a specific group. In order to avoid any confusion on this point let me state incontrovertibly that a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself. Such a claimant is in no manner required to associate, ally, or consort voluntarily with kindred persons. Professor Audrey Macklin in \"Canada (Attorney‑General) v. Ward: A Review Essay\" (1994), 6 Int'l J. of Refugee L. 362, offers an analysis that returns the second Ward test to its proper inquiry. She states, at p. 375: In principle, an anti‑discrimination approach should look at the imposed social consequences of possessing certain attributes. After all, it hardly matters to a racist whether a person of colour sees himself or herself as united with other people of colour in a stable association to achieve common purposes. As long as perpetrators of persecution treat people with a shared attribute as comprising a group by virtue of that common characteristic, whether individuals so identified would choose to see themselves as united in any meaningful sense has little impact. The point can also be illustrated using students as a social group.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-67", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 87", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Assume that a Chinese student is persecuted by police in the wake of the Tianamen Square pro‑democracy, anti‑government demonstrations. The student may be entirely apolitical, have taken no part in the protest, and indeed have nothing to do with fellow students outside the classroom. The police may not even care whether the student shares the views of those who participated in the demonstrations. It is enough to be a student, and for students to have instigated the demonstrations. That student cannot be said to `voluntarily associate' with other members of the designated social group, but may be understood as being voluntarily associated with the status of student for reasons fundamental to human dignity. As Professor Macklin recognizes, the question that must be asked is whether the appellant is voluntarily associated with a particular status for reasons so fundamental to his human dignity that he should not be forced to forsake that association. The association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-68", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 88–90", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "I accept the respondent's categorization of the right asserted as the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children. This fundamental right has been recognized in international law in the International Covenant on Civil and Political Rights, December 19, 1966, Can. T.S. 1976 No. 47, Art. 23(2), the Convention on the Elimination of All Forms of Discrimination against Women, March 1, 1980, Can. T.S. 1982 No. 31, Art. 16(1)(e) (to both of which Canada and China adhere), and by the draft Programme of Action of the United Nations International Conference on Population and Development, Principle 8, at p. 9, and Chapter VII, para. 7.2, at p. 34. In my view, this association is so fundamental to the human dignity of the appellant that he should not be forced to forsake it.\n\nIn sum, I think that the majority of the Court of Appeal erred in its determination of the appellant's particular social group. Persons such as the appellant, if persecuted on the basis of having had more than one child, would be able to allege membership in a particular social group. Political Opinion\n\nThus far I have confined myself to the issue whether the appellant might properly be classified as a member of a particular social group. The possibility also exists that the appellant may have a well-founded fear of persecution on the basis of a political opinion held by or imputed to him. Given the Board's treatment of this issue, I find it necessary to make a few cursory remarks about it.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-69", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 91", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "While I understand that Ward had not been decided when the appellant's hearing took place, the Board may have erred in its consideration of the political opinion of the appellant by failing to adopt a holistic approach to the interpretation of the appellant's evidence. Specifically, the Board in its reasons only considered the appellant's evidence as to his harassment by PSB officers for his pro‑democracy activities in terms of determining whether the appellant was persecuted for his political opinion. The Board made note that no evidence had been adduced showing that the investigation of the appellant's pro‑democracy activities extended beyond April 1990. While the Board was correct that no such evidence was directly adduced, testimony was presented stating that by May 1990, PSB officers, together with neighbourhood committee members, began their harassment of the appellant and his family for having violated the birth control policy. I do not believe it would have been unreasonable for the Board to infer that, having accepted that the PSB conducted an investigation running from September 1989, until April 1990 concerning the degree and nature of the appellant's pro‑democracy activities, the immediately ensuing investigation by the PSB into the appellant's birth policy violation might have been causally linked. Of course, a refugee claimant in the position of the appellant cannot be expected to provide evidence that the two investigations were indeed related. The Board, though, should not, in its considerations, ignore such possibilities.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-70", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 91", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Given the proximity in time of two PSB investigations concerning an individual accepted by the Board as having suffered past persecution on the basis of his family status, who had confirmed to PSB officials that he was a pro‑democracy sympathizer, it does not seem improbable that the second investigation may have been a pretext to punish the appellant. This conclusion seems altogether possible considering that China is governed by an authoritarian regime scarcely tolerant of political dissent.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-71", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 92–93", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The UNHCR Handbook sets forth the approach a Refugee Board should follow on such matters. As mentioned, para. 201 instructs a Board to ascertain a wide range of circumstances and to take into account the cumulative effect of the applicant's experience as all the incidents related by the applicant, taken together, could make his fear \"well‑founded\". Following these sensible guidelines, it is quite possible that the Board drew an artificial distinction in considering PSB investigation of the appellant for his pro‑democracy activities separately from the rapidly ensuing harassment of the appellant for his violation of the population policy. Given that not all urban Han Chinese who have more than one child are required to be sterilized and that abuses of sterilization authority have been acknowledged by Chinese officials, I think there was a sufficient evidentiary basis for the Board to conclude that the PSB may have wished to force the appellant to endure this invasive surgery as a cumulative punishment for his sympathies and actions contrary to the government. The appellant's testimony that the PSB derided him as an \"enemy of the class\" and accused him of acting \"purposely against the government\" upon learning of the birth of his second child, can support a conclusion that, from the perspective of the local authorities, his violation of the population policy was linked to his known political stance.\n\nHaving concluded the matter of the appellant's political opinion in this manner I leave it for another case to resolve whether the action itself of having a child can constitute, in the words of Goodwin-Gill, supra, quoted in Ward, at p. 746, an \"opinion on any matter in which the machinery of state, government, and policy may be engaged\". The Decision in Cheung Determinative", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-72", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 94–97", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finally I should add a word about the treatment accorded by the majority of the Federal Court of Appeal to its own recent decision in Cheung. As I read them, I am unable to see any relevant distinction between that case and the present and the court should not have departed from its reasoning in Cheung, particularly in view of this Court's endorsement of that decision in Ward. I am aware that the Federal Court of Australia has recently followed Heald J.A.'s interpretation of Ward on that point; see Minister for Immigration and Ethnic Affairs v. Respondent A, supra, but for my part I find the reasons of Sackville J., the reviewing judge in that case, ((1994), 127 A.L.R. 383), more consistent with the reasoning in Ward as I have explained earlier. Disposition\n\nFor the foregoing reasons, I would allow the appeal with costs throughout. I would remit the case to the Refugee Board for hearing de novo in a manner consistent with these reasons. The judgment of Sopinka, Cory, Iacobucci and Major JJ. was delivered by Major J. -- I. Facts\n\nThe appellant is a university educated married man who held a managerial position in a manufacturing company and owned a restaurant business in the city of Guangzhou in the People's Republic of China (PRC). He fled to Hong Kong on July 19, 1990, and proceeded to Canada where he sought Convention refugee status based on his fear of persecution because of his political opinion and membership in a particular social group.\n\nIn his testimony before the Immigration and Refugee Board, the appellant alleged that during the Cultural Revolution his family was persecuted owing to his father's background as a landowner.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-73", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 98–99", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant operated a restaurant in Guangzhou. On June 5 and 6, 1989, students in the pro-democracy movement demonstrated outside his restaurant. Since the appellant was sympathetic to the political cause of the students, he donated food, drinks and 100 renminbi to them during those two days. Between July 1989 and April 1990, Public Security Bureau (PSB) officers visited the restaurant on 13 or more occasions. During these visits, they accused the appellant of having participated in the pro-democracy movement. They also interrogated both the staff and customers at the restaurant regarding the appellant and the students. After the second PSB visit in mid July 1989, the appellant voluntarily reported to the office of the PSB and wrote a confession of his pro-democracy activities.\n\nThe appellant alleged that in April 1990, the PSB discovered the birth of his second child (born in November 1989) and accused him of having violated the birth control policy of the country. PSB officers visited his home on five occasions concerning this violation. They demanded a monetary fine and the sterilization of either the appellant or his wife. His wife lost her job owing to this violation. After the last visit, the appellant voluntarily submitted a written undertaking to the PSB office that he would undergo sterilization within three months. Twenty days later, the appellant left the PRC on a false passport.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-74", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 100", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant testified that since his departure from the PRC, he had learned that his violation of the country's birth control policy has caused his family to suffer continued harassment in the form of PSB visitations to their home and that, on one occasion, his wife was detained overnight by the PSB. He also alleged that, should he return to the PRC, he might face arrest, imprisonment, long-term unemployment, or even murder. II. Legislation Immigration Act, R.S.C., 1985, c. I-2 (rep. & sub. c. 28 (4th Supp.), s. 1) 2. (1) In this Act, \"Convention refugee\" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; III. Judicial History A. Immigration and Refugee Board (Refugee Division) October 23, 1991 (1) Family Background", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-75", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 101–103", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "On the appellant's claim that he feared persecution as a result of his family background, the Board held: This panel accepts that the various members of the claimant's family, including the claimant, have suffered persecution during the Cultural Revolution due to their family background. However, no evidence was adduced to suggest that the claimant was persecuted beyond the period of the Cultural Revolution. Furthermore, he was able to subsequently obtain a university education and several managerial positions. According to all the above, this panel does not find the claimant to have good grounds for fearing persecution based on his membership in a particular social group, namely, his family background. (2) Political Opinion\n\nWith respect to the appellant's alleged fear of persecution by reason of his participation in pro-democracy activities, the Board noted that the PSB had made no attempt to arrest the appellant after he had voluntarily confessed his activities to the PSB although they had ample opportunity to do so.\n\nThe Board found no evidence to suggest that the investigation into the appellant's involvement with the pro-democracy movement continued beyond April 1990 and noted that five months after his departure from the PRC in July 1990, he had been able to renew his driver's licence. The Board held: Based on the evidence, this panel does not find the claimant to have good grounds for fearing persecution by reason of his political opinion as manifested through his pro-democracy activities. (3) Sterilization Not Persecution", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-76", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 104–106", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "With regard to the appellant's alleged fear of persecution by reason of forced sterilization, the Board held: The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the [Chinese] government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant's fear of persecution in the form of a forced sterilization to be well-founded. The Board concluded that the appellant was not a Convention refugee. B. Federal Court of Appeal, [1993] 3 F.C. 675\n\nThe appellant appealed only on the issue of forced sterilization. The three members of the Federal Court of Appeal dismissed the appeal with one justice dissenting. (1) Heald J.A.\n\nHeald J.A., in dismissing the appeal, noted at p. 686 that the Federal Court of Appeal concluded in Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), at p. 322, that \"forced or strongly coerced sterilization\" of a woman constituted persecution since it violates her security of the person and subjects her to cruel, inhuman and degrading treatment. He held that the sterilization of a man is not qualitatively different from that of a woman and therefore is persecution pursuant to Cheung.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-77", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 107–109", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Heald J.A. noted, however, that not all breaches of the one-child policy would result in forced sterilization. Forced sterilization is not a law of general application but an enforcement measure taken by only some local authorities. Other local authorities use acceptable sanctions such as economic ones. Therefore, the determination of whether a person with more than one child has a well-founded fear of persecution is a finding of fact which depends upon the evidence in respect of the practices of the relevant local authority.\n\nOn a review of the evidence, Heald J.A. held that the appellant had not established a well-founded fear of sterilization. This case differs from Cheung in that the Board did not find that the appellant faced a reasonable chance of forced sterilization if returned to China. The appellant and his family faced the imposition of economic sanctions which are not sufficient to establish persecution.\n\nAlthough he held that the appellant had not established a well-founded fear of sterilization, Heald J.A. proceeded to discuss whether the appellant could be considered to be a member of a \"particular social group\" in light of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, which was decided by this Court subsequent to the decision in Cheung.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-78", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 110", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Heald J.A. held at p. 691 that, a social group defined as \"parents in China with more than one child who disagree with forced sterilization\" does not fall within any of the three categories of particular social group outlined in Ward. He emphasized at p. 690 the principle enunciated in Ward that fear must emanate from what the claimant is or was \"in an immutable or fundamental way\", and not what he or she does or did. He observed at p. 691 that \"the distinction between parents who have and have not breached the one-child policy derives from what the individuals have done...and not from what the individuals are\" (emphasis in original). He also noted that the group does not belong in the category of those who voluntarily associate for reasons fundamental to human dignity because there was no evidence of voluntary active association within the group. Heald J.A. added that the group proposed by the appellant was defined solely by the fact that its members face a particular form of persecutory treatment. He said, at p. 693, that a definition of this kind \"voids the enumerated grounds of content\" and conflicts with the rejection in Ward of groups defined \"merely by virtue of their common victimization as the objects of persecution\". Therefore, Heald J.A. concluded that the appellant had not established persecution by reason of membership in a particular social group.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-79", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 111", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Heald J.A. also rejected the appellant's argument that a failure by a citizen to agree to sterilization was tantamount to a political statement. He held that the persecutory treatment did not emanate from a refusal to submit to sterilization but from a breach of the one-child policy. He found there was no evidence the Chinese authorities believed acceptance of the one-child policy was integral to their authority. He stated that the one-child policy is within the jurisdiction of the Chinese government and cannot, in itself, be characterized as persecutory. Sanctions imposed for breach of the policy must be accepted, and despite their abhorrence, cannot serve as a basis for persecution by reason of political opinion. Therefore he concluded that the appellant does not face a well-founded fear of persecution by reason of his political opinion. (2) Desjardins J.A.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-80", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 112–113", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Desjardins J.A. also dismissed the appeal but on slightly different grounds. She considered whether the appellant was a member of a particular social group in light of the legal principles set out in Ward. She found at p. 716 that since there was no voluntary status present in this case, the only category from Ward into which the appellant might fall would be a group defined by \"an innate or unchangeable characteristic\". Desjardins J.A. held that the innate and unchangeable characteristic must be so strong that it makes a group of individuals what they are and that it must exist independently of a basic human right which they fight for. She found that forced sterilization stands in violation of a basic human right but that this right is common to all humanity and not unique to any social group to which the appellant may have belonged. The appellant was targeted for what he did and not for what he is and therefore was not a member of a particular social group.\n\nDesjardins J.A. then examined whether there was any basis for a claim on the ground of political opinion, as defined by this Court in Ward. She found that there was no specific evidence to suggest that the appellant's action, motivated in defence of his basic human rights, was viewed by the Chinese local authorities as a gesture of defiance to the national authority. Furthermore, she concluded that forced sterilization under the one-child policy fell beyond the scope of \"persecution\" under the Convention. She held that the Convention does not cover violations of human rights imposed by local authorities in pursuit of a legitimate state objective such as population control. (3) Mahoney J.A. (dissenting)", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-81", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 114–115", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Mahoney J.A., in dissent, would have allowed the appeal. He stated at p. 704 that Cheung stood for the proposition that \"involuntary sterilization -- physical abuse that is an irreversible and serious intrusion on the basic rights of the individual -- is persecution\". He noted that the Board neither made nor implied any adverse finding as to the credibility of any of the evidence presented by the appellant. He concluded that on the evidence, the appellant's fear of forced sterilization, were he to return to China, was subjectively and objectively well-founded.\n\nMahoney J.A. held that this case is not distinguishable from Cheung and that nothing in Ward casts any doubt on the correctness of Cheung. He stated that formal association is not necessary to fall within the ambit of a group whose members voluntarily associate for reasons fundamental to their human dignity. He held that it is the shared reason fundamental to human dignity that defines and constitutes the group and that a conscious act of association is not an essential element. IV. Issues 1.Is forced sterilization a form of \"persecution\" within the meaning of s. 2(1)(a) of the Immigration Act? 2.Are persons who face forced sterilization members of a \"particular social group\"? 3.Are persons who refuse forced sterilization expressing a \"political opinion\"? 4.Assuming persons who have a well-founded fear of sterilization for violating China's one-child policy are eligible to be considered Convention refugees, does the appellant in this case have a well-founded fear of forced sterilization or of other persecution so as to be granted Convention refugee status? V. Analysis", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-82", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 116–117", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The central issue in this appeal is whether the appellant can be classified as a Convention refugee. The definition of \"Convention refugee\" in s. 2(1) of the Immigration Act, requires that an applicant for refugee status have \"a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion\". In this case, forced sterilization is the form of persecution to which the appellant claims he will be subjected if he returns to the PRC. The appellant argued that forced sterilization constitutes persecution for the purposes of the definition of Convention refugee and that this persecution is for reasons of either his membership in a particular social group or his political opinion, as expressed by breaching the one-child policy.\n\nThe appellant placed particular reliance on the Federal Court of Appeal's recent decision in Cheung which held a Chinese woman with a well-founded fear of sterilization qualified as a Convention refugee. In Cheung the claimant was forced to discontinue use of an intra-uterine device for medical reasons and underwent numerous abortions. After the birth of her second child, the Family Planning Bureau came to her home and took her to the hospital to be sterilized. The sterilization operation was postponed for six months because of an infection and before that six-month period had expired, Ms. Cheung fled from the PRC. Linden J.A. noted in his reasons (at p. 318): It was accepted by the Board that the appellant would be sterilized if she were forced to return to China.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-83", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 118", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Cheung a distinction was made between women who have more than one child and have a well-founded fear of forced sterilization and those who have more than one child but do not have this fear. This distinction must be made in light of the fact, which was relied upon in Cheung, that forced sterilization is not a law of general application but rather an enforcement measure used by some local authorities with, at most, the tacit acceptance of the central government. Thus, the reasonableness of a fear of persecution depends, inter alia, on the practices of the relevant local authority.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-84", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 119", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "For the purpose of this appeal I am assuming (without deciding) that Cheung was rightly decided and that the appellant is a member of a particular social group within the meaning of s. 2(1). However, the appellant cannot attempt to rely upon the Cheung decision unless he has established that he has a well-founded fear of sterilization. The test for establishing a fear of persecution was clearly stated by La Forest J. in Ward, at p. 723: More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen [(1984), 55 N.R. 129 (F.C.A.)], at p. 134: The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear. The test set out by La Forest J. in Ward is consistent with the approach recommended in the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979). That document, which, although not binding, has been accepted as being highly persuasive authority in Canada, explains a \"well founded fear of being persecuted\" as follows: 38. To the element of fear -- a state of mind and a subjective condition -- is added the qualification \"well-founded\". This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-85", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 119–121", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The term \"well-founded fear\" therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration.\n\nBoth the existence of the subjective fear and the fact that the fear is objectively well-founded must be established on a balance of probabilities. In the specific context of refugee determination, it has been established by the Federal Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, that the claimant need not prove that persecution would be more likely than not in order to meet the objective portion of the test. The claimant must establish, however, that there is more than a \"mere possibility\" of persecution. The applicable test has been expressed as a \"reasonable possibility\" or, more appropriately in my view, as a \"serious possibility\". See: R. v. Secretary of State for the Home Department, ex parte Sivakumaran, [1988] 1 All E.R. 193 (H.L.).\n\nIn this case, the Board made no finding as to whether the appellant had either a subjectively or an objectively well-founded fear that he would be subjected to forced sterilization if he returned to China. This case is thus immediately distinguishable from Cheung where the Board at first instance made a clear finding that the claimant would face forced sterilization if returned to China.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-86", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 122–123", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant first raised the issue of forced sterilization in his Personal Information Form. At his hearing, the Board specifically requested the appellant's counsel to focus on this aspect of his claim and provided the appellant with ample opportunity to establish that he had a well-founded fear: PRESIDING MEMBER: On reviewing the Personal Information Form, the Panel would like you to focus on ... the portions pertaining to his fear of persecution caused by the alleged forced sterilization.\n\nAs is common in refugee determination proceedings, the appellant did not testify in English but rather testified in Cantonese through an interpreter. The task of the interpreter in a judicial or quasi-judicial hearing is an extremely difficult one and it is hardly surprising that simultaneous translation can sometimes lead to minor infelicities of style. However, the Board (and this Court when reviewing the written record) is well equipped to look past grammatical errors and to grasp the general import of a claimant's testimony, particularly when that testimony is considered as a whole. This is a fundamental part of the sympathetic approach to the evidence which is advocated in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-87", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 124", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is the responsibility of the Presiding Member of the Board to ensure that the interpretation provided to the Board and which is reflected in the written record is as accurate as possible in the circumstances. The primary problem in this regard is when a claimant speaks too quickly or for too long to allow the interpreter to interpret all of the information accurately. In this case, the accuracy of the record is substantially assisted by the fact that the Presiding Member made every effort to ensure that the interpreter was able to interpret the claimant's testimony in a complete and thorough fashion. The efforts of the Presiding Member are apparent on the record early in the portion of the hearing dealing with sterilization at a point when the claimant was describing the one-child policy rather than his personal experience: QAnd you state that they said that you had disobeyed the birth control policy. What is the birth control policy in China? AThe birth policy in China was one-child-per-family. Because I am the only son in the family, I myself would like to have more children. Q You say that everybody -- PRESIDING MEMBER: Excuse me. Mr. Lau, I believe the Claimant has said a little bit more than what you've interpreted. He mentioned something pertaining to the interval between the children? Perhaps instead of your trying to remember, if I may ask the Claimant. Mr. Chan, did you mention in your last statement something pertaining to the interval between the two children? CLAIMANT: Yes. PRESIDING MEMBER: Just before you start, Mr. Lau, it's not a reflection on your part. The Claimant did go on for very long, and I didn't stop him. (CLAIMANT SPEAKS IN CANTONESE) PRESIDING MEMBER: Okay, stop there. You have to make your sentences shorter so that Mr.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-88", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 124–125", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Lau can interpret fully. As can be seen from this portion of the transcript, Ms. Nee, the Presiding Member understood Cantonese and thus was able to identify specifically the portion of the appellant's testimony which the interpreter had missed. Assigning Board members to refugee determination hearings who understand the claimant's native language and who are thus able to confirm the accuracy of the record independently is a practice to be strongly encouraged.\n\nThe appellant's oral testimony before the Board was generally consistent with his Personal Information Form statement. He testified that his second son was born in November 1989 and that the Public Security Bureau became aware of the child while conducting a routine census between April and June 1990. The appellant complied with the PSB's demand that he register the child at the police station. On two subsequent occasions the PSB attended at the appellant's home in his absence and allegedly demanded that the appellant and his wife pay a fine of 8,000 dollars and that one of them submit to sterilization: During the second and the third visit, they demand for a penalty for 8,000 dollars, and also either I or my wife should get a sterilization. The second and the third visit, at that time I was not at home. I was told by my wife when I got home. The first time happened in the late of May. They want to find out who is going to accept the sterilization. If nobody was willing, then [we] would be forcibly taken to the -- to get the sterilization.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-89", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 126–127", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant stated that the PSB visited his home two further times and requested that either the appellant or his wife sign a document consenting to sterilization. After the fifth visit, the appellant complied with the request to sign the consent form: After three days after the fifth visit, I went to the police station and hand in the document saying that I would be willing to take the sterilization operation within three months, and 20 days after that, I left China.\n\nThe appellant testified that he and his family decided that he should give his written consent to sterilization in order to put an end to psychological harassment caused by frequent visits by the PSB and possible financial coercion: QNow, you stated that you signed the confirmation that you would undergo sterilization. Why did you sign that confirmation? ABecause I felt if I did not sign, I cannot accommodate their request. They can come every day, from the morning to night. Then psychologically, we cannot take that, and also they can go one step ahead, terminate me from my job, and also terminate my parents'. If it has to come to such a stage, that means we would not be able to live, so we sign -- I signed this document so to pass this difficulty. The appellant also gave evidence that his wife's employment was terminated because of this breach of the one-child policy.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-90", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 128–129", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant's statement in his Personal Information Form and his oral testimony is some evidence that he had a subjective fear of forced sterilization. However, a refugee claimant cannot establish a well-founded fear of persecution simply by alleging the existence of that fear. In order to meet the subjective aspect of the test for a well-founded fear of persecution, the claimant must establish to the satisfaction of the Board that the alleged fear exists in the mind of the claimant. Normally, where the claimant is found to be a credible witness and his or her testimony is consistent, the claimant's evidence will be sufficient to meet the subjective aspect of the test.\n\nIn this case, the appellant's testimony, even with respect to his own fear of forced sterilization, is equivocal and inconsistent at times. In response to a question by his counsel, the appellant testified that he did not intend to abide by the PSB request for sterilization: QDid you ever intend to abide by their request for sterilization? AI feel that whether one would like to take a sterilization is his own choice. Even though I'm not going to have a third child, it would not [be] absolutely necessary for me to take a sterilization operation. So I had never thought of going to have this kind of cruel operation.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-91", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 130–132", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "As well, when asked specifically what would happen if he were to return to China, the appellant made no mention of forced sterilization: QWhat do you think would happen if you were to return to China? AIf I going back to China, the most possible thing would be arrest, put in jail. Could also be unemployed for the rest of my whole life, and could not earn a living. If talking something more serious, then I probably will be murdered. QWhy do you feel that this would happen to you if you were to return? A... Regarding my second child, it is a fact that that has affect the bonus of some of the neighbourhood committee members. They would be hostile and would try to revenge. They would take the excuse of my difference in political view, and arrest me and put me in jail.\n\nIt is worth noting that the Board found that the oral testimony of the appellant was insufficient to establish his principal claim of persecution when it found that the appellant was not persecuted on the basis of his political pro-democracy opinion. This finding was not appealed.\n\nIn my opinion, the evidence of the appellant with respect to his subjective fear of forced sterilization is equivocal at best. However, in the absence of an explicit finding by the Board on this point, it would not be appropriate for this Court to determine that the appellant did not have a subjective fear of forced sterilization.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-92", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 133–135", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Nevertheless, even if the appellant is given the benefit of the doubt on the question of a subjective fear, the existence of a subjective fear of persecutory treatment is not sufficient to meet the statutory definition of a Convention refugee. It is the responsibility of the claimant at a refugee determination hearing to lay an evidentiary foundation upon which the Board can conclude not only that the fear existed in the mind of the claimant but also that it was objectively well-founded.\n\nThe objective component of the test requires an examination of the \"objective situation\" and the relevant factors include the conditions in the applicant's country of origin and the laws in that country together with the manner in which they are applied: see UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paras. 42 and 43.\n\nThe appellant did not meet the burden of proof on the objective aspect of the test. Specifically, he failed to adduce any evidence that his alleged fear of forced sterilization was objectively well-founded.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-93", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 136", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The documentary evidence with respect to China's population control policy which was presented by the appellant to the Board included the February, 1991, Country Reports on Human Rights Practices for 1990 of the U.S. State Department. This document describes the various enforcement measures which are used in connection with the one-child policy. This document makes it clear that the methods of enforcement are within the control of local authorities and vary widely from one area to another (at pp. 852-53): China's population control policy relies on education, propaganda, and economic incentives, as well as more coercive measures, including psychological pressure and severe economic penalties. Rewards for couples who adhere to the policy include monthly stipends and preferential medical, food, and educational benefits. Disciplinary measures against those who violate the policy often include stiff fines, withholding of social services, demotion, and other administrative punishments. In at least a few cases, people have been fired from their jobs (a very serious penalty in China, affecting housing, pension, and other social benefits) for refusing to terminate unauthorized pregnancies. Physical compulsion to submit to abortion or sterilization is not authorized, but continues to occur as officials strive to meet population targets. Reports of forced abortions and sterilizations continue, though well below the levels of the early 1980's. While recognizing that abuses occur, officials maintain that China does not condone forced abortion or sterilization, and that abuses by local officials are punished. They admit, however, that punishment is rare and have yet to provide documentation of any punishments.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-94", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 136", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Enforcement of the family planning policy has been inconsistent and varies widely from place to place and from year to year. The 1990 census data indicate that the average number of children per family (2.3) and the population growth rate (1.5 percent) remain significantly higher than would be produced by successful enforcement of official policy. In many areas, couples apparently are able to have several children without incurring any penalty, while in other areas enforcement has been more stringent. Local officials have great discretion in how, and how strictly, the policy is implemented. Because penalties for excess births can be levied against local officials and the women's work units, many individuals are personally affected, providing an additional potential source of pressure. [Emphasis added.]", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-95", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 137", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellant failed to adduce any evidence for the Board that forced sterilization is actually carried out and not merely threatened by the local authorities in his area. Evidence with respect to the enforcement procedures utilized within a claimant's particular region at the relevant time should be presented to the Board. Where such evidence is not available in documentary form, the claimant may still be able to establish that the fear was objectively well-founded by providing testimony with respect to similarly situated individuals. This liberal approach to establishing the facts which represents a significant relaxation of the usual rules of evidence is intended to grant the claimant the benefit of the doubt in cases where strict documentary evidence may be lacking. This approach is fully consistent with the guidelines set out in the UNHCR Handbook: 43. These considerations need not necessarily be based on the applicant's own personal experience. What, for example, happened to his friends and relatives and other members of the same racial or social group may well show that his fear that sooner or later he also will become a victim of persecution is well-founded. The laws of the country of origin, and particularly the manner in which they are applied, will be relevant. The situation of each person must, however, be assessed on its own merits. In this case, the appellant failed to provide either documentary evidence or anecdotal evidence to substantiate his claim that the pressure from the Chinese authorities to submit to sterilization would extend beyond psychological and financial pressure to actual physical coercion.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-96", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 138–139", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "Additionally, the appellant did not produce any evidence to establish that the forced sterilization used by some local authorities in China is inflicted upon men by the local authorities in his area, Guangzhou. In fact, the documentary evidence produced by the appellant strongly suggests that physically coercive penalties for breach of the one-child policy apply principally if not solely against women. In one document which the appellant filed with the Board entitled Slaughter of the Innocents: Coercive Birth Control in China, written by John S. Aird, the author quotes, at p. 71, a portion of the family planning regulations adopted by the Tianhe District in Guangzhou as of January 1, 1987. These regulations make it clear that it is women who are subjected to physical coercion for breach of the one-child policy: [A]ny woman who does not have an intrauterine device inserted within four months after giving birth shall be fined 20 yuan per month until she accepts the device. If a woman is allowed two children under the law and does not accept an intrauterine device after the birth of the second child, she must be sterilized. Before that measure is taken, she will be fined 50 yuan per month ... If a woman who has one child fails at birth control, the pregnancy must be terminated and the woman sterilized.\n\nIn this regard it is notable that the passage from the Country Reports quoted above states that penalties for excess births are levied against women's work units. In this case the appellant testified that his wife had lost her job as a result of the breach of the one-child policy, but his Personal Information Form reveals that he maintained his own job as a Manager in the Hung Cheong Works & Trading Company in Guangzhou until the time of his departure from China.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-97", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 140", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The other evidence provided by the appellant also failed to support an objectively well-founded fear of forced sterilization. At the time of the hearing in October 1991, more than a year after the appellant had signed the form confirming that he would agree to be sterilized in place of his wife within three months, no action had been taken to compel the sterilization of the appellant's wife. In fact, at the time of the hearing even the fine of 8,000 dollars had not been paid and the local authorities had apparently accepted a reduction in the amount of the fine in recognition of the fact that the wife was now unemployed: QThe 8,000 dollars that the Public Security wanted you to pay, did you ever pay that? AUntil I left China, it wasn't paid. They said -- they said under the condition situation, we don't have that money, they would take a reduction. QAnd how much was the reduction? AReduced to 4,800. My wife was dragging and not paying this penalty. Because of that, my child was not allowed officially entered into the record, so recently I have -- I have consulted with my wife, and the money probably will be paid. Furthermore, the appellant's family successfully renewed his driver's licence in December 1990, some five months after he had left the country. As was noted by the Board with respect to the appellant's separate claim for refugee status on the grounds of pro-democracy political opinion, the renewal of his driver's licence is not consistent with his claim of state imposed persecution.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-98", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "para 141", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The renewal of the driver's licence is inconsistent with the appellant's assertion that the Chinese authorities would have resorted to physical compulsion to sterilize him. The available evidence with respect to the pressure applied by Chinese authorities to submit to sterilization suggests that the modus operandi was rather to apply financial and regulatory pressure. The 1987 regulations from the appellant's city of Guangzhou, as quoted in the materials provided to the Board by the appellant (Slaughter of the Innocents: Coercive Birth Control in China, supra, at pp. 71-72) provide that: If an unauthorized baby is the second, third, or subsequent child in a family and sterilization has not been accepted, the family will be denied permission to build a dwelling, their water and electricity will be cut off (or their water and electric rates will be increased five to ten times, depending on the type of residence), grain coupons will not be issued, [and] driver's licenses and private business licenses will be revoked. All these sanctions will end when the sterilization procedure is performed. (The above sanctions apply to all those listed in the family registration book.) [Emphasis added.] It is unknown what effect the discovery of the birth of his second child would have had on the private business licence which the appellant held for his privately owned seafood restaurant. According to the appellant's testimony, the appellant sold the restaurant in order to raise money to come to Canada in April 1990, before his second child was discovered by the PSB. The Board, and this Court, can rely only on the reasonable deductions which can be drawn from the available evidence, which in this case involves the driver's licence.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-99", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 142–143", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "My colleague, La Forest J. argues that no conclusions can be drawn from individual items of evidence and that on each item the appellant should be given the benefit of the doubt, often by considering hypotheticals which could support the appellant's claim. This approach handicaps a refugee determination Board from performing its task of drawing reasonable conclusions on the basis of the evidence which is presented. This approach is also fundamentally incompatible with the concept of \"benefit of the doubt\" as it is expounded in the UNHCR Handbook: 204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. [Emphasis added.]\n\nAll the available evidence shows that the Chinese authorities attempt to persuade couples with more than one child to submit to sterilization by psychological, social and financial pressure, including heavy fines. The primary agent of enforcement is the woman's work unit but such measures can include other family members specifically in the case of government controlled licences such as driver's licences. The generally known facts also suggest that some, but not all, local authorities exceed these measures and resort to physical compulsion primarily against women.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-100", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 144–145", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case, the appellant's testimony shows that psychological pressure was applied by frequent visits by the PSB and that financial pressure was applied by means of a heavy fine and termination of his wife's work permit. The appellant's testimony is that he gave written consent to sterilization within three months in order to avoid further psychological or financial pressure. Subsequent to the expiry of the three-month period, the evidence shows that the authorities took no steps to force the sterilization of the appellant's wife, that they significantly reduced the fine and that they renewed the appellant's driver's licence.\n\nAll of these facts, particularly when taken collectively, run directly counter to all the available evidence as to the behaviour to be expected of the authorities if their intention was to coerce the appellant physically to be sterilized. The available evidence establishes that Chinese authorities intent on physical coercion in contravention of \"official\" government policy would first exhaust all other means of coercion. Since the appellant's claim that he would be physically coerced into sterilization runs contrary to the available evidence and generally known facts it is not an appropriate instance in which to apply the benefit of the doubt in order to establish the appellant's case. The appellant's evidence is more consistent with the appellant's later comment that the major concern of the local officials was the loss of their bonus owing to the breach of the one-child policy, a concern which presumably would have been substantially alleviated by the payment of the stiff fine imposed by those authorities.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-101", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 146–147", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "I am also unable to accept the conclusion of La Forest J. that the treatment of the appellant with respect to his second child was harsher because of his political opinions expressed by his giving food to pro-democracy demonstrators. There is no suggestion in the appellant's evidence that he considered the visits to his restaurant and the enforcement of the one-child policy to be related. Nor does the evidence suggest that the appellant was treated unusually harshly under the policy: as was noted above, he retained his managerial position and the fine imposed on him was significantly reduced to reflect the loss in earnings of his wife who did lose her job.\n\nOf greater concern, however, is the fact that no appeal was ever taken from the Board's finding that the appellant did not face persecution for his pro-democracy political opinion. Thus, the Board's decision on the question of persecution in relation to the appellant's pro-democracy political opinion is final. This Court should not seek to overturn the Board's determination by introducing new factors at this level into an issue which was finally determined at the Board level and not appealed. Furthermore, the appellant did not raise the possibility that he might face forced sterilization for his pro-democracy political opinion either at the Board level or at any level on appeal. It is not open to this Court to decide the appellant's case on the basis of an issue on which leave to appeal was not granted. No argument was heard by the Court on this issue and no reliance was placed on it by the appellant himself.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-102", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 148–149", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "The only issue raised in this appeal which involved political opinion was whether the action of having a child in contravention of China's one-child policy was an action which was sufficiently expressive of a political opinion to independently found a refugee claim. Given my finding that the appellant did not establish a well-founded fear of persecution, I do not find it necessary to deal with this issue.\n\nIn light of the fact that not all persons who have breached the one-child policy in China face a reasonable chance of forced sterilization, the appellant must establish a well-founded fear of forced sterilization before he can attempt to rely on the decision in Cheung. The appellant failed to adduce any evidence to establish on a balance of probabilities that his alleged fear of forced sterilization was objectively well-founded. On the basis of the oral testimony and documentary evidence presented by the appellant, forced sterilization remains no more than a \"mere possibility\" for the appellant. In the absence of that evidence, the Board was unable to determine that the appellant has a well-founded fear of persecution in the form of a forced sterilization.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1299-103", - "doc_type": "caselaw", - "act_code": "[1995] 3 SCR 593", - "act_short": "Chan", - "act_name": "Chan v. Canada (Minister of Employment and Immigration)", - "section": "", - "citation": "Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593", - "marginal_note": "paras 150–151", - "heading": "Refugee protection; membership in a particular social group and a well-founded fear of persecution", - "part": "Supreme Court of Canada", - "division": "", - "text": "This conclusion is decisive of the appeal as the appellant has failed to establish on the evidence presented an essential component of the definition of Convention refugee. In the absence of the appellant's meeting the burden of establishing a proper fact foundation on a balance of probabilities, appellate courts are handicapped in attempting to determine legal issues not grounded on the facts and should not attempt to do so. Therefore, the question of whether Cheung should be followed in light of the decision of this Court in Ward should await a case in which the necessary facts have been established in the refugee determination hearing.\n\nThe appellant failed to present any evidence with respect to a crucial element of his claim. There was, therefore, no legal basis upon which the Board could accept him as a convention refugee. The appeal must, therefore, be dismissed. Appeal dismissed, La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting.", - "current_to": "1995-10-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1299/index.do" - }, - { - "id": "scc-1425-1", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 1–4", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Sopinka J. (dissenting) -- I agree with the conclusion reached by Justice Major and with his reasons. In my opinion, however, even if, as found by the Court of Appeal and Justice Gonthier, the trial judge erred in excluding the evidence produced by the search of the appellants’ vehicle, the appeal must be allowed.\n\nIn my opinion, the Crown and the majority of the Court of Appeal have misapprehended the obligation of the Crown in an appeal from acquittal based on an error of law at trial.\n\nIn an appeal from an acquittal at trial based on an error of law, the Crown has the duty of satisfying the court that the verdict would not necessarily have been the same if the error had not occurred (Vézeau v. The Queen, [1977] 2 S.C.R. 277). In R. v. Morin, [1988] 2 S.C.R. 345, at p. 374, this Court held that “the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty”.\n\nIn order to satisfy this burden, the Crown must show that either the excluded evidence or the excluded evidence together with other evidence could reasonably result in a conviction. The court must be persuaded of this to a reasonable degree of certainty.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-2", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "para 5", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this appeal, we have the evidence of the search and no other evidence in the record. What transpired at trial, after the ruling excluding the evidence of the search, is summarized in the following extracts from the trial transcript: MR. JOHNSON: . . . At this time I would simply advise the Court that we -- if -- if your decision had been different on your interlocutory judgement or if we had otherwise proceeded with the matter, it would have been my intention to have some more viva voce evidence from Corporal Ed Paquet who was giving evidence at the time we concluded the matter in October and adjourned. It was also my intention to call evidence from Constable Joseph Oliver and it was also my intention to call evidence from Mr. Gary Von Ritchter, who is -- COURT: Well nobody -- MR. JOHNSON: An employee of the -- COURT: Nobody is stopping you from doing that. MR. JOHNSON: No well I say it was my intention to call those two -- or those three, Mr. Von Ritchter being the third from the New Brunswick Liquor Corporation. But in the -- light of your decision, I believe it would -- COURT: Their -- their evidence, if -- if it -- MR. JOHNSON: Be futile to -- COURT: Constable Ward’s evidence is the main evidence. If I am correct, then the Crown’s rights of detention rise or fall on Constable Ward’s testimony. The other testimony would be collateral and really not -- not material to -- to any court coming to a decision on it I don’t think. If I’m wrong of course the other -- the other evidence may be of great help but -- MR. JOHNSON: Well in light of the ruling that you have made, Your Honour, what I have as Crown counsel agreed to do at this point is to terminate our case and not call further evidence for the Crown.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-3", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 6–7", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The evidence of the search alone is insufficient to discharge this burden. While Gonthier J. finds that it meets the standard set by the Customs Act , R.S.C., 1985, c. 1 (2nd Supp .), to authorize a search, this is a very low standard. As Gonthier J. states (at para. 14): Parliament has used language which requires the officer neither to believe on reasonable grounds that there is a possibility of smuggling nor to suspect on reasonable grounds that smuggling is, in fact, taking place. A reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices. [Emphasis added.] This hardly enables the Court to conclude with a reasonable degree of certainty that based on this evidence the verdict might well result in a conviction.\n\nApparently, the Court of Appeal did not think so but seemed to be of the view that this was not of concern to them but a matter for the new trial. After referring to s. 11(1), the Chief Justice of New Brunswick states ((1995), 157 N.B.R. (2d) 195, at pp. 208-9): It is my view that this section does not oblige a person to enter Canada only at manned or open border crossings. If that had been Parliament’s intention, it could have been expressed in such terms. Rather, s. 11(1) obliges every person arriving in Canada, with some exceptions that have no application here, to “forthwith present himself at the nearest customs office designated for that purpose that is open for business”. Mr. Jacques and Ms. Mitchell did not have an opportunity to go to the “nearest” open customs office before they were apprehended by Cst. Ward. While this may become relevant in a new trial, it does not determine the issues in this appeal . . . . [Emphasis added.]", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-4", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 8–9", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Counsel for the Crown in this Court was of the same view. When asked how, in the circumstances, the Crown expected to meet the standard, counsel replied: That is a matter to be determined at the new trial where all the evidence will be heard by a trier of fact. As observed by the Chief Justice of New Brunswick, the evidence of the search itself could not result in a conviction. The appellants were stopped just minutes after they crossed the border. As there were no customs offices on Brown Road, it would have been impossible for the appellants to have reported to a customs office before they were stopped by Constable Ward. As a result, apart from the evidence of the search, we have nothing to indicate what the evidence is that the Crown could adduce at a new trial other than the names of several witnesses. The Crown has therefore failed to discharge its duty as required by Vézeau.\n\nThis requirement is quite separate from and unaffected by what was said in R. v. Power, [1994] 1 S.C.R. 601, to which my colleague Gonthier J. makes reference. Quite apart from the Crown’s obligation arising from Vézeau, if the Crown shuts down its case in order to test an adverse ruling by the trial judge, it may be precluded from appealing if such conduct amounts to an abuse of process. In these circumstances, the Crown is disqualified from appealing. This does not mean, however, that if the Crown does not adduce evidence but no abuse of process is made out, the Crown is relieved of its obligation under Vézeau. Accordingly, it is insufficient for my colleague Gonthier J. to dispose of this point on the basis that there was no abuse of process. It is necessary to explain how the Crown has discharged its duty under Vézeau.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-5", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 10–13", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Since writing the above, Gonthier J. has amended his reasons to deal with the application of Vézeau. I can find no evidence in the record that together with the excluded evidence could reasonably result in a conviction.\n\nI would dispose of the appeal as proposed by Major J. //Gonthier J.// The judgment of Gonthier, Cory and Iacobucci JJ. was delivered by\n\nGonthier J. -- I have had the benefit of reading the reasons of my brother, Justice Major, but I am unable to agree with him that Constable Ward, the RCMP officer who stopped the appellants, lacked reasonable grounds to do so under the Customs Act , R.S.C., 1985, c. 1 (2nd Supp .), and that they were therefore arbitrarily detained and subjected to an unreasonable search and seizure in contravention of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms . It follows that I would dismiss the appeal.\n\nI agree, generally, with my colleague's recitation of the facts. With respect to the officer's use of the phrase \"illegal entry\" in relation to the report he received from the U.S. Border Patrol, I note that the trial judge also used this expression in reference to border crossings. I take it that in both cases, the term \"illegal entry\" was used merely as the vernacular for a crossing at an unstaffed port of entry. I give no weight to its use.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-6", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 14–15", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The analysis of this case necessarily focuses on the Customs Act , specifically s. 99(1)(f), which authorizes the stop and search of a vehicle (or other conveyance) where an officer suspects on reasonable grounds that the vehicle is or might be involved in a breach of the Act. A breach of the Act includes an attempt, which is defined as an offence in s. 159 . With respect to the words \"might be\" in s. 99(1)(f), I agree with my colleague that they refer to the possibility that an offence is taking place. Scanning s. 99(1)(f) reveals, therefore, that police are authorized to stop and search a vehicle once an officer has formed a reasonable suspicion that there is a possibility that the vehicle is being used to smuggle or to attempt to smuggle contrary to the Customs Act or regulations thereunder. Parliament has used language which requires the officer neither to believe on reasonable grounds that there is a possibility of smuggling nor to suspect on reasonable grounds that smuggling is, in fact, taking place. A reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices.\n\nThat this threshold is not stringent, and indeed is lower than that prescribed by other statutes authorizing stops or searches in different circumstances, is eminently understandable. Canada shares a long and undefended border with the United States with many points of entry, a significant number of which are or may be unstaffed at any given time. The border facilitates not only legitimate commerce between the nations but also, unfortunately, the smuggling of liquor, narcotics, weapons or other contraband. The state has a pressing interest in protecting its borders.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-7", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 16–17", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "This legitimate interest of the state is reflected in the scheme and substance of the Customs Act , notably Parts II and VI concerning importation and enforcement respectively. The Act grants peace officers wide powers to search persons, vehicles and goods and provides for seizure and forfeiture. The Act also recognizes that persons and goods can arrive in Canada by a variety of means and through one of many ports of entry. Points of entry are, of course, not restricted to points along the territorial limits of Canada. The concept of a border is broader than mere geographic boundaries and necessarily, so too is the scope of the Act. Persons, vehicles and goods can arrive in Canada for customs purposes and be subject to the Act even though they are already well inside Canadian territory.\n\nThe standard set by s. 99(1)(f) is not stringent but it is not illusory. It has not been argued, and I do not suggest, that s. 99(1)(f) of the Act authorizes an officer to conduct random stops of vehicles merely because they are in the vicinity of the border and on no other basis. Nonetheless, being at or in the vicinity of the border is relevant to the application of enforcement measures under the Act.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-8", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 18–19", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The unique context that border crossings present was recognized by this Court in R. v. Simmons, [1988] 2 S.C.R. 495. Dickson C.J., writing for the majority, said (at p. 528): National self-protection becomes a compelling component in the calculus. I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. Travellers arriving in Canada, whether at an airport or through any other point of entry, expect, if they do not relish, routine questioning and inspection. It is not surprising, therefore, that the appellant Jacques in the instant appeal answered Constable Ward's questions about where he had come from and what goods he was carrying just as he would have, had he been questioned at the point of entry three minutes' drive away.\n\nIn Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, Iacobucci J. observed, at p. 1072: . . . at a border the state has an interest in controlling entry into the country. Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context. These interests and expectations dictate that examination of a person for purposes of entry must be analyzed differently from the questioning of a person within Canada.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-9", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "para 20", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "This passage from Iacobucci J. highlights the need for a contextual approach, which, in Dehghani and in the instant appeal, recognizes the significance of the border situation. Contextual analysis of Charter rights and freedoms is well established in this Court. As L'Heureux-Dubé J. observed, concurring, in R. v. Bernshaw, [1995] 1 S.C.R. 254, at pp. 304-6, in which the appellant challenged the admissibility of breathalyser evidence under s. 8 of the Charter : Even under the Charter , \"reasonable and probable grounds\" can mean different things in different contexts. This Court has previously referred to the standard of \"reasonable and probable grounds\" as one of \"credibly-based probability\": Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; Baron v. Canada, [1993] 1 S.C.R. 416, at p. 446, and, on another occasion, of \"reasonable probability\" or \"reasonable belief\": R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166 (per Wilson J.). These different formulations are, themselves, unhelpful for the purpose of deciding what \"reasonable and probable grounds\" mean in the case at bar. What is more important is an examination of the context in which that phrase, and the values underlying that phrase, arise. . . . Notably, this Court has recognized on numerous occasions that what constitutes \"reasonableness\" and what constitutes a \"reasonable expectation of privacy\" may vary from one context to the other, depending upon the competing considerations at the heart of the issue: Hunter v. Southam Inc., supra, at p. 155; R. v. Simmons, [1988] 2 S.C.R. 495, at pp. 526-28. \"[T]he standard of review of what is ‘reasonable’ in a given context must be flexible if it is to be realistic and meaningful\": McKinlay Transport Ltd., supra, at p. 645 (per Wilson J.). [Emphasis added.]", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-10", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 21–22", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is against this backdrop that the language of s. 99(1) (f) of the Customs Act must be understood and the actions of the police officer who stopped and searched the appellants' vehicle weighed. In reaching the conclusion that the appellants' ss. 8 and 9 rights were violated, the trial judge erred in placing the case in the context of arbitrary vehicle checks of the kind considered by this Court in R. v. Hufsky, [1988] 1 S.C.R. 621, and R. v. Ladouceur, [1990] 1 S.C.R. 1257. Although an analogy may be drawn between these cases and the instant appeal to the extent that in each the state's compelling interest either in highway safety and compliance in the case of the former, or in sovereignty, in the case of the latter, is relevant in the constitutional calculus, the random stop cases do not govern this appeal. Section 99(1) (f) of the Customs Act does and the trial judge erred by overlooking it.\n\nHaving failed to refer explicitly to s. 99(1)(f) of the Act, the trial judge further erred by overstating the necessary grounds for the officer's actions. Section 99(1)(f) authorized the detention and search of the appellants' vehicle on the basis of reasonable suspicion of smuggling or an attempt thereto. However, with respect to the officer's observation of bags bearing the name \"Wal-Mart\", Harper Prov. Ct. J. said ((1993), 143 N.B.R. (2d) 64, at p. 75), \"such a statement, without more, is hardly evidence supporting any probability of illegal smuggling\", and at the end of the same paragraph, referring to the officer's evidence that he saw liquor boxes and U.S. department store items, the trial judge said, \"[the evidence] is hardly more helpful to a court attempting to decide whether such statements without more indicate the probable presence of smuggled goods\" (emphasis added).", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-11", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 23–25", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "This passage, notably the repeated references to evidence \"without more\", demonstrates another problem with the trial judge's analysis. In assessing the officer's actions, Harper Prov. Ct. J. adopted a dissecting approach to evidence when, instead, he should have measured the totality of the circumstances.\n\nA sound approach to the assessment of evidence was canvassed by Doherty J.A. of the Ontario Court of Appeal in R. v. Simpson (1993), 12 O.R. (3d) 182, albeit in a different context, one in which the officer lacked statutory authority unlike in the present case. In determining whether or not a police officer's detention of a vehicle and its driver and passenger could be authorized by common law in the absence of statutory authority, Doherty J.A. reviewed U.S. jurisprudence on the doctrine of articulable cause and stated (at p. 202): \"These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.\"\n\nViewing the facts and circumstances as a whole, rather than isolating each in turn, is an approach which commends itself beyond the fact situation in Simpson. As Belleghem J. observed in R. v. Marin, [1994] O.J. No. 1280 (Gen. Div.), with respect to the facts (or \"indicators\") warranting a detention and search for narcotics under the Customs Act (at para. 16): The \"indicators\" are to be seen as a constellation, or cluster, leading or tending to a general conclusion. Looked at individually no single one is likely sufficient to warrant the grounds for the detention and seizure. The whole is greater than the sum of the individual parts viewed individually.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-12", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "para 26", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Turning to the facts in the present appeal, I recall Hoyt C.J.N.B.'s succinct summary in the Court of Appeal ((1995), 157 N.B.R. (2d) 195, at pp. 205-6): Three minutes before stopping Mr. Jacques' vehicle, Cst. Ward had received precise and reliable information of a single vehicle entry into Canada at an unmanned border point on a secondary paved road in a rural area. He went to the mouth of the road leading from the border where, calling on his experience of three years of police work in the area, he found a vehicle that, in his opinion, did not fit into the surroundings. He came to that conclusion after observing a covered half-ton truck with a cellular phone antenna and, more significantly, with no front licence plate, a requirement for New Brunswick vehicles, and an out-of-province plate at the rear of the vehicle. In such circumstances, in my opinion, Cst. Ward's actions were not arbitrary and he was acting on reasonable grounds when he stopped and searched Mr. Jacques' vehicle. The three-minute time span is particularly important because not only did Constable Ward receive the information of a single vehicle entry into Canada three minutes before stopping the appellants' car, but also Constable Ward estimated that at the point he stopped the appellants' vehicle, it was three minutes' drive from the border.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-13", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 27–28", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "To the extent that the officer's experience is relevant in the circumstances, it is noteworthy that at the time of trial, Constable Ward had been employed by the RCMP for three-and-a-half years and that the senior officer, in charge of the Customs and Excise Section in Woodstock, which covers the Perth-Andover detachment where Constable Ward was based, was also an RCMP officer. The senior officer testified that the double garage in the RCMP's office had been renovated to seal off one bay as a bondroom to accommodate the quantity of items seized. This evidence suggests no dearth of customs investigations.\n\nThe circumstances of this case are very different than those of R. v. Montour and Longboat (1992), 129 N.B.R. (2d) 361 (Prov. Ct.), in which the officer had \"no particular reason for stopping [the] vehicle\" (p. 365). It is significant that in Montour and Longboat, the officer did not purport to proceed under s. 99(1)(f) of the Act. He conducted an arbitrary check of the vehicle and found contraband tobacco; however, the detention exceeded the purposes justified in Hufsky, supra, and Ladouceur, supra, and the evidence was excluded.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-14", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 29–30", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court's decision in R. v. Wilson, [1990] 1 S.C.R. 1291, a companion case to Ladouceur, supra, is more apropos to the instant appeal than Montour and Longboat, supra. In describing the circumstance of the detention of a motor vehicle by a floating checkpoint, Cory J. said (at p. 1297): . . . the stopping of the appellant was not random, but was based on the fact that the appellant was driving away from a hotel shortly after the closing time for the bar and that the vehicle and its occupants were unknown to the police officer. While these facts might not form grounds for stopping a vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of a rural community. In a case such as this, where the police offer grounds for stopping a motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random. As a result, although the appellant was detained, the detention was not arbitrary in this case and the stop did not violate s. 9 of the Charter . In Wilson, there was arguably less information on which the officer could justify detention of the motor vehicle than in the present appeal. Nonetheless, the facts, when viewed in their entirety, justified the detention.\n\nIn the instant appeal, the precise and reliable information relayed to the officer, the location of the appellants' vehicle and his observations of it amply satisfied the requirements for detention and search under s. 99(1)(f) of the Act. It follows that the appellants were not arbitrarily detained contrary to s. 9 of the Charter .", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-15", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "para 31", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The circumstances which permitted the stop also permitted the search of the appellants' vehicle. Constable Ward's search met the criteria set out by this Court in R. v. Collins, [1987] 1 S.C.R. 265: it was authorized by law, namely s. 99(1)(f) of the Act; that law is itself reasonable as I have previously elaborated; and the search was carried out in a reasonable manner. On this third point, I can add nothing to the summary in the court below (at p. 207): Cst. Ward's actions amounted to a cursory search of the truck and its contents sufficient to confirm his suspicions. The circumstances of the search themselves do not indicate that it was unreasonable. Cst. Ward was not abusive or overbearing. Although Cst. Ward could have searched the truck in any event, he sought and received Mr. Jacques' permission to do so. He disturbed the contents of the truck only slightly and sufficiently to confirm his suspicions that an offence may have occurred. The appellants' right to be secure against unreasonable search and seizure was not violated. The appeal also fails on this ground.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-16", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "para 32", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Having concluded that there was no violation of the appellants' rights under ss. 8 and 9 of the Charter , I would dismiss the appeal. However, it is necessary to address first the failure of the Crown to adduce further evidence after the voir dire ruling, thereby necessitating an acquittal. The relevant jurisprudence was canvassed in this Court's decision in R. v. Power, [1994] 1 S.C.R. 601, concerning an appeal from a directed verdict of acquittal where the Crown, upon receiving an adverse interlocutory ruling, declined to introduce any other evidence. Writing for the majority, L'Heureux-Dubé J. stated (at p. 615): I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the \"clearest of cases\", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention. The Crown's actions in the instant appeal fall far short of an abuse of process. According to the trial transcript, the other evidence which the Crown declined to adduce consisted of further police testimony, the expert evidence of a technician who analyzed the contents of the seized bottles to confirm the presence of alcohol and the evidence of the head of purchasing of the New Brunswick Liquor Control Commission to establish that the seized bottles were not sold in the province. The trial judge's ruling on the voir dire, however, rendered virtually meaningless any other evidence which the Crown might have been in a position to call and particularly that of the technician and the Liquor Control Commission official. It would be absurd to expect the Crown to have proceeded with the trial under those circumstances.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-17", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 32–35", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Its failure to do so does not affect the availability of a new trial.\n\nI have found that although the appellants were detained, their detention was not arbitrary and although their vehicle was searched, the search was not unreasonable. Accordingly, there was no violation of the appellants' rights under ss. 8 or 9 of the Charter .\n\nSince writing the above, I have had the benefit of the reasons of Justice Sopinka. I appreciate that the issue he raises has not been expressly addressed. I am satisfied that the excluded evidence, together with the evidence already of record, constitute circumstantial evidence such that, had the error not occurred and the excluded evidence been allowed, the verdict would not necessarily have been the same or, stated otherwise, that such evidence could reasonably result in a conviction. A new trial is warranted. The appeal should be dismissed. //Major J.// The following are the reasons delivered by\n\nMajor J. (dissenting) -- This appeal raises the narrow issue of whether an RCMP officer, acting under the authority of the Customs Act , R.S.C., 1985, c. 1 (2nd Supp .), had the requisite grounds to stop and search the appellants' vehicle away from the border. The appellants submit that the officer in question lacked reasonable grounds to suspect that the Customs Act had been or might be infringed, and that they were therefore arbitrarily stopped and subjected to an unreasonable search and seizure, in contravention of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms . The respondent, relying on the decision of the Court of Appeal of New Brunswick, submits that the officer had the proper grounds to stop and search the vehicle in question. I. Relevant Statutory Provisions", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-18", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "para 36", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Customs Act , R.S.C., 1985, c. 1 (2nd Supp .) 11. (1) Subject to this section, every person arriving in Canada shall, except in such circumstances and subject to such conditions as may be prescribed, forthwith present himself at the nearest customs office designated for that purpose that is open for business and answer truthfully any questions asked by an officer in the performance of his duties under this or any other Act of Parliament. 99. (1) An officer may (f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening. 159. Every person commits an offence who smuggles or attempts to smuggle into Canada, whether clandestinely or not, any goods subject to duties, or any goods the importation of which is prohibited, controlled or regulated by or pursuant to this or any other Act of Parliament. II. Facts", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-19", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 37–39", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "On March 9, 1993, at 12:56 p.m., Constable Ward, an RCMP officer attached to the Perth-Andover, New Brunswick detachment, received a radio report informing him that a single vehicle had crossed the Canada-U.S. border at a nearby uncontrolled border crossing. It is worth noting that while the officer testified that the report was in respect of an “illegal entry into Canada”, the parties agreed before that there is no law prohibiting entry into Canada at an uncontrolled border crossing. The radio report originated from the U.S. Border Patrol. There was no description of the vehicle, its passengers, contents or licence plates.\n\nThe same officer proceeded to the intersection of Brown Road and the Trans-Canada Highway. Brown Road is a road which runs parallel to the border on the U.S. side, then turns across the border and intersects with the Trans-Canada Highway, approximately four to five kilometres from the border. Constable Ward testified that it would take approximately three minutes to drive from the border to the intersection. There are residences along, but no exits from Brown Road until one reaches the Trans-Canada Highway.\n\nThe constable testified that it took him three to five minutes to drive from where he received the radio report to the intersection. When he arrived at the intersection, he noticed two vehicles waiting to enter the Trans-Canada Highway. The first in line was a Chrysler Dynasty with New Brunswick licence plates, driven by a woman approximately 60 years old. The second vehicle was a Dodge pickup truck, with a Quebec licence plate in the rear, a cellular phone antenna, and a cap on the back. This vehicle was occupied by the appellants.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-20", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "para 40", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The constable stopped the appellants’ truck. The following portion from the transcript of his direct examination summarizes his reasons for stopping the appellants. Court: And they were both on the Brown Road as it approached the Trans-Canada. A: That’s correct, Your Honour. The first vehicle that I noticed was the Chrysler Dynasty and I noticed that there were New Brunswick plates on the car and there was one lady in the car, and she looked approximately I’d say sixty years old and it appeared at that time that the -- it didn’t look like as -- like your suspicious vehicle. It wasn’t something that sparked my attention, I would rather say, like it wasn’t like -- she didn’t look like somebody that would be smuggling or jumping the border. Court: What does -- do they have a look about them, Constable? A: Pardon. Court: Does a smuggler have a look about him? A: Well, the equipment used sometimes is rather uniform as to the way it happens. Sometimes they use four wheel drive or cars that are loaded down, like in the rear of the vehicle, you could notice that the vehicle is loaded down with merchandise sometimes if it's a large load, and . . . Court: And sometimes they’re smuggling and you don't see anything, isn’t that right? A: That’s -- that’s correct, yes. Every -- sometimes things go unnoticed. Court: Sometimes a nice 60 or 70 year old lady is maybe sitting on a nice load of hash under the front seat. A: It’s possible, Your Honour. . . . Q: And continue your narrative, please, Constable, what happened, you noted the two vehicles and described what you saw and what you did from that point, please? A: Okay, I, at this time, I was alone in my marked police car, so I had a choice which vehicle I could stopped.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-21", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "para 40", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "So what I did was I looked at both vehicles and I noticed that the truck had a cellular antenna on the roof and there was a cab on -- a cap on the pickup truck and there was no license plate in the front and I thought to myself, well, this vehicle it looks more likely because it doesn’t fit into the surroundings of the village. So when I got behind the truck, I noticed that the license plate was from Quebec, so what I -- I had a choice I could either take the car or the truck so I picked the truck because it was from out of the province and it likely wasn’t supposed to be in the area or didn’t fit into the area. Court: Why, why do you say likely it wasn’t supposed to be in the area, that makes it -- that’s a very peculiar statement for a person who’s giving me evidence. Why do you say that? A: Because the Chrysler Dynasty had New Brunswick license plates on it and it seemed like the vehicle was a local car and that the pickup truck was more likely from another area. It had a Quebec license plate on it and it didn't look like a familiar vehicle. Court: Did the Dodge Dynasty look like a familiar vehicle? A: No, it didn’t but it had New Brunswick plates on it.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-22", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "para 41", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "During cross-examination, the constable again stated that he stopped the appellants’ truck because he had a choice between the two vehicles and he picked the one he felt was more suspicious. A. My reasonable belief was the fact that there was an entry into Canada at an unmanned port and my immediate patrol to the area spotted two vehicles. I had a choice between one or the other and one vehicle had Quebec plates on it and one had New Brunswick plates on it, so I had to stop one or the other because the road coming out of Brown Road connects with the Trans-Canada and any vehicles that may have been on that road were suspects to this offence. Q. Why did you not stop both vehicles? A. Because one was from Quebec which is out of the province and as mentioned before it -- it -- the vehicle didn’t look like it was -- it looked like it was out of place and my grounds or my knowledge as a police officer came into effect at that point and I used all -- I used sound judgement to check well, if the vehicle is out of the province, then this is the one I’ll check. Q. So your sound police judgement is that vehicles that come out of province are suspect vehicles? A. What I’m saying is that the car from New Brunswick is -- was more likely to be from the local area than to be from Quebec. Q. What you said before was that a vehicle with an out of province license was suspect? Isn’t that what you said? Because it had an out of province license? A. What’s your question? Q. My question is in your sound police opinion, you feel that an out of province licensed vehicle is always the suspect vehicle? A.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-23", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 41–43", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "At an unmanned port, yes, if there -- if there’s other factors involved such as information received from the United States Border Patrol stating that there was an entry into Canada at that specific location. Then I have no choice but to gather enough evidence and belief that this may possibly be the vehicle. Q. So you thought this may possibly be the vehicle? A. Yes, I did. Q. You were suspicious of the vehicle? A. Yes, I was. Q. But you had nothing to indicate that this was the vehicle? A. No, I didn’t.\n\nConstable Ward approached the truck on foot and saw, through the window, several Wal-Mart bags. The only Wal-Mart stores in the area at the time were in the United States. He proceeded to ask the driver of the truck, the appellant Jacques, where he had been. Jacques replied, “I’m coming from across”. Jacques was asked what he had in the back of the vehicle, and replied that it was whisky. On request, the appellant Jacques opened the back of the truck. The constable noted the previously mentioned bags, as well as some boxes with liquor markings on them.\n\nThe constable then placed the appellants under arrest and confiscated their truck. The appellants were taken to the RCMP detachment in Perth-Andover, where they were permitted to contact counsel. They were subsequently searched and interviewed at Woodstock.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-24", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 44–45", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellants were charged with failing to report to customs and smuggling, under ss. 11(1) and 159 of the Customs Act . In Provincial Court ((1993), 143 N.B.R. (2d) 64), Harper Prov. Ct. J. found that the stopping of the appellants’ vehicle was based on the officer’s hunch, which was insufficient to constitute reasonable grounds. Relying on this Court's decisions in R. v. Hufsky, [1988] 1 S.C.R. 621, and R. v. Ladouceur, [1990] 1 S.C.R. 1257, the trial judge held that the stop was arbitrary, and thus a violation of s. 9 of the Charter . He said that in conducting his search, the officer was attempting to find evidence to justify his initial illegal detention of the appellants. Harper Prov. Ct. J. also held that the statements by Jacques and the subsequent consent to search the vehicle were given in violation of the Charter and the evidence gathered thereafter was inadmissible pursuant to s. 24(2) of the Charter . The Crown called no further evidence and the appellants were acquitted.\n\nThe acquittal was overturned by the Court of Appeal for New Brunswick: (1995), 157 N.B.R. (2d) 195. The Chief Justice held that the trial judge had erred in considering the stop only in relation to the common law power of the police to perform random stops to investigate driving offences. He found that the stopping of the appellants’ vehicle was permitted under s. 99(1) (f) of the Customs Act . The Court of Appeal concluded that the officer had reasonable grounds to suspect a contravention of the Customs Act because the truck was on the road leading from the border and did not fit into the surroundings. III. Issues", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-25", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 46–48", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The appellants submit that the stop and search of their vehicle was an unreasonable search and seizure, and thus a violation of s. 8 of the Charter . Further, the appellants submit that they were arbitrarily detained, in violation of s. 9 of the Charter . These submissions both rest on what is the main issue in this case: whether Constable Ward suspected on reasonable grounds that the truck occupied by the appellants had been or might be in contravention of the Customs Act . IV. Analysis\n\nWhile two Charter rights are alleged to have been infringed in this case, they both center on the same issue, whether the RCMP had reasonable grounds to suspect that the truck in question had been or might be involved in a contravention of the Customs Act . The trial judge felt the officer did not have reasonable grounds, while the Court of Appeal had the opposite view.\n\nIf the officer did not have reasonable grounds for his suspicion, as required under s. 99(1)(f) of the Act, the detention of the appellants’ truck was arbitrary. Random stopping of vehicles was held to be a violation of s. 9 of the Charter in Hufsky and Ladouceur. In those cases, the violation of s. 9 was justified under s. 1 of the Charter , as the violation occurred pursuant to a valid statutory goal, i.e., highway safety. If the stop was arbitrary it cannot be authorized by the Customs Act , as that Act requires suspicion on reasonable grounds, and does not authorize random stops. It was common ground that the appellants were not violating any traffic laws, nor were they stopped for a safety inspection.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-26", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 49–50", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my opinion, the trial judge was correct in finding that the officer did not have reasonable grounds to stop the appellants. The Court of Appeal noted that the trial judge did not refer specifically to the requirements of s. 99(1)(f). While this is true, the trial judge clearly realized that the police require reasonable grounds to stop vehicles except under the authority provided by Hufsky and Ladouceur. He stated that the facts of the case did not “constitute reasonable grounds to suspect that [the appellants’ truck] may be carrying contraband goods” (p. 74).\n\nThe requirements of s. 99(1)(f) are not stringent, perhaps because of the obvious difficulties in controlling the long undefended border between Canada and the United States. The officer need only suspect, on reasonable grounds, that the vehicle in question is or might be involved in a breach of the Customs Act . I take the phrase “might be” in the section to mean merely that there is a possibility that an offence is taking place, not implying suspicion of a future offence. While the requirement is not stringent, there must be some connection between the factors relied on by the officer and the suspected breach of the Act. Without such a connection, customs officers would have power to stop arbitrarily. Had Parliament intended customs officers to have such power, it would have said so, and not enacted s. 99(1)(f).", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-27", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 51–52", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The case of R. v. Montour and Longboat (1992), 129 N.B.R. (2d) 361, while not concerned with s. 99(1)(f), is of assistance. There, a police officer stopped a van because it was an older vehicle bearing out-of-province plates. He had a “hunch” and “suspicion” about the van. Upon approaching the van, he spotted what appeared to be American tobacco products in the back of the van. The occupants were charged with a violation under the Excise Act. The trial judge found that the van had been arbitrarily stopped, and that the stop was not pursuant to the goals justified in Hufsky and Ladouceur. The trial judge found a violation of s. 9 and excluded the evidence under s. 24(2). The New Brunswick Court of Appeal overturned the decision (1994), 150 N.B.R. (2d) 7, but this Court restored the trial judge’s verdict, [1995] 2 S.C.R. 416.\n\nIn R. v. Simpson (1993), 12 O.R. (3d) 182, the Ontario Court of Appeal held that in the absence of statutory authority to stop a vehicle, stopping a vehicle for the purpose of determining if the occupants were involved in criminal activity can only be justified if the police have some “articulable cause” for the detention. The Court of Appeal held that there must be a constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation. Of particular importance to this case, the Ontario Court of Appeal stated that a hunch based on intuition gained by experience cannot suffice as articulable cause. “[A]rticulable cause” is a standard equivalent to the requirements of s. 99(1)(f).", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-28", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 53–56", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case, the constable based his actions on factors similar to those relied on by the officer in Montour and Longboat. He listed a number of random factors which he said indicated that the vehicle was suspicious. The appellants’ vehicle was stopped, according to the officer, because of its proximity to the border, and the fact that it was a truck with a cellular telephone antenna and a cap on the back. The officer thought the fact that the appellants’ vehicle bore a Quebec licence plate was an important consideration. These factors, assessed individually or in concert, do not constitute reasonable grounds to suspect a contravention of the Customs Act .\n\nThe first factor, which the appellants’ vehicle shared with the New Brunswick licensed car, was that the vehicle was at a point the officer identified as being three minutes away from the border. The trial judge in the absence of evidence gave this factor little weight, as it required unwarranted assumptions about the speed of the vehicles in question.\n\nThe second factor was the type of vehicle driven by the appellants. The officer stated that he was suspicious because the vehicle was a truck with a cap on the back and a cellular phone antenna. He offered an opinion that smugglers commonly use four-wheel drive trucks or “loaded-down” cars but did not state the basis for this opinion. There was no evidence, for example, that the officer had arrested any smugglers using similar vehicles.\n\nThe third factor was the presence of a Quebec licence plate on the appellants’ truck. In my opinion, there was no articulable reason to suggest that vehicles from out of the province are more likely to be involved in an offence under the Customs Act .", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-29", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 57–59", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The arbitrary nature of the stop is evidenced by the officer’s testimony: he testified twice that he had a choice between the two vehicles found at the intersection, and that he had to stop one or the other. The officer stated that the appellants’ truck looked more likely to be involved in an offence than the other vehicle stopped at the intersection, the Dynasty, which had New Brunswick licence plates and was driven by a woman of approximately sixty years of age. The officer stated, “I had a choice I could either take the car or the truck so I picked the truck because it was from out of province and it likely wasn’t supposed to be in the area or didn’t fit into the area”.\n\nThe officer did not explain why a truck with a cellular phone antenna fit in less with the rural surroundings than did the Dynasty car which was also stopped at the intersection. In fact, he admitted that the Dynasty was not a “familiar” vehicle. Even assuming the officer was correct in concluding the appellants’ truck was not from the area, none of the officer’s evidence points to a reason why the appellants’ truck was likely to have been involved in a contravention of the Customs Act .\n\nConstable Ward never explained why the truck was the more likely of the two vehicles to have crossed the border. It should be remembered that there was no information as to the description, occupants, licence plates or contents of the vehicle that had crossed the border. It appears that any vehicle crossing at the uncontrolled border point trips an electronic signal, leading to the type of report relayed to Constable Ward. In his testimony, the police officer admitted that he “had nothing to indicate that this was the vehicle”.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-30", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 60–61", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "As mentioned above, there must be something that connects the vehicle to an alleged breach of the Customs Act for the requirements of s. 99(1)(f) to be satisfied. None of the factors listed by the officer have any connection with an infringement of the Customs Act , or any other law. It is unreasonable to suggest that because a vehicle is from Quebec, a neighbouring province, or even “not from the area”, it is more likely to be involved in an illegal activity.\n\nThe respondent cites R. v. Simmons, [1988] 2 S.C.R. 495, which held that people have a lower expectation of privacy when crossing the border, to argue that the search in this case was reasonable. At the same time, the respondent relies on s. 99(1)(f) as the authority for the search. In doing so, the respondent must be arguing that crossing the border, at least at an uncontrolled border crossing, can create a reasonable suspicion that an illegal activity is occurring. Without additional evidence, such as the existence of a manned border crossing nearby that was avoided, it is unreasonable to suggest that by performing a perfectly legal act one can become a suspect under the Customs Act . It is important to note that Simmons was concerned with whether a person undergoing a routine search in the customs office at a point of entry into Canada is detained for the purposes of s. 10( b ) of the Charter , and not with the grounds for searches under the Customs Act .", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-31", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 62–63", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Even if it is assumed, for the moment, that crossing the border provides “reasonable grounds” to suspect sufficient to ground a search under the Act, in this case there was nothing to indicate that the appellants’ truck had crossed the border, except that it was on Brown Road, a coincidence which the truck shared with at least one, and possibly other, vehicles. The fact that a vehicle has Quebec plates rather than New Brunswick plates is not an indication that the vehicle has likely just crossed the border from the United States. In fact, it is arguable that a resident of the area would be more likely to be aware of the presence of an uncontrolled border crossing in the neighbourhood. In any event, the officer admitted that he did not know if the appellants’ vehicle had, in fact, crossed the border.\n\nThat there is nothing illegal per se about crossing the border at an uncontrolled checkpoint is significant. Section 99(1)(f) refers to a suspicion on reasonable grounds that a contravention of the Customs Act or its regulations has occurred or might be occurring. Even if the truck could have been identified as the vehicle which had just crossed the border, there was still nothing to indicate that a violation of the Customs Act had occurred.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-32", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 64–65", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The constable acted on a hunch based on his experience in this case, a fact recognized by the Court of Appeal. At p. 205, Hoyt C.J.N.B. refers to actions of Constable Ward as follows: Three minutes before stopping Mr. Jacques’ vehicle, Cst. Ward had received precise and reliable information of a single vehicle entry into Canada at an unmanned border point on a secondary paved road in a rural area. He went to the mouth of the road leading from the border where, calling on his experience of three years of police work in the area, he found a vehicle that, in his opinion, did not fit into the surroundings. He came to that conclusion after observing a covered half-ton truck with a cellular phone antenna and, more significantly, with no front licence plate, a requirement for New Brunswick vehicles, and an out-of-province plate at the rear of the vehicle. [Emphasis added.]\n\nThe “precise and reliable information” referred to by the appeal court was a report that a single vehicle had crossed the border at Four Falls, New Brunswick. There was no evidence regarding type, model, or colour of the vehicle, nor was there any information about licence numbers or province.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-33", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 66–67", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "Basing a detention on “experience as a police officer” is precisely the justification that was disapproved in Simpson and Montour. The experience of police officers should not be discounted in evaluating grounds to stop and search a vehicle. However, allowing police to exercise their considerable powers of detention and arrest based on such experience has the potential to permit ex post facto justification of police action. It is of some significance that here the peace officer’s experience was in general police work as an RCMP constable and not as a regular customs official. In assessing the constable’s experience it should not be overlooked that he believed crossing the border at an uncontrolled border crossing was illegal, which it is not. That mistake could have influenced his actions.\n\nBecause there were no reasonable grounds for the detention of the appellants in this case, they were arbitrarily detained, in contravention of s. 9 of the Charter . The search was without warrant, and thus a prima facie unreasonable search: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145. To be reasonable, a warrantless search must be authorized by law, the law must be reasonable, and the search carried out must be reasonable: see R. v. Collins, [1987] 1 S.C.R. 265. As mentioned, s. 99(1)(f) does not authorize a warrantless search unless the officer has reasonable grounds to suspect that a vehicle has contravened the Act. So in this case, where such grounds were absent, there is no legal authority for a warrantless search. For this reason, s. 8 was breached.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-34", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 68–71", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "It remains to determine whether the evidence, which consisted of the contents of the truck and the personal effects of the appellants, should be excluded under s. 24(2) of the Charter . The Court of Appeal did not deal with this issue, as they found that no breach of the Charter had occurred.\n\nThe trial judge held that the admission of the evidence would render the trial unfair. Despite the fact that it was “real” evidence, the trial judge felt that it would not have been obtained but for the breach of the appellants’ Charter rights. On the authority of R. v. Mellenthin, [1992] 3 S.C.R. 615, the trial judge excluded the evidence.\n\nThis case is similar to Mellenthin. In that case, the police stopped a car at a check stop. The police, without grounds to search the car, asked the driver to open a bag, which was found to contain narcotics. In this case, the police stopped the appellants without reasonable grounds, and requested that the driver open up the rear of the truck. In Mellenthin this Court found that the evidence would not have been found but for the accused’s participation, brought on by a breach of his Charter rights. The evidence was excluded.\n\nEven if I disagreed with the trial judge on the effect of the evidence on the fairness of the trial, his decision should be upheld. The test is not one of correctness. In R. v. Duguay, [1989] 1 S.C.R. 93, it was held that a trial judge’s decision regarding s. 24(2) should not be overturned absent an error as to the applicable principles of law or a finding that is unreasonable. The trial judge was not in error as to the applicable principles, and his finding was not unreasonable.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-35", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 72–75", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "The evidence would not have been found but for the Charter breach. R. v. Burlingham, [1995] 2 S.C.R. 206, held such evidence would affect trial fairness if admitted, notwithstanding the fact that it is real evidence. Based on Mellenthin and Burlingham, the trial judge was correct in excluding the evidence.\n\nThe trial judge did not comment on the second and third Collins categories. In my opinion the breach of the Charter was not serious, given the officer’s apparent good faith, and the fact that he thought he had some basis (albeit insufficient) for stopping the appellants.\n\nIn assessing the third category, the effect on the reputation of the administration of justice, it is of interest that the offence alleged is not a crime of violence or loss of property. However, smuggling contraband such as alcohol is a serious offence.\n\nThe seriousness of the alleged crime notwithstanding, this offence was not demonstrated on the facts. The actus reus is failing to report to the nearest customs office. It was conceded, as it had to be, that the appellants had not driven past any customs offices, nor were they driving away from the nearest customs office. The officer arrested the appellants before they had a chance to report to customs as required. An analogy might be a person being arrested in the hallway between an airplane off-ramp and the customs office and charged for failing to report to customs before he or she had a chance to do so.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-1425-36", - "doc_type": "caselaw", - "act_code": "[1996] 3 SCR 312", - "act_short": "Jacques", - "act_name": "R. v. Jacques", - "section": "", - "citation": "R. v. Jacques, [1996] 3 SCR 312", - "marginal_note": "paras 76–78", - "heading": "Border searches; reasonable suspicion for a vehicle stop near the border under the Customs Act", - "part": "Supreme Court of Canada", - "division": "", - "text": "In summary, the trial judge was correct in finding that the RCMP officer had no reasonable grounds to suspect that the truck driven by the appellants had contravened the Customs Act . Because of this, the detention of the appellants was arbitrary, in violation of s. 9 of the Charter . In addition, the subsequent search was unreasonable and violated s. 8 of the Charter . Lastly, the trial judge did not make an error as to the applicable principles of law under s. 24(2), nor was his finding unreasonable.\n\nSince writing the above reasons I have reviewed the reasons of Justice Sopinka and agree with him.\n\nThe appeal should be allowed. Appeal dismissed, Sopinka and Major JJ. dissenting.", - "current_to": "1996-10-03", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1425/index.do" - }, - { - "id": "scc-2198-1", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 1–4", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "The issue in this case is whether the appellant may, in the course of an action under s. 135 of the Customs Act , R.S.C. 1985, c. 1 (2nd Supp .) (“CA”), avail himself of the right against self-incrimination guaranteed by s. 11( c ) of the Canadian Charter of Rights and Freedoms .\n\nSection 11(c) provides that a “person charged with an offence” cannot be compelled to be a witness “in proceedings against that person in respect of the offence”. At the conclusion of the hearing, we were all of the opinion that the appellant in this case is not a “person charged with an offence” within the meaning of s. 11 of the Charter . The Court therefore dismissed his appeal, stating that the reasons would follow at a later date. Here are those reasons. II Facts and Judicial History\n\nOn June 25, 1996, a customs officer demanded, by way of a written notice served pursuant to s. 124 of the CA, that the appellant pay $315,458, that is, the deemed value of the goods he allegedly attempted to export by making false statements. This set in motion the process commonly referred to as “ascertained forfeiture”.\n\nThe appellant subsequently exercised the recourse provided for in s. 129 of the CA, requesting that the respondent review the customs officer’s decision. He submitted his representations to the respondent. The respondent upheld the demand for payment on the ground that the goods had not been reported in accordance with ss. 95 and 153(a) and (c) of the CA. According to the respondent, the goods in question were stolen automobiles.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-2", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 5–8", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "On September 25, 2001, the appellant appealed the respondent’s decision by way of an action, pursuant to s. 135 of the CA. He asked that the respondent’s decision be varied and replaced by a judgment cancelling the notice demanding payment. He also contested the constitutional validity of a number of provisions of the CA.\n\nBefore filing a defence, the respondent filed a notice of motion for the purpose of examining the appellant for discovery pursuant to Rule 236(2) of the Federal Court Rules, 1998, SOR/98‑106 (“FCR”). The appellant contested the motion on the ground that it would violate his right against self-incrimination under s. 11( c ) of the Charter .\n\nIn an interlocutory judgment dated December 11, 2001, Prothonotary Morneau allowed the respondent’s motion ([2001] F.C.J. No. 1865 (QL), 2001 FCT 1361). In his view, the appellant could not rely on the protection afforded by s. 11( c ) of the Charter because the appellant was not a person charged with an offence in a penal proceeding. On the contrary, the appellant was a plaintiff in a civil action and could hardly be characterized as a “person charged with an offence”. The prothonotary also found it inconceivable that a plaintiff such as the appellant could avoid submitting to an examination for discovery when the adverse party demanded one.\n\nOn January 28, 2002, Blais J. of the Federal Court dismissed the appeal and affirmed the prothonotary’s decision ((2002), 216 F.T.R. 218, 2002 FCT 85). He agreed with the prothonotary that a notice of ascertained forfeiture is not penal in nature and held that the appellant could not benefit from the protection of s. 11( c ) of the Charter . However, Blais J. did mention that he found it strange that an appeal from a Minister’s decision should be by way of an action.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-3", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 9–13", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "On April 3, 2003, the Federal Court of Appeal affirmed Blais J.’s decision ((2003), 310 N.R. 235, 2003 FCA 176). Létourneau J.A., writing for the court, concluded that the forfeiture of property pursuant to the CA is not equivalent to a “charge” that would attract the application of s. 11 of the Charter .\n\nLétourneau J.A. considered that, in a voluntary reporting system in taxation and customs matters, the purpose of seizure and forfeiture proceedings and the other sanctions is to regulate the conduct of taxpayers with a view to preventively ensuring compliance with tax legislation. These proceedings are thus administrative in nature.\n\nLétourneau J.A. acknowledged the severity of the sanction. However, it was his opinion that the forfeiture of property, or of an amount equal to its value, in response to a contravention of the CA, does not constitute a true penal consequence within the meaning of s. 11 of the Charter . Létourneau J.A. relied on R. v. Wigglesworth, [1987] 2 S.C.R. 541, in this regard.\n\nLétourneau J.A. found it “surprising” and “puzzling” that an appeal from a Minister’s decision must be by way of an action. Nevertheless, since this was the procedure established by Parliament, he maintained that the FCR’s provisions pertaining to ordinary actions applied.\n\nAdopting a text-based approach here, Létourneau J.A. regarded the appellant as a plaintiff in an action in which the respondent was the defendant. The appellant was therefore not a “person charged with an offence” in this proceeding. He was not being sued, nor was he being prosecuted. In fact, he himself was the “poursuivant” (“prosecutor”, or plaintiff) in the civil law sense of the word.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-4", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 14–16", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "Létourneau J.A. thus concluded that the proceeding initiated by the appellant could not result in any conviction, fine or penal consequence that would make him a “person charged with an offence” within the meaning of s. 11 of the Charter .\n\nThe Court of Appeal therefore dismissed the appellant’s appeal, but without prejudice to his right to contest the constitutional validity of the legal process for reviewing and appealing the Minister’s decision in his main action. III Relevant Constitutional and Legislative Provisions\n\nCanadian Charter of Rights and Freedoms 11. Any person charged with an offence has the right . . . (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; . . . Customs Act , R.S.C. 1985, c. 1 (2nd Supp .) 124. (1) Where an officer believes on reasonable grounds that a person has contravened any of the provisions of this Act or the regulations in respect of any goods or conveyance, the officer may, if the goods or conveyance is not found or if the seizure thereof would be impractical, serve a written notice on that person demanding payment of (a) an amount of money determined under subsection (2) or (3), as the case may be; or (b) such lesser amount as the Minister may direct. . . . 135. (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant. (2) The Federal Court Act and the Federal Court Rules applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions. 160.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-5", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 16–18", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "Every person who contravenes section 12, 13, 15 or 16, subsection 20(1), section 31 or 40, subsection 43(2), 95(1) or (3), 103(3) or 107(1) or section 153, 155 or 156 or commits an offence under section 159 or 159.1 (a) is guilty of an offence punishable on summary conviction and liable to a fine of not more than fifty thousand dollars or to imprisonment for a term not exceeding six months or to both that fine and that imprisonment; or (b) is guilty of an indictable offence and liable to a fine of not more than five hundred thousand dollars or to imprisonment for a term not exceeding five years or to both that fine and that imprisonment. . . . Federal Court Rules, 1998, SOR/98‑106 236. . . . (2) Subject to subsection (3), a defendant may examine a plaintiff at any time after the statement of claim is filed. IV Issue\n\nThe issue in this case is whether Rule 236(2) of the FCR violates s. 11( c ) of the Charter by requiring a plaintiff in an action under s. 135 of the CA to submit to an examination for discovery. V Analysis A. Is the Appellant a “Person Charged With an Offence” Within the Meaning of Section 11 of the Charter ?\n\nSection 11( c ) of the Charter reads as follows: 11. Any person charged with an offence has the right . . . (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; 11. Tout inculpé a le droit : . . . c) de ne pas être contraint de témoigner contre lui-même dans toute poursuite intentée contre lui pour l’infraction qu’on lui reproche;", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-6", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 19–24", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "In Wigglesworth, supra, at p. 554, Wilson J., writing for the majority, interpreted the expression “person charged with an offence” to limit its application to “public offences involving punitive sanctions, i.e., criminal, quasi-criminal and regulatory offences”. She stated that a matter falls within s. 11 of the Charter where, first, by its very nature it is a criminal proceeding or, second, a conviction in respect of the offence may lead to a true penal consequence (Wigglesworth, at p. 559).\n\nSection 124 of the CA must therefore be considered in light of these two tests. (1) Does Section 124 of the CA Provide for a Penal Proceeding?\n\nWhen a matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, it falls, by its very nature, within s. 11 of the Charter . This is clearly true of federal prosecutions under the Criminal Code , R.S.C. 1985, c. C‑46 , and of prosecutions of quasi-criminal offences under provincial legislation.\n\nBy contrast, proceedings of an administrative — private, internal or disciplinary — nature instituted for the protection of the public in accordance with the policy of a statute are not penal in nature (Wigglesworth, supra, at p. 560).\n\nA distinction must therefore be drawn between penal proceedings on the one hand and administrative proceedings on the other. Only penal proceedings attract the application of s. 11 of the Charter .\n\nTo determine the nature of the proceeding, the case law must be reviewed in light of the following criteria: (1) the objectives of the CA and of s. 124 thereof; (2) the purpose of the sanction; and (3) the process leading to imposition of the sanction. (i) Objectives of the CA and of Section 124", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-7", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 25–29", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "The objectives of the CA are to regulate, oversee and control cross-border movements of people and goods. As Dickson C.J. stated in R. v. Simmons, [1988] 2 S.C.R. 495, at p. 528: “It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role.” To this end, the CA provides for the collection of duties and taxes on imported goods.\n\nThe attainment of these objectives depends on the effectiveness of the voluntary or self-reporting system provided for in the CA. To enforce the CA, Parliament has implemented civil and penal mechanisms.\n\nThe civil mechanisms include the seizure as forfeit of goods and conveyances (s. 110 of the CA), the demand by written notice or “ascertained forfeiture” (ss. 124 to 126 of the CA), and the imposition of administrative penalties (ss. 109.1 to 109.5 of the CA). The penal mechanisms, properly so called, are provided for in ss. 160 and 161 of the CA.\n\nThe offence imputed to the appellant, that he made false statements (ss. 95 and 153(a) and (c) of the CA), may give rise to a notice demanding payment (s. 124 of the CA), to criminal prosecution by way of summary conviction or indictment (s. 160 of the CA), or to both a demand for payment and criminal prosecution. On this basis, the appellant argues that a distinction as regards the nature of the imputed offence cannot be drawn based solely on the respondent’s choice of proceeding (civil or penal). Thus, since the offence may have penal consequences, it must be considered penal in nature.\n\nThis argument must be rejected.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-8", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 30–32", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "As stated by McLachlin J. (as she then was) in R. v. Shubley, [1990] 1 S.C.R. 3, at pp. 18‑19: “The question of whether proceedings are criminal in nature is concerned not with the nature of the act which gave rise to the proceedings, but the nature of the proceedings themselves” (emphasis added).\n\nIn the case at bar, the fact that the false statements could result in criminal prosecution does not in itself mean that a notice of ascertained forfeiture can properly be characterized as a penal proceeding. The fact that a single violation can give rise to both a notice of ascertained forfeiture and a criminal prosecution is irrelevant. The appropriate test is the nature of the proceedings, not the nature of the act.\n\nCameron J.A. of the Saskatchewan Court of Appeal stated the following (quoted with approval in Wigglesworth, supra, at p. 566): A single act may have more than one aspect, and it may give rise to more than one legal consequence. It may, if it constitutes a breach of the duty a person owes to society, amount to a crime, for which the actor must answer to the public. At the same time, the act may, if it involves injury and a breach of one’s duty to another, constitute a private cause of action for damages for which the actor must answer to the person he injured. And that same act may have still another aspect to it: it may also involve a breach of the duties of one’s office or calling, in which event the actor must account to his professional peers. (R. v. Wigglesworth (1984), 31 Sask. R. 153, at para. 11) (ii) Purpose of the Notice of Ascertained Forfeiture", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-9", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 33–37", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "In principle, ascertained forfeiture is a civil collection mechanism. It is used where it would be difficult or even impossible to seize goods in respect of which a customs officer believes on reasonable grounds that an offence has been committed. In such cases, rather than seizing the goods as forfeit (an in rem proceeding), the officer may demand payment of an amount of money that is determined according to the value of the goods in question.\n\nIn the instant case, the appellant submits that the purpose of ascertained forfeiture, like that of a criminal prosecution, is to punish the offender in order to produce a deterrent effect and redress a wrong done to society.\n\nThis argument must fail for three reasons.\n\nFirst, the purpose of a forfeiture mechanism is to ensure compliance with the CA by giving customs officers a timely and effective means of enforcing it. This mechanism is not designed to punish the offender. If the offender were not the actual owner of the seized property, he or she would not, in principle, be punished by the forfeiture thereof.\n\nA notice of ascertained forfeiture is served only where the property cannot be seized because, for example, it has already been exported. Only then is the offender, who is not necessarily the owner of the property, directly exposed to civil consequences. Thus, although ascertained forfeiture may in some cases have the effect of “punishing” the offender, that is not its purpose.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-10", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 38–42", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, it is true that ascertained forfeiture is intended to produce a deterrent effect. This is completely understandable in a self-reporting system. Fraud must be discouraged, and offences punished severely, for the system to be viable. However, actions in civil liability and disciplinary proceedings, which are also aimed at deterring potential offenders, nevertheless do not constitute criminal proceedings.\n\nThird, there is nothing that would indicate that the objective of ascertained forfeiture is to redress a wrong done to society. For example, s. 124 of the CA does not in any way take into account the principles of criminal liability or sentencing. I will address this point in greater detail in the next section. (iii) The Ascertained Forfeiture Process\n\nAscertained forfeiture involves a four-step administrative process.\n\nFirst, under s. 124 of the CA, a customs officer must have reasonable grounds to believe that a provision of the CA has been contravened. Once this precondition has been met, and once it has been established that it would be difficult to seize the goods and conveyances related to the customs offence, the officer may demand that the offender pay an amount of money equal to the value of the goods.\n\nSecond, the person to whom a notice of ascertained forfeiture applies has 90 days to ask the Minister to review the customs officer’s decision (s. 129(1)(d) of the CA). The Minister then serves notice of the reasons in support of the imposed sanction (s. 130(1) of the CA). Within 30 days after notice of the reasons is served, the alleged offender may make submissions and give evidence, in writing, to the Minister (ss. 130(2) and 130(3) of the CA).", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-11", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 43–47", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "Third, the Minister decides whether the ascertained forfeiture is valid (s. 131 of the CA). This decision “is not subject to review or to be . . . otherwise dealt with except to the extent and in the manner provided by subsection 135(1)” (s. 131(3) of the CA).\n\nFourth, and finally, the person who requested the Minister’s decision may, within 90 days after being notified of the decision, appeal by way of an action in the Federal Court (s. 135(1) of the CA).\n\nThis process thus has little in common with penal proceedings. No one is charged in the context of an ascertained forfeiture. No information is laid against anyone. No one is arrested. No one is summoned to appear before a court of criminal jurisdiction. No criminal record will result from the proceedings. At worst, once the administrative proceeding is complete and all appeals are exhausted, if the notice of ascertained forfeiture is upheld and the person liable to pay still refuses to do so, he or she risks being forced to pay by way of a civil action. (iv) Case Law\n\nSection 124 of the CA has not yet been interpreted by the courts. It will therefore be necessary to review similar cases in tax and customs matters to characterize the sanction provided for in this provision.\n\nFirst of all, in Canada v. Amway of Canada Ltd., [1987] 2 F.C. 131 (C.A.), the Minister of National Revenue instituted proceedings against the Amway corporation under s. 180(2) of the former Customs Act, R.S.C. 1970, c. C‑40. That provision, like s. 124 of the current Act, authorized the Minister to demand payment of an amount equal to the value of the exported property where the Act had been contravened.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-12", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 48–51", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "In that case too, the Minister wanted to examine the offender for discovery. The Federal Court of Appeal refused to authorize this, because the action to collect a fine in a civil proceeding constituted a penal action in which the defendant was a person charged with an offence. Consequently, Amway had the status of a “person charged with an offence” and was protected by s. 11( c ) of the Charter .\n\nThe decision was appealed to this Court, which reversed the decision of the Federal Court of Appeal on another ground. The Court ruled that a corporation cannot as such be a witness and therefore does not come within s. 11( c ) of the Charter . On the nature of proceedings under s. 180(2) of the former CA, Sopinka J., writing for the Court, said he was prepared to assume, “without deciding”, that the proceedings in question were such that Amway had the status of a “person charged with an offence” (R. v. Amway Corp., [1989] 1 S.C.R. 21, at p. 37).\n\nAccordingly, the appellant cannot rely on Amway in support of the conclusion that s. 124 of the current CA is penal in nature. First, s. 180(2) of the former CA dealt in a single provision with the Minister’s authority to require payment of a fine equal to the value of the unlawfully imported property and with the penal consequence of such an offence, that is, summary prosecution or prosecution on indictment.\n\nCivil and penal remedies were in a way intermingled in a single subsection. This inevitably gave the civil sanction a penal dimension. Unlike its predecessor, the new CA draws a clear distinction between seizure as forfeit (s. 124) and penal sanctions (s. 160). Moreover, in the case at bar, no criminal proceedings have been brought against the appellant.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-13", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 52–54", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "Next, the sanction provided for in s. 180(2) of the former CA was explicitly characterized as a “fine”. This term is more closely associated with the terminology used in penal matters. Section 124 of the current CA instead uses the more neutral expression “amount of money”.\n\nFinally, the remarks of Sopinka J. in Amway must not be taken out of context. Given his conclusion that a corporation cannot be a witness, his comments on the nature of the sanction imposed on Amway are necessarily restricted in scope.\n\nA number of judgments in tax matters support the conclusion that an administrative sanction is not penal in nature: see, inter alia, R. v. Yes Holdings Ltd. (1987), 48 D.L.R. (4th) 642 (Alta. C.A.); R. v. Luchuk (1987), 18 B.C.L.R. (2d) 301 (C.A.); Lavers v. British Columbia (Minister of Finance) (1989), 41 B.C.L.R. (2d) 307 (C.A.). In Time Data Recorder International Ltd. v. Canada (Minister of National Revenue), [1997] F.C.J. No. 475 (QL) (C.A.), at para. 12, Pratte J.A. correctly summarized the Canadian case law on the subject as follows: “It is common ground that seizures and forfeitures under the Customs Act are not criminal but civil proceedings and penalties.”", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-14", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 55–57", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "The case law of the United States Supreme Court has for quite some time been to the same effect. According to Brandeis J. in Helvering v. Mitchell, 303 U.S. 391 (1938), at p. 400, the forfeiture of goods or their value and any other monetary sanctions provided for under tax legislation are civil in nature, regardless of their severity: Forfeiture of goods or their value and the payment of fixed or variable sums of money are other sanctions which have been recognized as enforcible by civil proceedings since the original revenue law of 1789. . . . In spite of their comparative severity, such sanctions have been upheld against the contention that they are essentially criminal and subject to the procedural rules governing criminal prosecutions.\n\nFor these reasons, I find that the notice of ascertained forfeiture is not penal in nature, but is rather an administrative measure intended to provide a timely and effective means of enforcing the CA. (2) Does the Written Notice Demanding Payment Under Section 124 of the CA Constitute a True Penal Consequence?\n\nIn Wigglesworth, supra, at p. 561, Wilson J. wrote that “a true penal consequence which would attract the application of s. 11 [of the Charter ] is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity”. In her view, in the rare cases where the two tests conflict, the “by nature” test must give way to the “true penal consequence” test (Wigglesworth, supra, at p. 561).", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-15", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 58–61", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "Wigglesworth is one example of this sort of unusual situation. In that case, the Court held that proceedings before the Royal Canadian Mounted Police Service Court failed the “by nature” test. However, since the accused was liable to imprisonment for a term of one year, he faced a true penal consequence.\n\nIn the case at bar, the appellant, unlike Mr. Wigglesworth, does not face imprisonment should he be found to have contravened the CA.\n\nIt remains to be determined whether the payment of $315,458 demanded pursuant to s. 124 of the CA constitutes a fine that, by its magnitude, is imposed for the purpose of redressing a wrong done to society at large, as opposed to the purpose of maintaining the effectiveness of customs requirements. (i) Magnitude of the Fine\n\nThe appellant’s main argument in this regard is based on the magnitude of the amount claimed. He contends that $315,458 is six times greater than the maximum fine that could be imposed on him upon summary conviction under s. 160(a) of the CA and that it accordingly constitutes a true penal consequence.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-16", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 62–64", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "This argument is based on a false premise. There can be no doubt that the amount of $315,458 demanded from the appellant is greater than the sanction he would face in a summary conviction prosecution. However, if the appellant had been proceeded against by way of indictment, the maximum fine would have been $500,000 (s. 160(b) of the CA). In either case, moreover, the fine does not replace the ascertained forfeiture. These are two distinct consequences that are completely independent of each other. One of them, the fine, is clearly penal in nature and thus takes into account the relevant factors and principles governing sentencing; the other, being civil in nature and purely economic, is instead arrived at by a simple mathematical calculation.\n\nIn addition, forfeiture is an in rem proceeding in which the subject is the thing itself. In such a proceeding, the guilt or innocence of the owner of the forfeited property is irrelevant. The notice of ascertained forfeiture, the amount of which is established based on the estimated value of the property, is the necessary counterpart of this in rem proceeding. If the property is subsequently seized, the notice will be immediately cancelled (s. 125 of the CA). (ii) Redressing a Wrong Done to Society\n\nUnlike a criminal conviction, the demand by written notice stigmatizes no one.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-17", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 65–68", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "As has just been seen, the principles of criminal liability and sentencing are totally irrelevant when fixing the amount to be demanded. Such a notice does not result in a criminal record for either the offender or the owner of the property. Its purpose is neither to punish the offender nor to elicit societal condemnation. In short, the notice of ascertained forfeiture has neither the appearance nor the distinctive characteristics of a sanction intended to “redress a wrong done to society”.\n\nTo sum up, the notice of ascertained forfeiture does not lead to true penal consequences for the appellant. He cannot be characterized as a “person charged with an offence” within the meaning of s. 11( c ) of the Charter and therefore cannot benefit from its protection in this case. B. Is the Appellant Compelled to Be a Witness in Proceedings Against Him in Respect of an Offence With Which He Is Charged, Contrary to Section 11(c) of the Charter ?\n\nAs the appellant is not a “person charged with an offence” within the meaning of s. 11 of the Charter , there is in principle no need to consider the scope of s. 11(c). Nevertheless, it seems appropriate to do so, since the Federal Court of Appeal’s interpretation of this provision would unduly restrict its purpose.\n\nThree conditions must be met for a person charged with an offence to benefit from the protection against self-incrimination under s. 11( c ) of the Charter : (1) the person must be compelled to be a witness (2) in proceedings against that person (3) in respect of the offence.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-18", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 69–70", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this regard, the key passage from the Federal Court of Appeal’s decision reads as follows (at para. 10): In this case, the appellant is a plaintiff in an action in which, as section 135 requires, the Minister is the defendant. He is not a person charged with an offence in this proceeding. Nor is he being prosecuted or sued. In fact, he is the prosecutor in the civil law sense of the word. The proceeding he has initiated himself cannot result in any conviction, fine or penal consequence in the criminal or penal sense of the word, making him a person charged with an offence under the Charter ’s paragraph 11(c). The decision to carry out an ascertained forfeiture is already made and upheld by the Minister. The proceeding brought by the appellant to challenge the Minister’s decision is, when all is said and done, a proceeding to have the respondent’s claim and the action to collect this claim, the ascertained forfeiture, vacated.\n\nThe first condition presents no difficulties. It seems obvious that examining someone for discovery amounts to compelling that person to be a witness in proceedings against him or her. Rule 288 of the FCR provides that any part of an examination for discovery of an adverse party may be introduced into evidence at trial.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-19", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 71–74", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "As for the other two conditions, the decision of the Federal Court of Appeal, which is essentially based on the wording of the French version of s. 11(c), can be summarized as follows: since the appellant is a plaintiff, there is no poursuite (proceeding) against him. Thus, the appellant himself is the poursuivant (“prosecutor”, or plaintiff) and the proceeding was not brought in respect of the offence with which the appellant is charged, as the respondent had already made a decision. The purpose of the proceeding is, rather, to have the appellant’s debt to the respondent cancelled.\n\nWith respect, this interpretation of s. 11( c ) of the Charter risks being perceived as overly formalistic. I accordingly believe it would be preferable to address this aspect of the appeal as follows. (1) “Proceedings Against That Person”\n\nThe purpose of s. 11(c) is to protect a person charged with an offence against self-incrimination. This protection should not depend solely on the terminology associated with the procedure established by Parliament.\n\nIn the instant case, Parliament decided that an appeal from a decision of the Minister must be made by way of an action in the Federal Court (s. 135 of the CA). However, this choice of procedure does not alter the actual relationship between the parties.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-20", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 75–77", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Petit Robert (1990) defines the word “poursuite” as follows: [translation] “legal action taken against someone who has violated a law . . .” (p. 1501). In the case at bar, the customs officer, a representative of the state, served a notice of ascertained forfeiture on the appellant. There can therefore be no doubt that the service of the notice of ascertained forfeiture by the customs officer, who had reasonable grounds to believe that a provision of the CA had been contravened, constituted a “poursuite” against the appellant.\n\nFrom that moment, the appellant was required to follow the path set out by Parliament for contesting the proceeding against him. To this end, he asked the Minister to review the officer’s decision (ss. 129 and 131 of the CA) and he subsequently appealed the Minister’s decision to the Federal Court. Thus, although the appellant is designated a “plaintiff”, it is not he who actually initiated the “poursuite”. On the contrary, he is simply defending himself in a proceeding against him that was initiated by the respondent.\n\nIn the English version of s. 11( c ) of the Charter , the term “poursuite” is rendered as “proceedings”. The Oxford English Dictionary (2nd ed. 1989) defines “proceeding” as follows, at p. 545: “The instituting or carrying on of an action at law; a legal action or process; any act done by authority of a court of law; any step taken in a cause by either party” (emphasis added). It should be added that, in ss. 13 and 14 of the Charter , the word “proceedings” is rendered as “procédures” in the French version. In s. 24(2) of the Charter , “proceedings” is rendered as “instance”.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-21", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 78–82", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "This shows that the word “proceedings” has a much broader meaning than “poursuite” (see, for example, Markevich v. Canada, [2003] 1 S.C.R. 94, 2003 SCC 9, at paras. 23‑37), and it applies regardless of whether the individual seeking the protection of s. 11( c ) of the Charter is a “plaintiff” or a “defendant”.\n\nThus, although the appellant is designated a “plaintiff” in the Federal Court, it is nonetheless the respondent who initiated the proceeding (poursuite, procédure or instance) against the appellant. (2) “In Respect of the Offence”\n\nA literal interpretation of this expression implies that the proceeding must be in respect of the offence with which the appellant is charged. Relying on this assertion, the Federal Court of Appeal stated that the Minister’s decision was a thing of the past and that the purpose of the current proceeding was instead to release the appellant from his debt.\n\nFor this expression also, to understand its real meaning, the English and French versions of s. 11( c ) of the Charter must be read together. The expression “pour l’infraction qu’on lui reproche” is rendered in English as “in respect of the offence”. The key element of this provision is the existence of “some link” between the offence and the proceedings (see Markevich, supra, at para. 26).\n\nDickson J. (as he then was) stated the following in Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 39: The words “in respect of” are, in my opinion, words of the widest possible scope. They import such meanings as “in relation to”, “with reference to” or “in connection with”. The phrase “in respect of” is probably the widest of any expression intended to convey some connection between two related subject matters.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-22", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 83–87", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the case at bar, the offence imputed to the appellant consists in having made false statements contrary to ss. 95 and 153(a) and (c) of the CA. The offence gave rise to a proceeding (poursuite, procédure or instance) initiated by the respondent against the appellant. The respondent used a notice of ascertained forfeiture to demand payment of an amount of $315,458. There is accordingly no doubt that both the “proceeding” against the appellant and the appeal from the respondent’s decision are connected with the offence.\n\nIn Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 519, this Court stated that the expression “person charged with an offence” must be interpreted consistently in relation to all the paragraphs of s. 11 of the Charter .\n\nThe Federal Court of Appeal’s interpretation would unduly reduce the scope of s. 11(c). This would be true where a “person charged with an offence” was compelled to be a witness in proceedings against him or her simply because Parliament required the person to bring an action to contest a decision. The person’s status as a “plaintiff” would deprive the person of his or her constitutional rights.\n\nThis interpretation must therefore be rejected. VI Conclusion\n\nTo characterize the appellant as a “person charged with an offence” would have a significant impact on the entire body of legislation whose purpose is taxation and economic regulation. To recognize an alleged offender in these spheres as a “person charged with an offence”, even where he or she is not in fact charged, would undermine the effectiveness of the system and substantially increase the cost of administering it.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-2198-23", - "doc_type": "caselaw", - "act_code": "2004 SCC 81", - "act_short": "Martineau", - "act_name": "Martineau v. M.N.R.", - "section": "", - "citation": "Martineau v. M.N.R., 2004 SCC 81", - "marginal_note": "paras 88–90", - "heading": "Whether an ascertained-forfeiture proceeding under the Customs Act is penal and engages the right against self-incrimination", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this context, an analysis of s. 124 of the CA and its related provisions shows that the process they establish is not penal in nature and that the sanction provided for does not have true penal consequences within the meaning of Wigglesworth.\n\nTherefore, Rule 236(2) of the FCR does not violate s. 11( c ) of the Charter by requiring the appellant, as plaintiff in an action under s. 135 of the CA, to submit to an examination for discovery.\n\nFor these reasons, the Court dismissed the appeal from the bench. The respondent shall have his costs in this Court. Appeal dismissed with costs.", - "current_to": "2004-10-14", - "last_amended": "", - "history": "[2004] 3 SCR 737", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" - }, - { - "id": "scc-21317-1", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 1", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "II. Background [9] A. Facts [9] B. Judicial History [12] (1) Court of Québec (Judge Roy) [12] (2) Quebec Court of Appeal, 2024 QCCA 86 (Schrager, Healy and Bachand JJ.A.) [15] III. Issues [20] IV. Analysis [24] A. Powers of Arrest Provided for in Section 495 Cr. C. [24] B. History of Arrest Without Warrant in Canada [27] (1) Ouimet Report [28] (2) Enactment of the Bail Reform Act [31] C. Jurisprudence on the Interpretation of Section 495(2) and (3) Cr. C. [40] (1) Pre‑Charter Decisions [41] (2) Post‑Charter Decisions [48] D. Principles of Statutory Interpretation [55] E. Interpretation of Section 495(2) Cr. C.: Can Non‑compliance With Section 495(2) Cr. C. Have the Effect of Making an Arrest Without Warrant Unlawful and Thus Arbitrary Within the Meaning of Section 9 of the Charter? [58] (1) Text of Section 495(2) Cr. C. [58] (2) Context [67] (a) Relationship Between Section 495(1) and Section 495(2) Cr. C. [68] (b) Relationship Between Section 495(2) and Section 495(3) Cr. C. [73] (c) Conclusion on the Context of Section 495(2) Cr. C. [74] (3) Purpose of Section 495(2) Cr. C. [75] (4) Constitutionality of the Public Interest Criterion [80] (5) Conclusion on the Interpretation of Section 495(2) Cr. C. [82] F. Interpretation of Section 495(3) Cr. C.: Does Section 495(3) Cr. C. Apply Where a Criminal Proceeding Is Not Against the Peace Officer Who Made the Arrest? [85] (1) The Text of Section 495(3) Cr. C. Supports Two Interpretations [92] (2) Purpose of Section 495(3) Cr. C. [101] (3) Context [117] (a) Pre‑Charter Context Surrounding the Enactment of Section 495(3) Cr. C. [118] (b) The Purpose of Section 495(2) Cr. C. Is Consistent With an Interpretation of Section 495(3) Cr. C.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-2", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 1–3", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Limited to the Liability of the Peace Officer and of Any Person Responsible for That Officer [127] (4) Conclusion on the Interpretation of Section 495(3) Cr. C. [136] G. Application to the Facts [140] V. Conclusion [147] I. Overview [1] This appeal concerns the interpretation of s. 495(2) and s. 495(3) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), which govern the power of peace officers under s. 495(1) Cr. C. to make arrests without warrant. The question is whether, in a criminal proceeding, a judge can grant a motion under s. 9 of the Canadian Charter of Rights and Freedoms alleging the unlawfulness and arbitrariness of an arrest without warrant that does not meet the requirements of s. 495(2) Cr. C.\n\nIt must be acknowledged that s. 495(2) and s. 495(3) Cr. C. are not drafted in the clearest manner. The proof of this is that courts across the country disagree on the interpretation to be given to them. To decide this appeal, I rely on the modern approach to statutory interpretation, which requires that the meaning of these provisions be ascertained in light of their text, their context and their purpose.\n\nFirst, I interpret s. 495(2) Cr. C. to determine whether it imposes binding limitations on the power of a peace officer who arrests a person without warrant, such that an arrest that is not in compliance with this provision becomes unlawful. My analysis leads to the conclusion that this provision is binding and mandatory. In other words, an arrest that is contrary to s. 495(2) Cr. C. is unlawful under the Criminal Code. This provision is not merely a guideline, a practice guide or a suggestion from Parliament. On the contrary, it obliges a peace officer not to arrest a person without warrant when all of the requirements set out in s. 495(2) Cr. C. are met.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-3", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 4–5", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Second, I interpret s. 495(3) Cr. C. to determine whether its effect is to deprive an accused of the opportunity to allege an infringement of s. 9 of the Charter and to obtain a remedy under s. 24 in a criminal proceeding relating to the accused’s own criminal liability. My analysis leads me to conclude that this provision applies in very specific cases, namely where a proceeding specifically concerns the liability of the peace officer who made an arrest contrary to s. 495(2) Cr. C. and of any person responsible for that peace officer. On the one hand, s. 495(3)(a) Cr. C. applies where the proceeding is brought under the Criminal Code or any other Act of Parliament and concerns the criminal liability of the peace officer or of persons responsible for that officer. On the other, s. 495(3)(b) Cr. C. applies where the proceeding is brought under a statute that is not the Criminal Code or another Act of Parliament. This includes a civil proceeding that concerns the civil liability of the peace officer who made the arrest contrary to s. 495(2) Cr. C. or of persons responsible for that officer.\n\nIn sum, the common feature of s. 495(3)(a) and (b) Cr. C. is that the proceeding must necessarily relate to the criminal or civil conduct of a peace officer where there has been a contravention of s. 495(2) Cr. C. This therefore means, for the purposes of this appeal, that s. 495(3) Cr. C. is not applicable, since this appeal concerns a criminal proceeding relating to the criminal liability of the person arrested without warrant. Section 495(3)(a) Cr. C. thus does not nullify from the outset the chances of success of a person arrested without warrant who would like to challenge the lawfulness of his or her arrest through a voir dire based on s. 9 of the Charter.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-4", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 6–11", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 495(2) Cr. C. is mandatory in nature and allows an accused to raise, under s. 9 of the Charter in the context of a voir dire, the unlawfulness and arbitrariness of an arrest that does not comply with this provision. Moreover, s. 495(3) Cr. C., properly interpreted, cannot serve in this case to immunize an arrest contrary to s. 495(2) Cr. C., since the proceeding does not relate to the criminal liability of a peace officer or of persons responsible for that officer.\n\nThe trial judge was required in this case to hold a voir dire to determine the lawfulness of the respondent’s arrest without warrant. The respondent’s motion was not manifestly frivolous, contrary to what was decided. The failure to hold a voir dire is a reviewable error of law that warrants a new trial.\n\nI would therefore dismiss the appeal and uphold the order for a new trial made by the Quebec Court of Appeal. II. Background A. Facts\n\nOn or about March 8, 2018, the respondent, David Carignan, allegedly committed acts of a sexual nature that, according to the allegations in the indictment, satisfy the constituent elements of the offence of sexual assault under s. 271(a) Cr. C.\n\nEleven days later, on March 20, 2018, he was arrested without warrant inside his educational institution for the acts alleged against him.\n\nFollowing his arrest, peace officers took the respondent to the police station, where he was subjected to an interrogation that was recorded on video. During that interrogation, the respondent made an incriminating statement. B. Judicial History (1) Court of Québec (Judge Roy)", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-5", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 12–14", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In November 2018, before his trial began, the respondent filed a motion for exclusion of evidence and for a stay of proceedings based on ss. 7, 9 and 24 of the Charter. The respondent asked the court to exclude the incriminating statement recorded on video on the ground that his arrest on March 20, 2018, was unlawful and therefore arbitrary within the meaning of s. 9 of the Charter. According to him, the arrest without warrant was contrary to s. 495(2) Cr. C. because the police did not believe on reasonable grounds that the arrest was necessary to satisfy the public interest and because there was no risk that he would fail to attend court for his appearance.\n\nWhen the trial began, the trial judge dismissed the respondent’s motion for exclusion of evidence, thereby refusing to hold a voir dire to determine the lawfulness of the arrest under s. 495(2) Cr. C. The judge based his reasoning on an interpretation whereby an arrest without warrant that is contrary to s. 495(2) Cr. C. is nonetheless lawful through the application of s. 495(3) Cr. C. as long as the peace officer acts in compliance with s. 495(1)(a) Cr. C. Since the peace officers had believed on reasonable grounds that an indictable offence had been committed within the meaning of s. 495(1)(a) Cr. C., the judge was of the view that the respondent’s motion had no chance of success. The incriminating statement was therefore part of the evidence adduced by the Crown at the trial that followed.\n\nAt the conclusion of the trial, the judge convicted the respondent, relying notably on his incriminating statement. The respondent was sentenced to imprisonment for a term of 15 months, and a 2‑year probation order was also issued against him. (2) Quebec Court of Appeal, 2024 QCCA 86 (Schrager, Healy and Bachand JJ.A.)", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-6", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 15–18", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The respondent appealed his conviction on two grounds. First, he argued that the trial judge had erred in law by refusing to hold a voir dire on the question of the lawfulness of his arrest. Second, he alleged that the trial judge had erred in analyzing the mens rea for the offence of sexual assault.\n\nThe court, per Healy J.A., found that the interpretation of s. 495(2) and (3) Cr. C. adopted by the trial judge was incorrect.\n\nThe court stated that s. 495(2) Cr. C. “excuses an exercise of the power of arrest without warrant that does not comply with the conditions stated in section 495(1)” (para. 17). Section 495(3) Cr. C. “explicitly reserves to a person arrested without warrant the opportunity to challenge the lawfulness of the arrest upon allegation and proof” (para. 18). Refusal to hold a voir dire on this question deprives the person arrested of the benefit of s. 495(3) Cr. C., which “expressly acknowledge[s]” the possibility of holding a voir dire on the lawfulness of an arrest without warrant (para. 19).\n\nIn this case, the court held that there were valid grounds for the respondent’s request for a voir dire, as there was no apparent basis on which to conclude that s. 495(2) Cr. C. justified such an arrest. By refusing to conduct a voir dire, the trial judge had thus deprived the respondent of the opportunity to allege and establish the unlawfulness of his arrest without warrant, an opportunity that he had on a proper interpretation of s. 495(3) Cr. C.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-7", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 19–22", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Finding that the appeal should be allowed and a new trial ordered on the basis of the first ground of appeal, the court did not consider the respondent’s second ground of appeal concerning an alleged error as regards the mens rea required for the offence of sexual assault. Since that question is not before our Court, there is no need for us to address it. III. Issues\n\nThis appeal is one involving statutory interpretation. We are not dealing with a constitutional challenge to s. 495 Cr. C., nor do we have to rule on the merits of the motion filed by the respondent. Rather, the Court is called upon to determine whether it was appropriate for the trial judge to summarily deny the respondent’s request that a voir dire be held to decide the lawfulness of his arrest without warrant.\n\nAn interpretive exercise is required with respect to s. 495(2) and (3) Cr. C., because if s. 495(2) Cr. C. were interpreted as having no effect on the lawfulness of an arrest, it would then become unnecessary to consider whether s. 495(3) Cr. C. prevents the unlawfulness of that arrest from being raised in a criminal proceeding. A proper interpretation of these two provisions, starting with s. 495(2) Cr. C., is therefore essential to determine the outcome of the appeal.\n\nTwo questions can helpfully guide the interpretive analysis in this case.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-8", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 23", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "First, it must be determined whether s. 495(2) Cr. C., properly interpreted, can have the effect of making an arrest unlawful under s. 9 of the Charter. Second, if this is the case — which is what I conclude — it must be asked whether s. 495(3) Cr. C., properly interpreted, precludes an accused from alleging such an infringement of s. 9 of the Charter and seeking a remedy under s. 24 of the Charter in the accused’s own trial. IV. Analysis A. Powers of Arrest Provided for in Section 495 Cr. C.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-9", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 24", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "To properly identify the legal framework applicable to this appeal, and for ease of reference, I will reproduce in full s. 495 Cr. C., which establishes one of the powers of arrest without warrant held by peace officers and delineates the contours of this power: 495 (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) a person whom he finds committing a criminal offence; or (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. (2) A peace officer shall not arrest a person without warrant for (a) an indictable offence mentioned in section 553, (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or (c) an offence punishable on summary conviction, in any case where (d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-10", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 24–26", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of (a) any proceedings under this or any other Act of Parliament; and (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).\n\nIt appears from the foregoing that s. 495(1)(a) Cr. C. gives a peace officer a power of arrest without warrant in three situations: where (1) a person has committed an indictable offence, (2) a person is about to commit an indictable offence, or (3) the peace officer believes on reasonable grounds that a person has committed an indictable offence. But the power so conferred is not absolute.\n\nThis is because s. 495 Cr. C. also includes subss. (2) and (3). These provisions were described by both parties as limiting, circumscribing or restricting a peace officer’s discretion to make an arrest without warrant. The nature and scope of these provisions are precisely what I clarify in these reasons. B. History of Arrest Without Warrant in Canada", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-11", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 27", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The power of peace officers to make arrests without warrant, which at one time involved very broad discretion, was the subject of a major reform in which the first iterations of the provisions that are now s. 495(2) and s. 495(3) Cr. C. were enacted. At the outset of the analysis, it is important to review the circumstances that led to their enactment, focusing more specifically on the report of the Canadian Committee on Corrections (“Committee”) entitled Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections (1969) (“Ouimet Report”) and the parliamentary debates that preceded their enactment. (1) Ouimet Report", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-12", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 28", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Until 1972, the Criminal Code did not regulate the exercise of the power of peace officers to make arrests without warrant on the basis that an indictable offence had been or was about to be committed or that a criminal offence was being committed. The Criminal Code simply stated the grounds required for an arrest to be legally justified, which can now be found in s. 495(1)(a) and (b) (see Crankshaw’s Criminal Code of Canada, R.S.C. 1985 (rev. ed. (loose‑leaf)), at § 495:HIST). At the time, the power of arrest without warrant was set out in the following terms in s. 449 of the Criminal Code, R.S.C. 1970, c. C‑34 (“Cr. C. (1970)”): 449. A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence or is about to commit suicide, (b) a person whom he finds committing a criminal offence, or (c) a person for whose arrest he has reasonable and probable grounds to believe that a warrant is in force within the territorial jurisdiction in which that person is found. However, no limitation was set out at the time in the Criminal Code to narrow the scope of the former s. 449 Cr. C. (1970), as is the case with the current s. 495(2) Cr. C., titled “Limitation” (“Restriction”).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-13", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 29–30", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the 1960s, the federal government established the Committee, chaired by Justice Roger Ouimet, to study Canada’s correctional system and recommend desirable legislative changes. In 1969, the Ouimet Report was released. The Committee concluded from its survey of the powers of peace officers in Canada that these powers maintained “a reasonable balance . . . between the requirements of the general security and the protection of the fundamental rights of the individual” (p. 49). The Committee nevertheless noted that the power of peace officers to make arrests without warrant was “broad” (p. 91). The Committee was of the view that arrests without warrant were too frequent and were often not justified in the public interest, because in many cases other methods would have sufficed to secure the accused’s attendance at trial (pp. 42 and 92).\n\nThe Committee accordingly recommended that the Criminal Code be amended to incorporate public interest criteria that would govern decisions about whether to make an arrest without warrant: The Committee therefore recommends that section 435 of the Criminal Code be amended to require not only reasonable grounds to believe that the person arrested has committed or is about to commit an indictable offence but also reasonable grounds to believe that immediate arrest is necessary in the public interest and to provide that a police officer may arrest a person whom he finds committing an offence punishable on summary conviction if he has reasonable grounds for believing that immediate arrest is necessary in the public interest. [Emphasis deleted; p. 92] (2) Enactment of the Bail Reform Act", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-14", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 31–32", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "On the strength of those recommendations, the then Minister of Justice, John N. Turner, introduced Bill C‑218, which would become the Bail Reform Act, S.C. 1970‑71‑72, c. 37 (reproduced in R.S.C. 1970, c. 2 (2nd Supp.)), once it received royal assent. The purpose of that statute was to implement two legislative reforms. The first was designed to limit the use of arrest by replacing it with other methods, such as a summons or an appearance notice. The second was aimed at remedying the injustice associated with cash bail, which had the effect of penalizing people who had limited financial resources and who were therefore obliged to find a surety. It is the first of these reforms that is of interest to us here, because it forms the backdrop against which the provisions equivalent to the current s. 495(2) and (3) Cr. C. were introduced.\n\nIn the House of Commons, Minister Turner explained the reasons that had led the government to propose such a reform of the powers of arrest conferred on peace officers. He stressed the importance of maintaining public confidence in peace officers (House of Commons Debates, vol. 3, 3rd Sess., 28th Parl., February 5, 1971, at p. 3114 (Hon. J. Turner)). Although the Minister emphasized the central role of arrest in the criminal process, he acknowledged that unnecessary arrests could undermine such confidence and that the law had to provide peace officers with clear guidelines for judging whether an arrest was necessary (p. 3114). The Minister therefore said that there was a need to reform the legislation governing arrests without warrant by peace officers.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-15", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 33–34", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "One of the bill’s stated objectives was to “avoid unnecessary pre‑trial arrest and detention” (House of Commons Debates, February 5, 1971, at p. 3116 (Hon. J. Turner)). According to Minister Turner, the law then in force did not give peace officers the “flexibility or the . . . guidelines” they needed to judge whether an arrest without warrant should be made (p. 3114). In order to avoid unnecessary arrests without warrant, he believed that a peace officer “should be obliged not to arrest without a warrant where he has reasonable and probable cause to believe that the public interest may be secured by proceeding other than by arrest” (with an exception being made, of course, for cases like murder or serious offences against public order) (ibid.).\n\nDiscussing more specifically how the former s. 450(2) Cr. C. (1970) (now s. 495(2) Cr. C.) would limit the power of arrest, the Minister stated the following: . . . I assume that the criminal law in this country and every provision of it will be enforced with the best honest human judgment that it can be enforced by the police and the magistrates of this country. What this Bill does is alter the unfettered discretion of the police to arrest . . . to a discretion that he must exercise not to arrest in a number of offences where he has reasonable and probable grounds to believe that the public interest can be satisfied by not arresting. [Emphasis added.] (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 11, 3rd Sess., 28th Parl., March 4, 1971, at p. 14; see also pp. 10‑13)", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-16", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 35–36", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "That being the case, Parliament was aware of the heavy impact that those additional limitations might have on the work of peace officers. It recognized “that decisions by the police may have to be made under difficult conditions”, in other words, that peace officers might be called upon to make quick decisions in the heat of the action (House of Commons Debates, February 5, 1971, at p. 3116; see also p. 3117). It therefore sought to limit the consequences of such unnecessary arrests for peace officers themselves, notably by lessening the possibility of their conduct being the subject of criminal or penal proceedings relating more specifically to their personal liability, but also to that of any person responsible for those peace officers, such as their employer.\n\nMinister Turner explained in this regard that if a police officer made a mistake by arresting someone without warrant even though this was not permitted under the new limitations, “then that is a mistake in judgment for which the policeman will not be penalized by criminal liability. He cannot be charged criminally for false arrest” (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 8, 3rd Sess., 28th Parl., February 23, 1971, at p. 7; see also pp. 8‑9). For a person arrested in violation of the then new limitations set out in the former s. 450(2) Cr. C. (1970) (now s. 495(2) Cr. C.), the only possible remedy was an award of damages in a civil suit relating more specifically to the conduct of the peace officer who made the arrest without warrant.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-17", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 37", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "To the question of what would happen if a peace officer made an arrest contrary to s. 495(2) Cr. C., Minister Turner replied as follows: If he arrests and it later turns out that, in judgment, he did not need to arrest because the public interest would have been served just as well or better by not arresting, then that is a mistake in judgment for which the policeman will not be penalized by criminal liability. He cannot be charged criminally for false arrest. . . . That means that the person who wants to sue civilly for having been brought in to the desk and booked must establish that the policeman did have reasonable and probable grounds to believe that the public interest could be satisfied without so arresting him. Instead of the policeman having to show that he had reasonable and probable grounds for arresting, the person brought in had to show that there were reasonable and probable grounds for not arresting. In a doubtful case that gives the benefit of doubt to the policeman who has to make this snap judgment. . . . So there are two separate situations here. If there were no grounds to arrest at all then the burden of proof is on the policeman. If there were grounds to arrest but under this new Bill he did not have to arrest, then the burden of proof is on the person to show that he need not have been brought in, although there was justification for arresting him. There are two separate situations there. In other words, there are two factors that policemen have to decide. First of all is there grounds for arresting at all? Secondly, if there are grounds for arresting, are there grounds for bringing him in? On the first the burden of proof is on the policeman in civil cases, on the second the burden of proof is on the person who was brought in.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-18", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 37–39", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "[Emphasis added.] (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, February 23, 1971, at pp. 7‑9)\n\nSimilar remarks were made again by Minister Turner before the Committee, though in different terms (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 14): Subsection (3) . . . says that notwithstanding the failure of a police officer to exercise his discretion properly in accordance with the Bill — you know, we are dealing with human judgments here — if the police officer makes the wrong judgment, he is going to be protected under paragraph (a) from a criminal suit, as he is now, but he is not protected under paragraph (b) from a civil suit. All that paragraph (b) says is that he is open to a civil suit if he makes a mistake in judgment but the burden of proof is on the person who feels that he has been wronged by the exercise of that judgment. So the ultimate sanction is a civil suit and . . . I believe that the police of this country, if they accept this Bill as I believe they will be, and I am trying to listen to their objections both at the brotherhood level, and the association level, and the chiefs of police level — I think . . . they will try to live within its sphere. [Emphasis added.]\n\nThe Bail Reform Act came into force on January 3, 1972. There have been no substantive amendments to the former s. 450(2) and (3) Cr. C. (1970) since the initial enactment thereof. C. Jurisprudence on the Interpretation of Section 495(2) and (3) Cr. C.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-19", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 40–43", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Appellate courts across the country have adopted an interpretation of s. 495(2) and (3) Cr. C. that is more in line with the approach put forward by the Crown in this case. This is, in the words of Healy J.A., the “dominant view” (C.A. reasons, at para. 12, fn. 12). I propose to outline it by looking first at decisions rendered before the Charter was enacted in 1982, then at those rendered after its enactment. (1) Pre‑Charter Decisions\n\nShortly after the passage of the Bail Reform Act, the current s. 495(3) Cr. C. was considered by several appellate courts in this country. In all of those cases, one of the charges involved was that of unlawfully resisting arrest (now s. 129(a) Cr. C.; formerly s. 118(2)).\n\nIn R. v. Adams (1972), 21 C.R.N.S. 257, the Saskatchewan Court of Appeal held that s. 495(3) “must be construed as denying the right to raise a defence, based on the non‑compliance with subs. (2), in any proceedings under the Code or under any other Act of Parliament” (p. 260). The court added that, in its opinion, “because of subs. (3) no reliance can be placed on subs. (2) to establish that the peace officer, for non‑compliance with the requirements of that subsection, was not acting lawfully and in the execution of his duty” (ibid.).\n\nThat reasoning was followed by the courts of appeal of British Columbia and Alberta, respectively, in R. v. McKibbon (1973), 12 C.C.C. (2d) 66 (B.C.C.A.), at p. 70, and R. v. Fuhr, [1975] 4 W.W.R. 403 (Alta. C.A.), at p. 406.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-20", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 44–45", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In McKibbon, the respondent was charged with assaulting a peace officer with intent to resist lawful arrest, although no charge was laid against him for the underlying offence of impaired driving. The British Columbia Court of Appeal followed Adams and concluded as follows: [Subsection (3)], which specifically applies notwithstanding s‑s. (2), makes it clear that a peace officer who acts under s‑s. (1)(a) is deemed to be acting lawfully for the purposes, inter alia, of any proceedings under the Criminal Code. In my view, that means that as he is arresting without warrant with the grounds and belief set out in s‑s. (1)(a), he is still acting lawfully and his arrest is lawful. [p. 70]\n\nIn Fuhr, the Alberta Court of Appeal also followed Adams in the context of a charge of unlawfully resisting a peace officer engaged in the execution of his duty: I am of the view that the limitations set out in subs. (2) of the powers granted a peace officer under subs. (1) do not afford a defence to the present charge, in view of the deeming words found in subs. (3). Subsection (3) provides that if a peace officer is acting under subs. (1), he is deemed to be acting lawfully and in the execution of his duty for the purposes of any proceedings under the Code. [p. 406]", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-21", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 46–47", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "It goes without saying that the question of whether a motion under s. 9 of the Charter could be brought to challenge the validity of an arrest contrary to s. 495(2) Cr. C. was not addressed in those cases, as the Charter had not yet been enacted. Prior to its enactment, the recourses available to an accused who had been unlawfully arrested were very limited and amounted mainly to the possibility of raising a defence against a charge of obstruction or resisting arrest. Not only did peace officers have broad discretion at the time to make arrests without warrant, but courts could exercise their discretion to exclude evidence only in rare circumstances, where a very high threshold was met (R. v. Wray, [1971] S.C.R. 272, at p. 293; see also S. Coughlan, “Threading Together Abuse of Process and Exclusion of Evidence: How it Became Possible to Rebuke Mr. Big” (2015), 71 S.C.L.R. (2d) 415, at pp. 429‑30). Among other things, courts did not have the power — which they do today under s. 24 of the Charter— to exclude evidence on the ground that its admission would bring the administration of justice into disrepute (Wray, at p. 287, per Martland J.).\n\nThe decisions rendered by certain appellate courts in this country on the interpretation of s. 495(3) Cr. C. following the enactment of the Charter in 1982 merit particular attention. Indeed, the analysis in those decisions is based on the law applicable since the coming into force of the Charter, just like the analysis that this Court must undertake in the instant case. (2) Post‑Charter Decisions", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-22", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 48–49", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Since the advent of the Charter, most of the decisions interpreting s. 495(3) Cr. C. and its interaction with s. 9 of the Charter have found that every criminal proceeding — regardless of the identity of the accused — is a “proceedin[g] under [the Criminal Code] or any other Act of Parliament” contemplated by s. 495(3)(a) Cr. C.\n\nIn R. v. Cayer (1988), 28 O.A.C. 105, a decision rendered by the Ontario Court of Appeal in 1988, the issue was whether the effect of s. 495(3)(a) Cr. C. was that an arrest authorized by s. 495(1) Cr. C. became unlawful where the requirements of s. 495(2) Cr. C. were breached. The Ontario Court of Appeal, relying on the reasons given in Adams and McKibbon, adopted the following interpretation of s. 450(2) and (3) Cr. C. (1970) (now s. 495(2) and (3) Cr. C.) (at para. 33): . . . notwithstanding subs. (2), a peace officer exercising his power under s. 450(1) is deemed to be acting lawfully and in the execution of his duty for the purposes of any proceedings under the Criminal Code or any other Act of Parliament. Thus, a peace officer exercising his power of arrest without warrant under s. 450(1) is deemed by s. 450(3) to be acting lawfully for the purpose of any proceedings under the Code or any other Act of Parliament, even though, in arresting a person without warrant he has breached the duty imposed on him by s. 450(2) not to arrest the accused in the circumstances therein specified . . .", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-23", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 50–51", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Further on, the Ontario Court of Appeal added that “[t]he fact that the arrest may contravene s. 450(2) [now s. 495(2)] of the Code does not ipso facto make it arbitrary under s. 9 of the Charter. If the arrest does contravene s. 450(2) of the Code, it is, of course, lawful under s. 450(3)” (Cayer, at para. 46). The court ultimately concluded that there had been no contravention of s. 495(2) because it was not “unreasonable in the public interest to arrest the accused to prevent the continuation or repetition of the offence” (para. 47).\n\nNearly 30 years later, in R. v. Jowett Work, 2019 BCCA 236, 379 C.C.C. (3d) 187, the British Columbia Court of Appeal also had to interpret s. 495(3) Cr. C. In that case, the accused had been arrested without warrant for theft and, in a search incident to the arrest, the police had discovered drugs. During the voir dire to determine the lawfulness of the arrest, the trial judge found that the officers had breached the requirements of s. 495(2) Cr. C., thereby making the arrest unlawful.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-24", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 52–53", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The British Columbia Court of Appeal allowed the Crown’s appeal and admitted the evidence from the search incident to the arrest. The court noted that s. 495(3)(a) Cr. C. expressly applies “for the purpose of ‘any proceedings’ under the Criminal Code” (Jowett Work, at para. 38). In the court’s view, the effect of the provision is to make the peace officer’s conduct “lawfu[l] and the arrest . . . lawful as long as the Crown establishes that the officer had reasonable and probable grounds to arrest under s. 495(1)(a) or (b)” (para. 32). Thus, in its opinion, there was no need to consider s. 495(2) Cr. C., as any non‑compliance with that provision would not, in a criminal proceeding, render an otherwise lawful arrest unlawful, in light of the presumption of lawfulness in s. 495(3)(a) Cr. C. (para. 30).\n\nIn R. v. Veen, 2022 ABCA 350, 51 Alta. L.R. (7th) 417, the Alberta Court of Appeal in turn addressed the interpretation of s. 495(3) Cr. C. In that case, the accused had been arrested and then detained at the police station after being found by the police in the driver’s seat of his truck with an empty beer can nearby. In a voir dire based on s. 9 of the Charter held during his trial, the accused challenged the lawfulness of his arrest, believing it to be contrary to s. 495(2) Cr. C. The Alberta Court of Queen’s Bench (sitting on appeal from the decision of the Alberta Provincial Court) granted the accused’s request for a voir dire and excluded the evidence obtained following the arrest. In its opinion, “[s]ubsection (3) should not be interpreted as overriding the duty not to arrest[, because it] is relevant in instances where a police officer is facing criminal liability” (R. v. Veen, 2020 ABQB 99, 10 Alta. L.R. (7th) 192, at para. 74).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-25", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 54–55", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "For its part, the Alberta Court of Appeal was of the view that the appeal should be allowed and the evidence obtained following the accused’s arrest admitted. It found that while the police officer may have made a mistake in judgment by arresting the accused without warrant, that mistake did not negate the lawfulness of the arrest under s. 495(3)(a) Cr. C. As a result, the accused could not raise non‑compliance with s. 495(2) Cr. C. as a defence. However, the Court of Appeal specified that this type of mistake could be the subject of a civil suit or internal disciplinary measures against the police officer concerned under s. 495(3)(b) Cr. C. In support of that conclusion, the Court of Appeal relied in part on pre‑Charter case law as well as on the wording of s. 495(3)(a) Cr. C. itself and the parliamentary debates. D. Principles of Statutory Interpretation\n\nThere is now only one approach to statutory interpretation in Canada, namely the approach requiring that the words of a provision be interpreted “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also R. v. Basque, 2023 SCC 18, at para. 63; R. v. Wolfe, 2024 SCC 34). I will therefore use this approach to first determine the proper interpretation to be given to s. 495(2) Cr. C., and I will then do the same for s. 495(3) Cr. C.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-26", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 56–58", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In this case, the wording of the provisions to be interpreted concerning the power of arrest without warrant came into force nearly a decade before the enactment of the Charter, which introduced new safeguards in relation to arrest. In this context, it is important to remember that the statutory interpretation exercise is focused “on the intent of the legislature at the time of enactment and courts are bound to give effect to that intent” (Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, at para. 32 (emphasis added); see also paras. 33‑36; Perka v. The Queen, [1984] 2 S.C.R. 232, at pp. 264‑66; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 335; United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 45; P.‑A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at para. 24; R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 6.01[1]).\n\nHaving briefly outlined these principles, I turn now to the interpretation of s. 495(2) Cr. C. E. Interpretation of Section 495(2) Cr. C.: Can Non‑compliance With Section 495(2) Cr. C. Have the Effect of Making an Arrest Without Warrant Unlawful and Thus Arbitrary Within the Meaning of Section 9 of the Charter? (1) Text of Section 495(2) Cr. C.\n\nAs I indicated at the outset, the modern approach to statutory interpretation makes the text the “anchor of the interpretative exercise”, because the text specifies the means chosen by Parliament to achieve its purposes and attain its goals (Piekut v. Canada (National Revenue), 2025 SCC 13, at para. 45, quoting Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, at para. 24).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-27", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 59–60", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In general terms, s. 495(2) Cr. C. provides that a peace officer shall not arrest a person without warrant in certain circumstances, but only for a restricted number of offences. The scope of s. 495(2) Cr. C. is therefore limited — the provision applies only to hybrid offences and offences punishable on summary conviction, as well as to the indictable offences mentioned in s. 553 Cr. C. The offences referred to in s. 553 Cr. C. are indictable offences within the exclusive jurisdiction of a provincial court judge (e.g., theft (other than theft of cattle), betting, breach of a recognizance or failure to comply with a probation order). By operation of s. 34 of the Interpretation Act, R.S.C. 1985, c. I‑21, s. 495(2)(b) and s. 495(2)(c) Cr. C. also apply to offences created by legislation other than the Criminal Code, including the Controlled Drugs and Substances Act, S.C. 1996, c. 19, or other Acts of Parliament.\n\nSection 495(2) prevents a peace officer from making an arrest without warrant where two requirements are met. First, the peace officer must believe on reasonable grounds that the public interest may be satisfied without making an arrest without warrant (s. 495(2)(d)). Second, the peace officer must have no reasonable grounds to believe that, if he or she does not arrest the person without warrant, the person will fail to attend court (s. 495(2)(e)).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-28", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 61–62", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "I note, as the parties do, that s. 495(2) Cr. C. applies only when the two requirements set out in s. 495(2)(d) and (e) Cr. C. are met. The use of the word “and” at the end of the English version of s. 495(2)(d) Cr. C., and of the expressions “d’une part” and “d’autre part” in the French version of s. 495(2)(d) and (e), clearly supports such a cumulative reading. A peace officer cannot make an arrest without warrant if the requirements of s. 495(2) Cr. C. are met. However, if one of the requirements is not met, the officer can arrest a person without warrant. To conclude otherwise would in fact have the absurd consequence of preventing a peace officer from making an arrest without warrant, thereby running the risk, for example, of allowing evidence to be destroyed right before his or her eyes, even if the officer does not consider the person to be a flight risk. Parliament cannot have intended such a result.\n\nIt follows that, in a scenario where one of the conditions in s. 495(2) Cr. C. was not met, a peace officer could make an arrest without warrant under s. 495(1) Cr. C. Thus, the peace officer would be authorized to make such an arrest if he or she believed on reasonable grounds that it was necessary to do so, either to satisfy the public interest or to ensure the person’s appearance in court. Conversely, the peace officer could not make such an arrest if it was not necessary to do so in order to satisfy the public interest or to ensure the person’s attendance in court.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-29", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 63–64", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "I turn my attention now to the heart of the appellant’s argument with respect to s. 495(2) Cr. C. Does the text of this provision suggest that peace officers have a mandatory obligation to verify that the two requirements set out in s. 495(2)(d) and (e) Cr. C. are not met before making an arrest without warrant, or does it only constitute non‑binding guidelines whose purpose is simply to delineate the exercise of their discretion?\n\nThere are very strong textual indications within s. 495(2) Cr. C. that this provision is of a mandatory nature. The English text of s. 495(2) Cr. C. states that a peace officer “shall not” arrest a person without warrant where the two requirements mentioned are met. In my view, an obligation not to make an arrest can be inferred from the use of the words “shall not arrest” (“ne peut arrêter” in the French version).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-30", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 65–66", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "This Court wrote in Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535, at para. 25, that the rule of interpretation codified in s. 11 of the Interpretation Act provides that “‘[s]hall’ is mandatory language” (“[l]e présent de l’indicatif indique l’obligation”). In this case, the use of the expression “shall not” (“ne peut”) reflects Parliament’s intention to achieve its objectives (to which I will return) by imposing on peace officers a strict prohibition against arresting a person without warrant where certain cumulative conditions are met. As with many other provisions of the Criminal Code, the word “shall” (and, in French, the use of the present indicative) in s. 495(2) Cr. C. should be construed as expressing an obligation; the word “shall” should be understood to mean “must” (see, e.g., R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 16; see also Baron v. Canada, [1993] 1 S.C.R. 416, at pp. 422‑23). It thus differs from the word “may” (“pouvoir”), which generally “connotes a measure of discretion” (Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 54).\n\nIn short, the text of the provision suggests that, in practice, peace officers have an obligation, before making any arrest without warrant, to assess whether the public interest can be satisfied and the person’s attendance in court ensured in some other way. This would therefore mean that peace officers should refrain from making such an arrest where they believe on reasonable grounds that these two conditions are met. (2) Context", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-31", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 67–69", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The context of s. 495(2) Cr. C. also supports this interpretation. For a clear understanding of the scope of this provision, it is important to look first at the relationship between s. 495(1) and s. 495(2) Cr. C. and then at the relationship between s. 495(2) and s. 495(3) Cr. C. (a) Relationship Between Section 495(1) and Section 495(2) Cr. C.\n\nIn legislative drafting, it is common practice to begin by formulating a general rule and then to clarify or narrow the rule by means of more specific provisions. In such cases, the general rule and the specific rules must be read together: the specific rules qualify the general rule stated first and reveal its true scope in a particular situation (Côté and Devinat, at paras. 1074 et seq.).\n\nThis is precisely the logic underlying the relationship between s. 495(1) and s. 495(2) Cr. C. Section 495(2) Cr. C. does not create a freestanding power of arrest without warrant. This power has its normative source exclusively in s. 495(1) Cr. C. As many have already pointed out, s. 495(1) Cr. C. remains the foundation and cornerstone of the power of arrest without warrant (Jowett Work, at para. 34; Veen (C.A.), at para. 34; J. A. Scollin, The Bail Reform Act: An Analysis of Amendments to the Criminal Code Related to Bail and Arrest (1972), at p. 4). Section 495(2) Cr. C. must therefore be understood as a provision that serves to limit the scope of the general power of arrest provided for in s. 495(1) Cr. C. when certain requirements are met.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-32", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 70", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is thus incorrect to say that s. 495(2) Cr. C. permits the exercise of such a power regardless of the conditions set out in s. 495(1) Cr. C. Section 495(2) Cr. C. cannot come into play unless a peace officer first believes on reasonable grounds that an indictable offence has been or is about to be committed, the officer finds a person committing a criminal offence or the officer has reasonable grounds to believe that there is a warrant for the person’s arrest or committal, in accordance with s. 495(1) Cr. C. (Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, 48 C.C.L.T. (4th) 1, at para. 91). It logically follows that the determination of whether s. 495(2) Cr. C. applies must always begin with the question of the application of s. 495(1) Cr. C.: if the latter does not apply or is not complied with, consideration of s. 495(2) Cr. C. becomes moot.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-33", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 71–72", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In summary, s. 495(1) Cr. C. differs from s. 495(2) in that it provides that a peace officer “may arrest without warrant . . . a person” (“peut arrêter sans mandat . . . une personne”), whereas s. 495(2) Cr. C. instead says “shall not arrest a person without warrant” (“ne peut arrêter une personne sans mandat”). Section 495(1) Cr. C. is therefore permissive, because it makes a grant of powers, rights, authorizations or permissions (Interpretation Act, s. 11, the French version of which refers to “[l]’octroi de pouvoirs, de droits, d’autorisations ou de facultés”) and thus connotes the existence of “an area of discretion” (Smith & Rhuland Ltd. v. The Queen, [1953] 2 S.C.R. 95, at p. 97). The contrast between “may” (“peut”) and “shall not” (“ne peut”) in s. 495 Cr. C. reinforces the idea that Parliament’s intention was to confer a certain degree of discretion on peace officers in s. 495(1) Cr. C. but to impose an obligation or duty on them in s. 495(2) Cr. C. (see, e.g., Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 108, per La Forest J., dissenting, but not on this point).\n\nI also observe that the marginal note to s. 495(2) Cr. C. is titled “Limitation” (“Restriction”). While this marginal note is not part of the content of the provision (Interpretation Act, s. 14), it does serve as an additional indication that s. 495(2) Cr. C. should be interpreted as imposing binding limitations on the powers set out in s. 495(1) Cr. C. (b) Relationship Between Section 495(2) and Section 495(3) Cr. C.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-34", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 73–75", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Continuing with my analysis of the context of the provision, I will look at the relationship between s. 495(2) Cr. C. and s. 495(3) Cr. C. I note that the very existence of s. 495(3) Cr. C. is a contextual element of no small importance in confirming the binding and mandatory nature of s. 495(2) Cr. C. Indeed, if s. 495(2) Cr. C. had no normative import, there would have been no need to create a form of presumption of lawfulness “[n]otwithstanding subsection (2)” (“[n]onobstant le paragraphe (2)”) in s. 495(3) Cr. C. Section 495(3) Cr. C. therefore also suggests that s. 495(2) Cr. C. imposes a real obligation, since subs. (3) contains protective mechanisms in the event of non‑compliance with subs. (2). (c) Conclusion on the Context of Section 495(2) Cr. C.\n\nIn summary, an analysis of the context of s. 495(1), (2) and (3) Cr. C. reveals a coherent legislative structure in which each provision plays a complementary role. Section 495(1) Cr. C. creates a power of arrest without warrant, while s. 495(2) Cr. C. strictly regulates the exercise of this power by imposing binding limitations. The existence of s. 495(3) Cr. C. confirms the normative character of s. 495(2) Cr. C. by setting out protective mechanisms in the event of non‑compliance. (3) Purpose of Section 495(2) Cr. C.\n\nInterpreting s. 495(2) Cr. C. as limiting a peace officer’s power of arrest is also consistent with the purpose of this provision.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-35", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 76–77", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Indeed, as I mentioned above, s. 495(2) Cr. C. was enacted as part of a bill aimed at reducing “unnecessary pre‑trial arrest and detention” by limiting “discretionary injustice” (House of Commons Debates, February 5, 1971, at p. 3116; see also pp. 3114 and 3118). To achieve this objective, Parliament wanted “new duties . . . placed on the police to direct their minds to what the public interest requires”, but also wanted peace officers to be given the “flexibility or the . . . guidelines that would help [them] in judging whether or not an arrest should be made” (pp. 3114 and 3116‑17 (Hon. J. Turner)).\n\nThe appellant interprets this passage from the parliamentary debates as indicating that Parliament’s objective was to increase the discretion of peace officers to make arrests without warrant (A.F., at para. 44). I respectfully disagree.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-36", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 78", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Even though Parliament, as part of its legislative reform, equipped peace officers with new tools to avoid resorting to arrest — such as the possibility of issuing an appearance notice — its intention and the legislative objective were not to leave their discretion intact, but rather to limit it. In keeping with the stated objective of reducing unnecessary arrests without warrant, Minister Turner explained that the legislation was meant to “alter the unfettered discretion of the police to arrest” that had existed until then under the Criminal Code, so as to limit it to “a discretion that he must exercise not to arrest in a number of offences where he has reasonable and probable grounds to believe that the public interest can be satisfied by not arresting” (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 14). Thus, Minister Turner emphasized that the bill “convert[ed] the discretion into a duty not to arrest” when certain requirements were met (p. 9 (emphasis added)).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-37", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 79–81", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my opinion, Parliament intended that a peace officer’s exercise of the power of arrest without warrant be strictly regulated through the mandatory requirements of s. 495(2) Cr. C. in order to promote the public interest and ensure the person’s appearance in court. The purpose of s. 495(2) Cr. C. is therefore clear: it is to limit the discretion of police officers by identifying the situations in which an arrest without warrant is not required in order to reduce what are considered to be unnecessary arrests. Interpreting s. 495(2) Cr. C. as simply setting out guidelines would therefore be contrary to what Parliament intended, since it would not effectively assist in reducing unnecessary arrests without warrant. (4) Constitutionality of the Public Interest Criterion\n\nThe appellant argues that finding s. 495(2) Cr. C. to be mandatory would raise constitutional issues because of the overly vague nature of the public interest criterion (A.F., at paras. 53, 82 and 84). The appellant relies in particular on R. v. Morales, [1992] 3 S.C.R. 711, in which this Court held that “the criterion of ‘public interest’ as a basis for pre‑trial detention under s. 515(10)(b) violate[d] s. 11(e) of the Charter because it authorize[d] detention in terms which [were] vague and imprecise” (p. 726).\n\nHere, the Court does not have squarely before it a constitutional challenge to s. 495(2)(d) Cr. C. based on s. 7 of the Charter and the constitutional doctrine of vagueness, as it did in Morales. Nor does the Court have before it a constitutional challenge to the “public interest” criterion in s. 495(2)(d) Cr. C. under s. 9 of the Charter. In my view, this is sufficient to reject the appellant’s arguments in this regard. (5) Conclusion on the Interpretation of Section 495(2) Cr. C.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-38", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 82–83", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "I therefore find that an analysis of the text, context and purpose of s. 495(2) Cr. C. leads to the conclusion that the limitations imposed on the power of arrest without warrant are mandatory in nature. This provision requires peace officers, in order to properly exercise their discretion to arrest a person without warrant, to assess whether the arrest is justified in the public interest and whether there is a risk that the accused will not appear. When the conditions set out in para. (d), para. (e) and any of paras. (a) to (c) of s. 495(2) Cr. C. are met, an arrest without warrant is prohibited. Thus, peace officers contravene s. 495(2) Cr. C. where they fail to assess these criteria before acting or where they — wrongly — make an arrest without warrant when the conditions (if they are met) do not permit them to do so.\n\nIt follows from the above that an arrest contrary to s. 495(2) Cr. C. is unlawful because it is contrary to this law, which suffices to characterize said arrest as arbitrary within the meaning of s. 9 of the Charter. Indeed, since the enactment of the Charter in 1982, this Court has had occasion to state that an unlawful arrest or detention, including one not authorized by law, is necessarily an arbitrary arrest or detention and infringes s. 9 of the Charter (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at paras. 21‑22; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 124).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-39", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 84–85", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Since I am of the view that an arrest contrary to the law established by s. 495(2) Cr. C. results in this arrest made in violation of binding norms being unlawful, this is sufficient to characterize such an arrest as arbitrary within the meaning of s. 9 of the Charter. The question that now remains is whether the effect of s. 495(3) Cr. C. is to shield such an arrest from being found unlawful and thus arbitrary under s. 9 of the Charter, such that it would be manifestly frivolous to conduct a voir dire to determine, in a criminal proceeding (such as the trial of the respondent in this case), the lawfulness of a police arrest — as the trial judge held. F. Interpretation of Section 495(3) Cr. C.: Does Section 495(3) Cr. C. Apply Where a Criminal Proceeding Is Not Against the Peace Officer Who Made the Arrest?\n\nThe main source of disagreement between the parties with respect to s. 495(3) Cr. C. lies in para. (a) of this provision. This paragraph sets out the presumption that, notwithstanding s. 495(2) Cr. C., a peace officer who complies with s. 495(1) is “acting lawfully and in the execution of his duty” for the purposes of various proceedings, subject to certain conditions.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-40", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 86", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is not in dispute that this paragraph serves, among other things, to provide a peace officer who has made an arrest without warrant with protection in a criminal proceeding where that officer is personally facing a criminal charge for failure to comply with s. 495(2) Cr. C., despite the fact that the officer complied with s. 495(1) Cr. C. As Minister Turner explained, the bill was drafted in such a way that a peace officer could not be prevented from acting “for fear of a criminal suit in the exercise of his discretion” (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 11). It is also not in dispute that s. 495(3)(b) Cr. C. nevertheless allows a person who has been arrested and believes the arrest to be contrary to s. 495(2) Cr. C. to bring a civil suit against the peace officer, or the officer’s employer, in order to establish that the officer did not comply with the requirements of s. 495(2) Cr. C. and thus to obtain damages as a remedy (see, e.g., Hudson v. Brantford Police Services Board (2001), 158 C.C.C. (3d) 390 (Ont. C.A.); Collins v. Brantford Police Services Board (2001), 158 C.C.C. (3d) 405 (Ont. C.A.)).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-41", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 87–88", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "However, the appellant proposes a broader interpretation of this provision. He argues that s. 495(3)(a) Cr. C. is not confined to criminal proceedings in which a person — particularly the peace officer who made the arrest without warrant, but also, for example, the officer’s employer — is facing criminal liability for non‑compliance with s. 495(2) Cr. C. According to the appellant, s. 495(3)(a) applies more broadly to all criminal proceedings, including the trial of the respondent in this case. In other words, an arrest made in compliance with s. 495(1) Cr. C. would be presumed to be lawful for the purposes of “any proceedings” under the Criminal Code or any other Act of Parliament, regardless of the proceeding and the statute under which it is brought, and regardless of the identity of the accused and the basis for the charges laid against him or her. Other than in the decision under appeal before us, this interpretation is the one that has generally been adopted thus far by appellate courts in the other provinces (see for example: Veen, Jowett Work and Cayer).\n\nThe effect of such an interpretation is as follows: an arrest contrary to s. 495(2) Cr. C. will necessarily be lawful because of s. 495(3) Cr. C. and will not make an arrest arbitrary within the meaning of s. 9 of the Charter. Consequently, a motion under s. 9 of the Charter — alleging non‑compliance with s. 495(2) Cr. C. — will inevitably have to be dismissed, as it will be doomed to failure from the start.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-42", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 89–91", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In my view, when read in light of the context and purpose of the provision, its text weighs in favour of a narrow interpretation of s. 495(3)(a) Cr. C. that is confined to preventing a peace officer or any person to whom the officer reports from being held liable in a proceeding under the Criminal Code or any other Act of Parliament for non‑compliance with s. 495(2) Cr. C. This therefore means that one of the effects of s. 495(3)(a) Cr. C. is that a peace officer cannot be held criminally liable, in a criminal proceeding against the officer, for having contravened s. 495(2) Cr. C. when arresting a person without warrant. Despite its broad and general language, s. 495(3) Cr. C. applies in a very narrow and specific context, namely where the liability of a peace officer or a person responsible for that officer is in issue on the ground that the peace officer allegedly breached the requirements of s. 495(2) Cr. C., even though the officer complied with those of s. 495(1) Cr. C.\n\nSection 495(3) Cr. C. therefore does not apply in the criminal trial of the person arrested without warrant. Nor does it apply where a Charter motion is brought in the course of such a criminal trial. It follows that accused persons can assert in their own criminal trial that their arrest without warrant, which they believe to be contrary to s. 495(2) Cr. C., constitutes an infringement of the Charter.\n\nTo support this reasoning, I consider the text, context and purpose of the provision. This leads me to conclude that the interpretive approach adopted by certain appellate courts — including that of the Court of Appeal in some respects in this case — is, and I say this with great respect, incorrect. (1) The Text of Section 495(3) Cr. C. Supports Two Interpretations", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-43", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 92–94", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "I begin my analysis by focusing on the text of s. 495(3) Cr. C. Generally speaking, the language of s. 495(3) Cr. C. can be described as establishing a presumption of lawfulness. Indeed, this provision states that, notwithstanding s. 495(2) Cr. C., a peace officer acting under s. 495(1) “is deemed to be acting lawfully and in the execution of his duty” in two situations: (1) for the purposes of any proceedings under the Criminal Code or any other Act of Parliament (s. 495(3)(a) Cr. C.); and (2) for the purposes of any other proceedings, unless the person alleging a contravention of s. 495(2) Cr. C. establishes that the peace officer did not comply with the requirements of s. 495(2) Cr. C. (s. 495(3)(b) Cr. C.).\n\nThe text of s. 495(3)(b) Cr. C. is clear. The parties all agree that this provision does not prevent a person who alleges an arrest contrary to s. 495(2) Cr. C. from bringing a civil suit against the arresting peace officer or a person responsible for that officer for non‑compliance with s. 495(2) Cr. C.\n\nThis provision gives the peace officer or a person responsible for that officer the benefit of a rebuttable presumption to the effect that the officer acted lawfully and in the execution of his or her duty, that is, in compliance with the requirements of s. 495 Cr. C. This presumption can be displaced. The person arrested must be able to show that the requirements of s. 495(2) Cr. C. directing the peace officer not to make an arrest without warrant were met, in other words, that the peace officer believed on reasonable grounds that the public interest could be satisfied without so arresting the person and that there was no risk of the person failing to appear in court.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-44", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 95–97", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is possible that s. 495(3)(b) Cr. C. also covers police conduct proceedings under provincial or federal legislation enacted to that end. However, there is no need to decide this question for the purposes of this appeal.\n\nWith regard to s. 495(3)(a) Cr. C., the appellant and all of the intervening attorneys general propose a reading of the text that is related to the arrest, emphasizing the grammatical and ordinary meaning of the phrase “any proceedings under [the Criminal Code] or any other Act of Parliament” (see Veen (C.A.), at para. 50). They take the view, as the Alberta Court of Appeal found in Veen, that if Parliament had intended that s. 495(3)(a) Cr. C. essentially be confined to preventing peace officers — or their employers — from being convicted of an offence in a criminal proceeding on the basis of non‑compliance with s. 495(2) Cr. C., then Parliament could easily have said so (see also I.F., Attorney General of Ontario, at paras. 10‑22; I.F., Attorney General of Alberta, at paras. 17‑20; Veen (C.A.), at para. 50). However, they argue, Parliament did not express itself in such a narrow fashion. It is therefore clear, in their opinion, that s. 495(3)(a) Cr. C. would apply even in the criminal trial of the person arrested without warrant, like the trial of the respondent in this case, because it would be — in a broad sense — a proceeding under the Criminal Code or any other Act of Parliament.\n\nIn my view, the grammatical and ordinary meaning of s. 495(3)(a) Cr. C. also supports another interpretation, one that is more consistent with the provision’s purpose and context that I consider below.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-45", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 98–99", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "I draw attention to the wording chosen by Parliament: “. . . a peace officer acting under [s. 495(1)] is deemed to be acting lawfully and in the execution of his duty” (“. . . un agent de la paix agissant aux termes du [par. 495(1)] est censé agir légalement et dans l’exercice de ses fonctions”) (s. 495(3) Cr. C.). In light of this wording, I note that the text also supports the interpretation that s. 495(3)(a) and s. 495(3)(b) in fact require that the proceedings be directly aimed at the conduct of the peace officer who made the arrest contrary to the requirements of s. 495(2) Cr. C., which is to say that the court will look at the peace officer’s own actions to determine the liability of that officer, the officer’s employer or any other person who may have proceedings brought against him or her and be held liable for the peace officer’s conduct.\n\nFrom this perspective, the presumption of lawfulness set out in s. 495(3) Cr. C. would apply only to the peace officer’s actions for the purposes of determining the liability of the officer or of a person responsible for the officer. The lawfulness of the peace officer’s conduct (in the context of a civil liability suit or criminal prosecution) would be a very different question than the lawfulness of the arrest under the Criminal Code and the Charter.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-46", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 100", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "A plain reading of the words used in s. 495(3)(a) Cr. C. therefore reveals an ambiguity as regards the scope of this provision, in that they can reasonably support two interpretations. However, I am of the view that it is not a “real” ambiguity in the sense discussed in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 29‑30, since the true meaning of s. 495(3)(a) Cr. C. can be ascertained from the context and the purpose underlying it (La Presse inc. v. Quebec, 2023 SCC 22, at paras. 23‑24). The statutory interpretation exercise would in any event be incomplete without looking to the context and purpose of this provision (Wolfe, at para. 32; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 31). Here, the context and purpose of s. 495(3)(a) Cr. C. indicate that the presumption of lawfulness in s. 495(3) Cr. C. applies solely to the conduct of the peace officer who makes the arrest that is considered to be contrary to s. 495(2) Cr. C. In other words, they confirm that a narrow reading of the provision must be adopted. (2) Purpose of Section 495(3) Cr. C.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-47", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 101–102", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "I continue my analysis by focusing on the purpose of the provision. It is well settled that a court engaged in statutory interpretation is not required to follow any strict order in examining the text, context and purpose (Piekut, at para. 43; Bell ExpressVu, at para. 31; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 28). Here, this means that there is no obstacle to considering the purpose next in the analysis, and I will look at the context later. In my view, consideration of the purpose of s. 495(3) Cr. C. is of significant assistance in resolving the ambiguity regarding the scope of the provision, and it helpfully informs the analysis.\n\nAs I noted above, following the release of the Ouimet Report, Parliament enacted the Bail Reform Act, one of the objectives of which was to reduce unnecessary pre‑trial arrest without warrant and detention. This objective is reflected particularly in s. 495(2) Cr. C., whose purpose is — I repeat — to impose binding norms that limit the discretion of peace officers to make an arrest without warrant when certain conditions are met.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-48", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 103–104", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The purpose of s. 495(3) Cr. C., for its part, is complementary to that of s. 495(2) Cr. C. Section 495(3) Cr. C. provides some protection to peace officers in situations where, in good faith, they have made a mistake in judgment by arresting a person contrary to s. 495(2) Cr. C. For example, s. 495(3)(a) Cr. C. prevents a peace officer from being held criminally liable for an offence under the Criminal Code for having breached the requirements of s. 495(2) Cr. C., whereas — again by way of example — s. 495(3)(b) Cr. C. limits the possibility of a peace officer being held liable for such a contravention in a civil suit. This possibility is limited by the wording of s. 495(3)(b), which confirms that the onus is on the person alleging that his or her arrest was contrary to s. 495(2) Cr. C. to prove this fact.\n\nWhile they must be considered with caution, the parliamentary debates surrounding the enactment of s. 495(3) Cr. C. that I reproduced at the outset are of particular importance in this case (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 46; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 17). The same is true of the parliamentary debates that I will reproduce below (Reference re Impact Assessment Act, 2023 SCC 23, at para. 62; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 64; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 37; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 45).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-49", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 105–106", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Indeed, in the absence of an especially instructive legislative history (the provisions in question having hardly been amended since their enactment), the parliamentary debates provide relevant and reliable information concerning the purpose of the former s. 450(3) Cr. C. (1970) (now s. 495(3) Cr. C.) and the intention of Parliament. In addition, they offer helpful guidance for the interpretation of s. 495(2) and s. 495(3) Cr. C. because they reveal how these two provisions interact. I will therefore reproduce the key passages from these debates below to assist in analyzing the purpose of s. 495(3) Cr. C.\n\nI note that, before the Standing Committee on Justice and Legal Affairs, certain members raised concerns about s. 495(2) Cr. C. Given that peace officers, in the execution of their duty, are required to exercise their judgment — which is subject to human error — and to make decisions in real time, some members of the Committee feared that peace officers would not be adequately protected if they made a mistake in judgment, even if it was a mistake made in good faith.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-50", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 107", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Minister Turner responded to those concerns by stating that it was not the intention of the legislation to jeopardize the community by discouraging proper and efficient law enforcement by the police (House of Commons Debates, February 5, 1971, at pp. 3116‑17). Quite the opposite. He later added that s. 495(3) Cr. C. was specifically intended to give peace officers some protection against such mistakes in judgment. In this regard, the Minister clearly stated that if a peace officer made an arrest when it was not necessary, this would be a mistake in judgment that, under s. 495(3)(a) Cr. C., could not ground a guilty verdict in a criminal proceeding (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, February 23, 1971, at pp. 7‑9): The second concern of the police was that because the ordinary policeman was going to be required to make this judgment rather than have the judgment made by a desk sergeant or, eventually, a justice of the peace, then there ought to be some protection for the policeman from criminal or civil liability if, in good faith, he makes the wrong judgment. It is clear, first of all, that there was nothing in the first version of the bill and nothing in this version of the bill to impose criminal liability on a policeman who happened to make the wrong judgment. If he arrests and it later turns out that, in judgment, he did not need to arrest because the public interest would have been served just as well or better by not arresting, then that is a mistake in judgment for which the policeman will not be penalized by criminal liability. He cannot be charged criminally for false arrest. [Emphasis added.]", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-51", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 108–109", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The Minister reconfirmed this interpretation to be given to the phrase “any proceeding under this or any other Act of Parliament” in answer to a question from a member of the Committee (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, February 23, 1971, at p. 9): Mr. Marceau: Yes. In the first version, in clause 436, subparagraph 3, there is express mention of the fact that the . . . peace officer [h]as no criminal liability. This is not mentioned in the new version of the Bill. Mr. Turner (Ottawa‑Carleton): Yes, if you read page 7 of the new version of the Bill[, subsection (3), paragraph (a)]. a) any proceeding under this or any other Act of Parliament and . . . any other Act of Parliament, this includes the Criminal Code. Mr. Marceau: You interpret that as being a protection against any criminal proceedings. Mr. Turner (Ottawa‑Carleton): That is correct.\n\nAn analysis of the general scheme of the Criminal Code reinforces the interpretation that Parliament intended s. 450(3)(a) Cr. C. (1970) (now s. 495(3)(a)) to act as a shield in criminal proceedings relating to a peace officer’s actions in making an arrest. The interaction of this provision with ss. 25 and 247(2) Cr. C. (1970), corresponding to the current ss. 25 and 279(2) Cr. C., is enlightening.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-52", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 110–111", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "At the time s. 450(3) was enacted, s. 247(2) provided that everyone who, “without lawful authority” (“sans autorisation légitime”), confined, imprisoned or forcibly seized another person was guilty of an indictable offence and liable to imprisonment for a term of five years. By specifying in s. 450(3)(a) that a peace officer acting under s. 450(1) “is deemed to be acting lawfully and in the execution of his duty” (“est censé agir légalement et dans l’exercice de ses fonctions”) for the purposes of any proceedings under the Criminal Code, Parliament ensured that the peace officer’s actions, even if not in compliance with the requirements of s. 450(2), would not be considered to be a forcible seizure of a person “without lawful authority” (“sans autorisation légitime”) within the meaning of s. 247(2).\n\nSimilarly, like the current s. 25 Cr. C., apart from a few differences in form, s. 25 Cr. C. as it read at the time provided that “[e]very one who is required or authorized by law to do anything in the administration or enforcement of the law . . . as a peace officer or public officer . . . is, if he acts on reasonable . . . grounds, justified . . . in using as much force as is necessary for that purpose.” Again, the enactment of s. 450(3) ensured that a peace officer’s use of force remains “authorized by law” despite non‑compliance with s. 495(2).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-53", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 112", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In short, it is clear that Parliament’s intention in enacting s. 495(3)(a) Cr. C. was to protect, first and foremost, the peace officer who made an arrest without warrant contrary to s. 495(2) Cr. C., as well as any person responsible for that officer. This protection was directed in particular at proceedings in which they could be found criminally liable for non‑compliance with s. 495(2) Cr. C. Read as a whole, the debates therefore do not support the argument that the presumption of lawfulness in s. 495(3) Cr. C. applied to the arrest itself, despite what the Crown suggests in this case.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-54", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 113", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The parliamentary debates surrounding s. 495(3)(b) Cr. C. also confirm that s. 495(3) Cr. C. is concerned primarily with the liability of a peace officer and of any person responsible for that officer for failure to comply with the requirements of s. 495(2) Cr. C. Minister Turner confirmed that while s. 495(3)(b) Cr. C. leaves open the possibility of a civil suit against the peace officer who made the arrest contrary to s. 495(2) Cr. C. or a person responsible for that officer, s. 495(3)(b) nonetheless provides some protection against the civil liability that might arise from the conduct of peace officers. Indeed, this provision was drafted so as to impose on the person arrested without warrant the burden of proving that the peace officer believed on reasonable grounds that the public interest could be satisfied without arresting the person and that there was no risk of the person failing to attend court. As Minister Turner explained, “an arrested person . . . must demonstrate that the police did not carry out their new duties properly if he is to recover damages against them in civil proceedings” (House of Commons Debates, February 5, 1971, at p. 3117). The following comments by Minister Turner provide a good understanding of the operation of s. 495(3) as a whole: Subsection (3) . . . says that notwithstanding the failure of a police officer to exercise his discretion properly in accordance with the Bill — you know, we are dealing with human judgments here — if the police officer makes the wrong judgment, he is going to be protected under paragraph (a) from a criminal suit, as he is now, but he is not protected under paragraph (b) from a civil suit.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-55", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 113–114", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "All that paragraph (b) says is that he is open to a civil suit if he makes a mistake in judgment but the burden of proof is on the person who feels that he has been wronged by the exercise of that judgment. So the ultimate sanction is a civil suit and . . . I believe that the police of this country, if they accept this Bill as I believe they will be, and I am trying to listen to their objections both at the brotherhood level, and the association level, and the chiefs of police level — I think . . . they will try to live within its sphere. [Emphasis added.] (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 14)\n\nIn this regard, the Alberta Court of Appeal was correct in stating that the Minister did not indicate that “the statutory duty imposed by subsection (2) was . . . nullified” because of s. 495(3) and that he did in fact say that one of the consequences of non‑compliance with s. 495(2) was a civil suit (Veen, at para. 50). However, when he explained the mechanism of s. 495(3)(b) Cr. C., the Minister referred at all times to the lawfulness of the peace officer’s conduct, in a context where the civil or criminal liability of the officer or of persons responsible for the officer was sought for actions related to the arrest, and not to the lawfulness of the arrest itself.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-56", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 115–117", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "I pause to clarify that there is no basis for saying that the purpose of s. 495(3) Cr. C. is to “discourage persons resisting arrest where they believe they will not be convicted of the offence for which they are being arrested”, as the Saskatchewan Court of Appeal stated in R. v. Munson, 2003 SKCA 28, 172 C.C.C. (3d) 515, at para. 58. That court relied in part on Adams, McKibbon and Fuhr, which I discuss at the very beginning of these reasons, in support of its conclusion (see also Jowett Work, at paras. 33‑34). With respect, such a purpose is not apparent at any point from the parliamentary debates we have considered or from any contextual element relevant to establishing the purpose of the provision. It follows from the foregoing that the purpose underlying the enactment of s. 495(3) Cr. C. is not physical protection (i.e., when the person being arrested resists arrest by force), but rather legal protection (i.e., in the context of a lawsuit or prosecution).\n\nIn this context, it can be inferred from s. 495(3)(a) and s. 495(3)(b) Cr. C., read as a whole, that they share the same purpose, namely to provide peace officers and any person responsible for them with some protection against proceedings in which they face criminal or civil liability for an arrest contrary to s. 495(2). (3) Context\n\nOther contextual elements also support this interpretation. First, I look at the broader context by discussing the legislative landscape at the time s. 495(3) Cr. C. was enacted, and thus before the advent of the Charter. Second, I consider its immediate context, and specifically the relationship between s. 495(2) and s. 495(3) Cr. C. (a) Pre‑Charter Context Surrounding the Enactment of Section 495(3) Cr. C.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-57", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 118–120", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "The legislative landscape in which Parliament enacted s. 495(3) Cr. C. is an important contextual element. I note that this provision was enacted several years before the Charter came into force. It is therefore necessary to place s. 495(3) Cr. C. in the context of the time in order to interpret it properly. Ultimately, as we will see, the interpretation to be given to this provision was not disturbed by the advent of the Charter.\n\nWhen Parliament enacted s. 450(2) and (3) Cr. C. (1970) (now s. 495(2) and (3) Cr. C.) through the Bail Reform Act, the possibilities for accused persons to challenge the lawfulness of their arrest and obtain redress in their own criminal and penal proceedings were very limited. This was due in part to Wray.\n\nIn June 1970, shortly before the Bail Reform Act came into force, this Court affirmed in Wray that a court did not have the discretion to exclude admissible evidence simply because its admission would bring the administration of justice into disrepute, for example because the evidence had allegedly been obtained following an unlawful arrest (p. 287). A court did of course have the power to exclude evidence obtained following an unlawful arrest, but, as Martland J. explained, the threshold was very high: “It is only the allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly” (p. 293). The state of the law as set out in Wray seems to have remain unchanged until the advent of the Charter in 1982 (Coughlan, at pp. 429‑30).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-58", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 121", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Thus, at the time the first iteration of s. 450(3) Cr. C. (1970) (now s. 495(3) Cr. C.) was enacted, Parliament could not have imagined that, years later, accused persons would be able, in their own criminal trial, to challenge infringements of their constitutional rights — such as the right not to be arbitrarily detained — by asserting the unlawfulness of their arrest and seeking the exclusion of the evidence obtained in violation of those rights. The Charter had not yet been enacted and, even more to the point, this Court had obviously not recognized that an unlawful arrest could amount to an arbitrary arrest. Nor could Parliament have anticipated that, where a Charter infringement was established, accused persons would be able to seek other “appropriate and just” remedies under s. 24(1) of the Charter in their criminal trial, such as a sentence reduction or a stay of proceedings. It is accordingly very difficult, if not impossible, to ascribe to Parliament any intention, in enacting the former s. 450(3) Cr. C. (1970), of insulating an arrest contrary to s. 495(2) Cr. C. from scrutiny based on the unlawfulness of the arrest at the time it enacted the provisions in question. I therefore agree with the respondent that the wording of the former s. 450(3) Cr. C. (1970) (now s. 495(3) Cr. C.) must be interpreted in light of this reality.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-59", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 122–123", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Very recently, in Telus, I endorsed the theoretical framework outlined by my colleague Moreau J. regarding the manner in which legislation should be interpreted in response to changing circumstances (para. 155). It is understood that the modern approach allows courts “[to] appl[y] statutes to new or evolving circumstances” (para. 33; see also Interpretation Act, s. 10). It is also possible for Parliament to use “broad or open‑textured language to cover circumstances that are neither in existence nor in [its] contemplation” (Telus, at para. 33, citing R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 61, Perka, at p. 265, and Côté and Devinat, at para. 285), as might be the case with the words “any proceedings” (“toutes procédures”) used in s. 495(3) Cr. C.\n\nHowever, determining whether a provision is capable of applying to new circumstances is an interpretive question, and it must be answered by reading the text of the statute in its context and in a manner consistent with the legislature’s purpose (Telus, at para 36). Thus, even where the text of the provision is drafted in general terms suggesting that it could apply to new circumstances, courts must avoid giving it a meaning that would overreach the provision’s purpose. Otherwise, courts risk exceeding their institutional role by intruding into questions that can be better addressed by legislatures (Sullivan, at § 6.01[3]).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-60", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 124", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Moreover, a provision that uses broad and general language can be read more narrowly so that its interpretation does not overreach its purpose. R. v. Kuldip, [1990] 3 S.C.R. 618, provides an example of this. In that case, this Court was called upon to interpret the words of s. 5(2) of the Canada Evidence Act, R.S.C. 1985, c. C‑5. Relying on wording that was broader and more general, the accused proposed an interpretation of the provision that would overreach its purpose (see Sullivan, at § 9.04[4]: “. . . the guarantee sought by the accused (protection against impeachment of credibility) was not rationally related to the purpose of the provision (protection against self‑incrimination)” (emphasis added)). This Court rejected the accused’s arguments, thereby declining to adopt an interpretation of the provision that, while consistent with the grammatical and ordinary meaning of the words, “would extend beyond the purpose” of the provision (Kuldip, at p. 639). Rather, the Court found that “the protection offered by s. 5(2) . . . must be interpreted in consideration of the express purpose” — without going beyond it (p. 639).", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-61", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 125–127", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In light of the foregoing, I find it difficult to draw any definitive conclusions from the broad and general wording of s. 495(3)(a) Cr. C., especially since the consequences of such drafting were hard to foresee at the time the predecessors to s. 495(3)(a) and (b) were enacted. The mere fact that the text is framed in general terms is not a basis for concluding that Parliament necessarily intended to include [translation] “all criminal proceedings” (“toutes les procédures criminelles”) imaginable within the scope of s. 495(3)(a) (A.F., at para. 71). The same could also be said of the interpretation to be given to the expression “any other proceedings” in s. 495(3)(b) Cr. C.\n\nI therefore propose, following the example of Kuldip, to adopt an interpretation of s. 495(3)(a) Cr. C. that is consistent with but does not overreach the purpose of this provision, in other words, that applies only to proceedings under the Criminal Code or any other Act of Parliament in which a peace officer or any person responsible for that officer is actually facing liability for a breach of the requirements of s. 495(2) Cr. C. (b) The Purpose of Section 495(2) Cr. C. Is Consistent With an Interpretation of Section 495(3) Cr. C. Limited to the Liability of the Peace Officer and of Any Person Responsible for That Officer\n\nThe final contextual element that I propose to examine in support of my analysis is the relationship between s. 495(2) and s. 495(3) Cr. C. Given that s. 495(3) Cr. C. refers directly to s. 495(2) Cr. C., it is necessary to consider it.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-62", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 128–130", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "As I have already said, the structure of s. 495 Cr. C. confirms that s. 495(2) must be interpreted as a binding limitation, which narrows the scope of the discretion conferred by s. 495(1). In my view, this same structure also confirms that s. 495(3) Cr. C. must be viewed as providing some protection to peace officers, their employer or any other person who might be held liable for a peace officer’s failure to comply with s. 495(2) Cr. C.\n\nSection 495(3) Cr. C. is under the heading “Consequences of arrest without warrant” (“Conséquences de l’arrestation sans mandat”). While this marginal note is not part of the content of the provision (Interpretation Act, s. 14), it may suggest that s. 495(3) specifically concerns the “Consequences” (“Conséquences”) to be suffered by a peace officer who has contravened s. 495 (2) Cr. C. and by the officer’s principal, among others.\n\nFocusing on the words “a peace officer . . . deemed to be acting lawfully and in the execution of his duty for the purposes of” (“l’agent de la paix . . . censé agir légalement et dans l’exercice de ses fonctions aux fins”) makes it clear that s. 495(3) Cr. C. has the effect of creating a presumption to the effect that, in a proceeding relating to the conduct of a peace officer who breached the requirements of s. 495(2) Cr. C., the peace officer is presumed to have acted lawfully as long as he or she acted in compliance with s. 495(1) Cr. C., regardless of his or her failure to comply with the requirements of s. 495(2) Cr. C. On the other hand, s. 495 Cr. C. does not create any presumption with respect to the lawfulness of the arrest without warrant itself. The lawfulness of the arrest can always be challenged, even in a criminal proceeding like the trial of the respondent in this case.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-63", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 131", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Such an interpretation is in keeping with the binding nature of s. 495(2) Cr. C. Indeed, to interpret s. 495(3) Cr. C. as having the effect of shielding arrests contrary to s. 495(2) Cr. C. from any finding of unlawfulness would undercut the binding nature of this provision. It would also run directly counter to Parliament’s objective in enacting the Bail Reform Act, that is, to reduce unnecessary arrests without warrant. In other words, the more broadly s. 495(3)(a) Cr. C. is interpreted, the more the normative import of s. 495(2) Cr. C. is eroded, thereby jeopardizing the achievement of the objective sought by Parliament. It is therefore essential to avoid adopting such an interpretation and to opt instead for a proper balancing consistent with the text, context and purpose of s. 495(3)(a) Cr. C.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-64", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 132", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In the same spirit, I cannot agree with the way in which several appellate courts have interpreted the interaction between s. 495(2) and s. 495(3) to establish the scope of s. 495(3)(a) Cr. C. (see, among others, Veen (C.A.), at para. 57). For example, the British Columbia Court of Appeal wrote the following in Jowett Work about the relationship between s. 495(2) and s. 495(3) Cr. C.: . . . s. 495(3)(a) was intended to ensure that the requirements of s. 495(1) remained the focus of the power to arrest without warrant, whereas s. 495(3)(b) was intended to permit the public interest considerations to be challenged in proceedings in the civil or provincial regulatory context. Therefore, it is my view that an arrest that is lawful under s. 495(1) cannot be rendered unlawful in a criminal proceeding due only to a peace officer’s failure to properly consider the public interest in an arrest as set out in s. 495(2), and the trial judge erred in concluding that the arrest of the respondent was unlawful because the requirements of s. 495(2) had not been satisfied. [paras. 38‑39]", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-65", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "para 133", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "With respect, I believe that such an interpretation fails to consider the binding nature of s. 495(2) Cr. C. It also takes away a large part of the provision’s practical utility in reducing unnecessary arrests, which was Parliament’s objective when enacting it. On this point, I wholly agree with the sentiment expressed by Kopstein Prov. Ct. J. in R. v. Prince (1981), 61 C.C.C. (2d) 73 (Man.), when he stated the following: . . . it would seem a strange phenomenon for Parliament to have taken the initiative to enact s. 450(2) which restricts the power of arrest without a warrant for those offences referred to in s. 450(2), and then immediately thereafter by s‑s. (3) to nullify any legal or practical effect which might arise out of the operation of s‑s (2). [p. 80]", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-66", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 134–135", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "It is true, as noted by the attorneys general of Ontario and Alberta, that the combined operation of s. 495(2) and s. 495(3)(b) Cr. C. (civil action in damages) also serves to change peace officers’ conduct to some extent by encouraging them to comply with the requirements of s. 495(2) Cr. C., on pain of being sued civilly (s. 495(3)(b) Cr. C.) for non‑compliance with s. 495(2) Cr. C. The experience of provinces like Ontario and Alberta shows that complainants have been able to allege the unlawfulness of an arrest in a civil proceeding and to claim damages as a remedy. The Attorney General of Ontario cites, for example, Collins, in which the complainant alleged that his arrest was unlawful because it was contrary to s. 495(2) Cr. C. and that his right guaranteed by s. 9 of the Charter had been infringed. This is in line with Minister Turner’s statement that “the ultimate sanction is a civil suit” (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 14; see also pp. 10‑11). In this sense, I concede that it would be going too far to say that the interpretation suggested by the Crown would completely deprive s. 495(2) Cr. C. of any useful effect.\n\nThat being the case, it must be recognized that an interpretation whereby an arrest contrary to s. 495(2) Cr. C. would still be considered lawful in criminal and penal proceedings, such as the trial of the respondent in this case, would greatly diminish the deterrent effect of this imperative, such that Parliament’s objective would be not only largely exceeded but also, and above all, compromised. This interpretation must therefore be rejected. (4) Conclusion on the Interpretation of Section 495(3) Cr. C.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-67", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 136–137", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "In conclusion, s. 495(3) Cr. C. is intended to govern the liability of peace officers for failure to comply with the requirements of s. 495(2) Cr. C. Since peace officers are called upon to exercise their judgment quickly to make an arrest without warrant in circumstances that are often unpredictable, it was necessary for Parliament to establish some protection in relation to the then new limitation on their discretion introduced by s. 495(2) Cr. C.\n\nFrom this perspective, s. 495(3)(a) Cr. C. provides peace officers or any person responsible for them with greater protection when proceedings are brought against them under the Criminal Code or any other Act of Parliament by creating a presumption that peace officers are deemed to have acted lawfully and in the execution of their duty. As for s. 495(3)(b) Cr. C., it sets out the parameters for a civil suit that may be brought by a person who believes that his or her arrest was contrary to s. 495(2) Cr. C. For the purposes of such a lawsuit, the peace officer is presumed to have acted lawfully and in the execution of his or her duty unless the person arrested without warrant successfully demonstrates that the arrest was contrary to the requirements established by s. 495(2) Cr. C. Section 495(3)(b) therefore ensures that, in a civil suit against the peace officer or any person responsible for that officer for a contravention of s. 495(2), the plaintiff bears the burden of proof.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-68", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 138–140", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "I would add that such an interpretation is consistent with the Criminal Code’s special nature, which requires that it be read having regard “to liberty interests” (R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 39). Along the same lines, I noted in Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, that “[i]n a free and democratic society, police officers may interfere with the exercise of individual freedoms only to the extent provided for by law” (para. 6). Of course, this taking into account of individual freedoms must not compromise other fundamental criminal law considerations, which must be carefully balanced with these freedoms — including public safety and the public interest in ensuring that peace officers can do their work effectively and expeditiously (see CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 20).\n\nThat being the case, as we have seen, Parliament’s intention in enacting s. 450(2) and (3) Cr. C. (1970) (now s. 495(2) and (3) Cr. C.) was precisely to balance these various considerations. I therefore propose to give full effect to the balancing done by our elected representatives. In this context, preference should be given to the interpretation that best reflects this desired balance, without overstepping it. G. Application to the Facts\n\nIn light of the above interpretation, I would dismiss the appeal and uphold the order that the respondent be given a new trial. However, my reasons for reaching this result differ from those of the Quebec Court of Appeal. With great respect, let me make myself clear.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-69", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 141–142", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "Section 495(3) Cr. C. creates a presumption of lawfulness applicable to the conduct of a peace officer who has made an arrest without warrant that does not meet the requirements of s. 495(2) Cr. C. Section 495(3)(b) provides, however, for the possibility of rebutting this presumption in a proceeding not brought under the Criminal Code or any other Act of Parliament, where the person alleging the unlawfulness of the peace officer’s conduct establishes that the officer did not comply with the requirements of s. 495(2) Cr. C. The Court of Appeal’s error was in finding that the possibility of rebutting the presumption of lawfulness applied in a proceeding under the Criminal Code or another Act of Parliament contemplated by s. 495(3)(a), which distorted its entire interpretation.\n\nThus, by stating that in this case s. 495(3) Cr. C. guaranteed the respondent “the opportunity to challenge the lawfulness of the arrest upon allegation and proof” (C.A. reasons, at para. 18), the Court of Appeal erred, because in the context of determining the criminal liability of the respondent in this case — and not that of the peace officer — there was no presumption of lawfulness that applied.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-70", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 143–145", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "On this point, I agree with the analysis of the Alberta Court of Appeal in Veen to the effect that “sections 495(3)(a) and (b) were intended to operate differently and in different contexts, with subsection (a) applying to criminal matters and (b) applying to civil matters” (para. 59). It follows that the phrase “unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2)” in s. 495(3)(b) Cr. C., as the very structure of subs. (3) clearly indicates, applies only to para. (b), and its application cannot be extended to the entire subsection. There is no justification for reading into para. (a), as the Court of Appeal did, a phrase that is expressly confined to para. (b).\n\nIn summary, since the criminal proceeding brought against the respondent — specifically a charge for sexual assault — does not fall within either of the paragraphs of s. 495(3), the Quebec Court of Appeal could not base its analysis on this provision. That being said, I am of the view that this error by the Court of Appeal is not determinative. In this case, it is rather the trial judge’s refusal to hold the voir dire requested by the respondent that constitutes a reviewable error.\n\nSection 495(2) Cr. C. is mandatory and binding. Failure to comply with it may make an arrest without warrant unlawful, even if the arrest meets the requirements of s. 495(1) Cr. C. An arrest that is unlawful may, by that very fact, be characterized as arbitrary within the meaning of s. 9 of the Charter and thus provide a basis for constitutional remedies under s. 24 of the Charter.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "scc-21317-71", - "doc_type": "caselaw", - "act_code": "2025 SCC 43", - "act_short": "Carignan", - "act_name": "R. v. Carignan", - "section": "", - "citation": "R. v. Carignan, 2025 SCC 43", - "marginal_note": "paras 146–147", - "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", - "part": "Supreme Court of Canada", - "division": "", - "text": "This case does not involve any of the scenarios in which s. 495(3) applies, because the criminal or civil liability of the peace officer who arrested the respondent without warrant or of any person responsible for that officer is not in issue. The presumption of lawfulness created by s. 495(3) Cr. C. with respect to the conduct of the peace officer who made the arrest therefore does not apply, and the trial court had to hold a voir dire to determine the lawfulness of that arrest. The refusal to conduct that hearing is a reviewable error that warrants a new trial. V. Conclusion\n\nFor these reasons, I would dismiss the appeal and uphold the order for a new trial made by the Court of Appeal. Appeal dismissed.", - "current_to": "2025-12-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" - }, - { - "id": "fca-143136-1", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 1–4", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister of Citizenship and Immigration (the appellant or the Minister) appeals from the decision of Justice Michael L. Phelan of the Federal Court allowing the three respondents’ application for judicial review: 2014 FC 799. In their application, the respondents were contesting the validity of the decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB), which dismissed their appeal from the Refugee Protection Division (RPD).\n\nPursuant to subsection 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act), the judge certified the following question: What is the scope of the Refugee Appeal Division’s review when considering an appeal of a decision of the Refugee Protection Division?\n\nThe respondents, who are citizens of Kosovo and Muslim, claim that their lives were threatened by an Islamic extremist group, the Wahhabis, and that the local police were unresponsive to their requests for help. The RPD rejected their claim on the basis that, among other things, they had not satisfied their burden of providing clear and convincing evidence to rebut the presumption that state protection would be forthcoming to them in Kosovo. The Canadian Association of Refugee Lawyers and the Canadian Council for Refugees were granted intervener status to support the respondents’ position.\n\nFor the reasons that follow, I would dismiss the appeal.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-2", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 5–6", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Bujar Huruglica is married to Ms. Hanife Huruglica. Sadije Ramadani is Ms. Huruglica’s mother. As mentioned, the respondents are all citizens of Kosovo and Muslim. Following Mr. Huruglica’s and Ms. Ramadani’s employment by U.S. government contractors, they and their families were allegedly threatened in Kosovo by Islamic extremists. They testified that the Kosovar police were not responsive to their concerns and that their attempts to complain about the threats they received were not taken seriously. The respondents fled Kosovo in January 2013. They traveled through the U.S., where they stayed on a visitor’s visa, and subsequently entered Canada, where they made their refugee claims in March 2013.\n\nAlthough the respondents testified in a straightforward manner, and the RPD did not note any significant inconsistencies or omissions in their testimony, the RPD rejected their claims on the basis that the respondents’ failure to make asylum claims while in the U.S. diminished the credibility that they had subjective fear. The country conditions documentary evidence before the RPD was found not to support the respondents’ allegation that they could not get adequate state protection in Kosovo. The RPD also noted that this documentation did not support the presence and power of Islamic extremists in Kosovo. As such, there was no persuasive evidence to establish that extremist Wahhabis – or any other extremists – had any significant influence over the police or other state institutions in Kosovo.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-3", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 7–9", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Before the RAD, the respondents did not submit new evidence or seek an oral hearing. The respondents argued that the RPD’s credibility assessment was flawed, in that the RPD had failed to consider their explanation for not seeking protection in the U.S., and that it had ignored objective evidence of Islamic extremism in Kosovo. They further submitted that the RPD’s state protection analysis was deficient, as it ignored evidence of widespread corruption at all levels of government and of police inadequacy and misconduct.\n\nThe RAD indicated that there was no need to deal with the alleged error in the assessment of the respondents’ credibility, since in its view, the decision of the RPD in respect of state protection was reasonably open to the RPD and was sufficient to dismiss the respondents’ claims.\n\nTo reach its conclusion, the RAD determined the standard of review that applied to the appeal from the RPD’s decision. The respondents had made no submissions in that respect.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-4", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 10–12", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "The RAD used the framework developed in Newton v. Criminal Trial Lawyers’ Association, 2010 ABCA 399, 493 A.R. 89 [Newton] in its standard of review analysis. It found that the so-called Newton factors were better suited to the task than those set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], given that the RAD is an administrative appeal body rather than a reviewing court. The Newton factors are the following: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context.\n\nFirst, after a brief summary of some of the provisions dealing with the RPD and the RAD, the RAD concluded that: These respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. (RAD Reasons at para. 13)\n\nSecond, the RAD noted that the issues before it were factual, and that these questions were generally reviewed on a deferential standard in both appellate courts and judicial review contexts: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 89, [2009] 1 S.C.R. 339.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-5", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 13–15", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Third, the RAD held that the purpose and provisions of the IRPA suggest that the RAD is empowered to bring finality to the refugee protection process, and that it may be entitled to show less deference to the RPD in order to do so. In particular, the RAD drew from paragraph 111(1)(b) and subsections 111(2), 171(c) and 162(2) of the IRPA.\n\nTurning to the expertise and advantageous position of the RPD versus that of the RAD, the RAD underlined that the RPD always has the advantage of seeing and questioning refugee claimants, while the RAD will unfrequently have this opportunity. This “suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility, other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand”: RAD Reasons at para. 20.\n\nThe last factor considered by the RAD was the need to limit the number, length and cost of appeals and preserve the economy and integrity of RPD proceedings. This, in the RAD’s view, was the factor that outweighed the others and suggested a deferential approach to questions of fact, especially when added to the fact that the RPD has the advantage of hearing witnesses. In this respect, the RAD adopted the Alberta Court of Appeal’s conclusion in Newton “that it is ‘singularly inefficient’ for a first-level hearing to be repeated at the appellate tribunal”: RAD Reasons at para. 21. The RAD so held despite the fact that its interpretation of the legislation as a whole would lead to the conclusion that little or no deference was to be shown to the RPD findings: RAD Reasons at para. 22.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-6", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 16–18", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Having so concluded, the RAD therefore determined that the appropriate standard of review in this appeal was that of reasonableness, as defined in Dunsmuir and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]. The RAD did not consider other alternatives, including the standard of palpable and overriding error set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen].\n\nIn its decision on the merits of the appeal, the RAD closely examined the reasoning offered by the RPD, as well as the arguments presented by the respondents. The RAD noted that in addition to the objective evidence cited by the RPD, there was further objective evidence supporting the RPD’s conclusion on the adequacy of state protection. It noted that the objective evidence before the RPD was “mixed” , in that it set out deficiencies in the functioning of government institutions, but also reported on steps taken to improve the quality of law enforcement which had concrete results. This documentation also showed that the Kosovar population trusted its national police service and was largely satisfied with the police’s work.\n\nHaving noted that local failures to provide effective policing do not amount to a lack of state protection unless such failures are situated by documentary evidence within a broader pattern of state inability or refusal to extend protection, the RAD reviewed the actual efforts made by the respondents with their local police and concluded that it was not unreasonable for the RPD to expect the respondents to do more than make an initial approach like they had done.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-7", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 19–20", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "In his reasons for granting the application for judicial review, the judge held that the RAD’s conclusion as to its role on appeal was reviewable on the standard of correctness. He justified this choice based on the fact that this question of law is one of general interest to the legal system as a whole that had particular significance outside the refugee law context. He noted that “setting the standard of review is a legitimate aspect of the superior court’s supervisory role”, and that both the Alberta Court of Appeal and the Nova Scotia Court of Appeal applied the standard of correctness to review a similar issue: Newton; Halifax (Regional Municipality) v. United Gulf Developments Ltd., 2009 NSCA 78 [United Gulf]. The judge also mentioned that determining its standard of review fell outside the scope of the RAD’s expertise and experience, even if it involved the interpretation of the IRPA, the RAD’s home statute. For these reasons, the judge distinguished the case before him from that of Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, 2011 3 S.C.R. 654 [Alberta Teachers].\n\nThe judge then held that the RAD had erred in applying the standard of reasonableness to its review of the RPD decision. He noted that this standard was adopted to recognize the division of powers between the executive and the judiciary, a concept that is of “lesser importance and applicability” in this case, which involves an administrative appeal body: Federal Court Reasons at para. 43. In the judge’s view, the relationship between the RAD and the RPD “is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal”: Federal Court Reasons at para. 44.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-8", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 21–22", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "The judge held that it may be appropriate to give deference to the RPD’s findings of fact when they turn on a witness’ credibility, but that this was not the case in the application before him. In respect of country conditions documentary evidence, the judge found that the RAD had equal or greater expertise than the RPD.\n\nHaving reviewed the relevant legislation and its purpose, and having compared the role of the RAD to that of the Immigration Appeal Division (IAD), the judge concluded as follows: [54] Having concluded that the RAD erred in reviewing the RPD’s decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD’s decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a “palpable and overriding error”.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-9", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 23–24", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "The questions to be determined are: a) What is the standard of review to be applied by this Court, particularly in respect of the certified question? b) What was the proper standard of review to be applied by the judge to the issue before him? c) Did the judge properly apply this standard, that is, did the RAD make a reviewable error in defining the “scope of [its] review when considering an appeal of a decision of the RPD”? I note that this issue is narrower than the question certified by the judge, as the RAD’s assessment in the present case did not involve a question of law, nor raise an issue relating to the credibility of oral evidence heard by the RPD.\n\nWith respect to the certified question, which is set out at paragraph 2, I will simply answer the question that is determinative of this appeal, for this is the only question that should have been properly certified under section 74(d) of the IRPA.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-10", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "The most relevant provisions of the IRPA are reproduced here, while other provisions referred to in these reasons are included in Appendix A: Objectives and Application Objet de la loi Objectives — refugees Objet relatif aux réfugiés 3. (2) The objectives of this Act with respect to refugees are 3. (2) S’agissant des réfugiés, la présente loi a pour objet : (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; a) de reconnaître que le programme pour les réfugiés vise avant tout à sauver des vies et à protéger les personnes de la persécution; (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement; b) de remplir les obligations en droit international du Canada relatives aux réfugiés et aux personnes déplacées et d’affirmer la volonté du Canada de participer aux efforts de la communauté internationale pour venir en aide aux personnes qui doivent se réinstaller; (c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution; c) de faire bénéficier ceux qui fuient la persécution d’une procédure équitable reflétant les idéaux humanitaires du Canada; (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; d) d’offrir l’asile à ceux qui craignent avec raison d’être persécutés du fait de leur race, leur religion, leur nationalité, leurs opinions politiques, leur appartenance à un", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-11", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "groupe social en particulier, ainsi qu’à ceux qui risquent la torture ou des traitements ou peines cruels et inusités; (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings; e) de mettre en place une procédure équitable et efficace qui soit respectueuse, d’une part, de l’intégrité du processus canadien d’asile et, d’autre part, des droits et des libertés fondamentales reconnus à tout être humain; (f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; f) d’encourager l’autonomie et le bien-être socioéconomique des réfugiés en facilitant la réunification de leurs familles au Canada; (g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and g) de protéger la santé des Canadiens et de garantir leur sécurité; (h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals. h) de promouvoir, à l’échelle internationale, la sécurité et la justice par l’interdiction du territoire aux personnes et demandeurs d’asile qui sont de grands criminels ou constituent un danger pour la sécurité.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-12", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Appeal to Refugee Appeal Division Appel devant la Section d’appel des réfugiés Appeal Appel 110 (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection. 110 (1) Sous réserve des paragraphes (1.1) et (2), la personne en cause et le ministre peuvent, conformément aux règles de la Commission, porter en appel — relativement à une question de droit, de fait ou mixte — auprès de la Section d’appel des réfugiés la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile. Restriction on appeals Restriction (2) No appeal may be made in respect of any of the following: (2) Ne sont pas susceptibles d’appel : (a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national; a) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile d’un étranger désigné; (b) a determination that a refugee protection claim has been withdrawn or abandoned; b) le prononcé de désistement ou de retrait de la demande d’asile; (c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded; c) la décision de la Section de la protection des réfugiés rejetant la demande d’asile en faisant état de l’absence de minimum de fondement de la demande d’asile ou du fait que celle-ci est manifestement infondée; (d) subject to the regulations, a decision of the Refugee Protection Division in respect of", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-13", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "a claim for refugee protection if d) sous réserve des règlements, la décision de la Section de la protection des réfugiés ayant trait à la demande d’asile qui, à la fois : (i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and (i) est faite par un étranger arrivé, directement ou indirectement, d’un pays qui est — au moment de la demande — désigné par règlement pris en vertu du paragraphe 102(1) et partie à un accord visé à l’alinéa 102(2)d), (ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division; (ii) n’est pas irrecevable au titre de l’alinéa 101(1)e) par application des règlements pris au titre de l’alinéa 102(1)c); (d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1); d.1) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile du ressortissant d’un pays qui faisait l’objet de la désignation visée au paragraphe 109.1(1) à la date de la décision; (e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased; e) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande du ministre visant la perte de l’asile; (f) a decision of the Refugee Protection Division", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-14", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection. f) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande du ministre visant l’annulation d’une décision ayant accueilli la demande d’asile. Procedure Fonctionnement (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d’audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s’agissant d’une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. Time limits Délais (3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations. (3.1) Sauf si elle tient une audience au titre du paragraphe (6), la section rend sa décision dans les délais prévus par les règlements.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-15", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Evidence that may be presented Éléments de preuve admissibles (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Exception Exception (5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister. (5) Le paragraphe (4) ne s’applique pas aux éléments de preuve présentés par la personne en cause en réponse à ceux qui ont été présentés par le ministre. Hearing Audience (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (6) La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; (b) that is central to the decision with respect to the refugee protection claim; and b) sont essentiels pour la prise de la décision relative à la demande d’asile; (c) that, if accepted, would justify allowing or rejecting the refugee protection claim.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-16", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "c) à supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas. Decision Décision 111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. 111 (1) La Section d’appel des réfugiés confirme la décision attaquée, casse la décision et y substitue la décision qui aurait dû être rendue ou renvoie, conformément à ses instructions, l’affaire à la Section de la protection des réfugiés. (1.1) [Repealed, 2012, c. 17, s. 37] (1.1) [Abrogé, 2012, ch. 17, art. 37] Referrals Renvoi (2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (2) Elle ne peut procéder au renvoi que si elle estime, à la fois : (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and a) que la décision attaquée de la Section de la protection des réfugiés est erronée en droit, en fait ou en droit et en fait; (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. b) qu’elle ne peut confirmer la décision attaquée ou casser la décision et y substituer la décision qui aurait dû être rendue sans tenir une nouvelle audience en vue du réexamen des éléments de preuve qui ont été présentés à la Section de la protection des réfugiés.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-17", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Provisions that Apply to All Divisions Attributions communes Sole and exclusive jurisdiction Compétence exclusive 162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. 162 (1) Chacune des sections a compétence exclusive pour connaître des questions de droit et de fait — y compris en matière de compétence — dans le cadre des affaires dont elle est saisie. Procedure Fonctionnement (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité. Refugee Appeal Division Section d’appel des réfugiés Proceedings Procédure 171 In the case of a proceeding of the Refugee Appeal Division, 171 S’agissant de la Section d’appel des réfugiés : (a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal; a) la section avise la personne en cause et le ministre de la tenue de toute audience; (a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions; a.1) sous réserve du paragraphe 110(4), elle donne à la personne en cause et au ministre la possibilité, dans le cadre de toute audience, de produire des éléments de preuve, d’interroger des témoins et de présenter des observations; (a.2) the Division is not bound by any legal or", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-18", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "technical rules of evidence; a.2) elle n’est pas liée par les règles légales ou techniques de présentation de la preuve; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; a.3) elle peut recevoir les éléments de preuve qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision; (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal; a.4) le ministre peut, en tout temps avant que la section ne rende sa décision, sur avis donné à celle-ci et à la personne en cause, intervenir dans l’appel; (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal; a.5) il peut, en tout temps avant que la section ne rende sa décision, produire des éléments de preuve documentaire et présenter des observations écrites à l’appui de son appel ou de son intervention dans l’appel; (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; and b) la section peut admettre d’office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation; (c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-19", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 25–27", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "trial court. c) la décision du tribunal constitué de trois commissaires a la même valeur de précédent pour le tribunal constitué d’un commissaire unique et la Section de la protection des réfugiés que celle qu’une cour d’appel a pour une cour de première instance. [Emphasis added] [Je souligne]\n\nWhen reviewing a decision of the Federal Court on a judicial review application, this Court must determine if the judge chose the appropriate standard(s) of review for the issue(s) before him and if he applied it (them) correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, 2013 2 S.C.R. 559 [Agraira]. The latter involves “stepping into the shoes” of the judge. This Court’s focus will thus be on the decision of the RAD.\n\nThat said, the interveners particularly insisted that this Court should give the correct answer to questions that have been certified pursuant to subsection 74(d) of the IRPA. In their written and oral submissions, they relied on this Court’s decision in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paras. 30-37, [2015] 1 F.C.R. 335. However, since then, the Supreme Court has reversed this decision: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, 391 D.L.R. (4th) 644 [Kanthasamy]. The Supreme Court confirmed that despite the fact that a certified question may well be of general importance to the refugee law system, it is not a type of question that falls within the exceptions to the application of the standard of reasonableness: Kanthasamy at para. 44.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-20", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 28–29", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Kanthasamy will obviously have a tremendous impact, given that for many years, the Federal Court resorted to the certification process under subsection 74(d) to settle divergent interpretations or disagreements on legal issues of general importance. This Court’s providing the correct answer to certified questions appears to have been welcomed, particularly by the IAD and the RPD, who saw it as helpful in carrying out their functions.\n\nThe legislator is obviously empowered to set the standard of review that it wants to see applied to questions certified pursuant to subsection 74(d) of the IRPA. However, this must be done very clearly. Should the legislator wish to continue the system that was in place before Kanthasamy, it would be required to amend the IRPA and clarify its intention that certified questions be reviewed on a correctness standard.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-21", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 30", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant strongly argues that the judge chose the wrong standard of review. The judge’s conclusion in that respect, as well as the precedents on which he relied (Newton and United Gulf), did not take into consideration all of the relevant Supreme Court of Canada decisions – especially those issued since 2011. Neither the judge nor the other two provincial courts of appeal turned their mind to the presumption that reasonableness applies to all questions of law arising from the interpretation of an administrative body’s home statute: see, for example, McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 [McLean]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; and Canadian National Railway v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 [CN v. Canada]. The Minister submits that the judge misconstrued the limited exceptions where the standard of correctness may be applied. I agree with these submissions.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-22", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 31–32", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "With all due respect to the judge and his colleagues in the Federal Court who have agreed with his selection of standard of review, I simply cannot conclude that a question of law involving the interpretation of an administrative body’s home statute so as to determine its appellate role has any precedential value outside of the specific administrative regime in question: see, among others, Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, [2014] F.C.J. No. 740; Yetna v. Canada (Citizenship and Immigration), 2014 FC 858, [2014] F.C.J. No. 906; Spasoja v. Canada (Citizenship and Immigration), 2014 FC 913, [2014] F.C.J. No. 920 [Spasoja]; Bahta v. Canada (Citizenship and Immigration), 2014 FC 1245, [2014] F.C.J. No. 1278; Sow v. Canada (Citizenship and Immigration), 2015 FC 295, 252 A.C.W.S. (3d) 316; Bellingy v. Canada (Citizenship and Immigration), 2015 FC 1252, 260 A.C.W.S. (3d) 566. In fact, this logically relates to the argument put forth by the respondents and the interveners that it is not useful to look at decisions regarding the role of administrative appeal bodies other than those created under the IRPA: see also the Federal Court Reasons at para. 53.\n\nJust as legal principles applicable to cost awards and to time limitations have been found to fall within the expertise of the administrative bodies involved in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para. 25, [2011] 3 S.C.R. 471 and McLean at para. 21, defining the scope of its appellate function (or its standard of review) must be within the RAD’s expertise.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-23", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 33–36", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "I cannot agree with the respondents’ position that the issue before the judge was a true jurisdictional question. The respondents framed the issue as involving the overlapping ability of both the RPD and the RAD to exercise their sole and exclusive jurisdictions in making findings of fact, law and mixed fact and law on the same set of evidence. However, the Supreme Court has warned against an expansive interpretation of what it deems to be “true questions of jurisdiction”, as well as questions of overlapping or competing jurisdiction between two administrative bodies. In my view, there is no question here that falls under the scope of such exceptions. I agree with the position taken by other judges of the Federal Court, such as Justice Luc Martineau in Djossou v. Canada (Citizenship and Immigration), 2014 FC 1080, [2014] F.C.J. No. 1130 [Djossou] and Justice Jocelyne Gagné in Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, [2014] F.C.J. No. 1116, that this is not a question of true vires.\n\nLastly, the Supreme Court made it clear in Kanthasamy that a question of general importance to the refugee law system does not fall under any of the other exceptions to the standard of reasonableness set out in Dunsmuir.\n\nI thus conclude that the judge erred in his selection of the standard of review applicable to the case before him, and that the proper standard ought to be that of reasonableness.\n\nBefore embarking on a statutory interpretation analysis, it is important to delineate what is in dispute before us from what is not.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-24", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 37–38", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is not disputed that the role of the RAD is not to review RPD decisions in the manner of a judicial review. All the parties agree that the process before the RAD is a “hybrid appeal”. The parties have also agreed that in respect of questions of law, the RAD should intervene if the RPD erred. That is, it must apply the correctness standard. In fact, and as explained below, one of the roles of the RAD is to develop a coherent national jurisprudence.\n\nWhat the parties disagree on is what a “hybrid appeal” means here, and what the RAD’s role is in respect of questions of fact and mixed fact and law.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-25", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 39–40", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "According to the Minister, the judge was wrong to the extent that his reasons can be interpreted as describing an appeal to the RAD as a de novo appeal. Indeed, the Minister submits that when the RAD does not hold a hearing and decides the issues raised by a claimant or the Minister on the basis of the record before the RPD (subsection 110(3) of the IRPA), the RAD is truly acting as an appellate court. Therefore, it should not carry out an independent assessment of the claim. Rather, the Minister says that the RAD should restrict its intervention to cases where the RPD made an unreasonable finding or, in the alternative, a palpable and overriding error: Appellant’s Memorandum of fact and law (MFL) at paras. 78-81. The Minister argues that the reasoning of the Court in Spasoja and its conclusion as to the role of RAD should be followed, because it preserves the integrity of the RPD process: Appellant’s MFL at para. 30. The Minister does not dispute that less deference, if any, would be owed in the relatively rare cases where the RAD holds a hearing pursuant to subsection 110(6) of the IRPA (see paragraph 110(6)(c) in particular). It is in that sense only that the appeal is a hybrid appeal in the Minister’s view.\n\nOn the other hand, the respondents and the interveners support the judge’s findings at paragraphs 54 and 55 of his reasons. In fact, in their view, a finding of error should not be a pre-condition for all appellate intervention by the RAD: Respondents’ MFL at para. 51.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-26", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 41–43", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "A few comments as to how I approached my task and what I consider necessary to include in my reasons are also warranted. In Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237 at para. 45, 392 D.L.R. (4th) 351, I indicated that it is sometimes difficult to apply the standard of reasonableness to pure questions of statutory interpretation, and that further guidance from the Supreme Court would be welcomed as to the type of analysis that courts should perform in such cases.\n\nThe parties referred to the conflicting approaches and conclusions reached by Federal Court judges on the issue before us. Thus, to ensure that I understood the various approaches to interpreting the relevant provisions that were adopted below, I reviewed all such Federal Court decisions, as well as a good sample of RAD decisions dealing with the issue (especially following the judge’s decision in the present case).\n\nHowever, I gather from the Supreme Court decision in Kanthasamy that there is no real need for me to engage in a comparative analysis to explain whether or not an alternative statutory interpretation is reasonable. Section 25 of the IRPA was construed for many years by many administrative and judicial decision-makers differently from how it was ultimately construed by our highest Court in Kanthasamy. Despite this, the Supreme Court felt no need to refer to these alternative constructions before concluding that section 25 of the IRPA bore only one reasonable interpretation, and that the decision under review was therefore unreasonable.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-27", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 44–45", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "This approach appears to be particularly well suited to the question before us in the present appeal. I agree with the position advanced by Dr. Paul Daly that the very nature of the question (that is, what role did the legislator intend the RAD to play) implies that it cannot have many answers: Paul Daly, “Les appels administratifs au Canada” (2015) 93 Can. Bar Rev. 71 at 105 [Les appels administratifs au Canada]. Accordingly, the range of legally acceptable outcomes will necessarily be narrow. In fact, as will be explained, it is my view that the legislative intent is not ambiguous. The controversy in RAD and Federal Court decisions can be more accurately described as a disagreement over whether to import either the standard from a judicial review of an administrative action (Dunsmuir) or an appellate court’s review of a lower court decision (Housen) into the RAD’s review of an RPD decision.\n\nI also note that in this particular case, the RAD did not have the benefit of any submissions in respect of its appellate role, nor of a record which included the legislative evolution and history of the relevant IRPA provisions. Further, it appears that the RAD was one of the first, if not the first, administrative appeal bodies outside of Alberta to rely on the Newton factors. This was mentioned by the British Columbia Supreme Court in BC Society for the Prevention of Cruelty to Animals v. British Columbia (Farm Industry Review Board), 2013 BCSC 2331 at para. 31, [2014] B.C.W.L.D. 966 [BC Society], where the B.C. Supreme Court declined to follow Newton.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-28", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 46–48", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "I do not find the decision in Newton particularly useful. I believe that the determination of the role of a specialized administrative appeal body is purely and essentially a question of statutory interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context. An exercise of statutory interpretation requires an analysis of the words of the IRPA read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the IRPA and its object (Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983)). The textual, contextual and purposive approach mandated by modern statutory interpretation principles provides us with all the necessary tools to determine the legislative intent in respect of the relevant provisions of the IRPA and the role of the RAD.\n\nThe principles which guided and shaped the role of courts on judicial review of decisions made by administrative decision-makers (as set out in Dunsmuir at paras. 27-33) have no application here. Indeed, the role and organization of various levels of administrative decision-makers do not put into play the tension between the legislative intent to confer jurisdiction on administrative decision-makers and the constitutional imperative of preserving the rule of law.\n\nWith all due respect to the contrary view, it would also be inappropriate to import the considerations set out in Housen, since the adoption of the high level of deference afforded by appellate courts of law to lower courts of law on questions of fact and mixed fact and law was mainly guided by judicial policy: Housen at paras.16-17.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-29", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 49–52", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "When the legislator designs a multilevel administrative framework, it is for the legislator to account for considerations such as how to best use the resources of the executive and whether it is necessary to limit the number, length and cost of administrative appeals. As will be discussed, the legislative evolution and history of the IRPA shed light on the policy reasons that guided the creation of the RAD and the role it was intended to fulfil. These policy considerations are unique to the RPD and the RAD. Thus, one should not simply assume that what was deemed to be the best policy for appellate courts also applies to specific administrative appeal bodies.\n\nTo be clear, I am not saying that the standard of reasonableness will never apply in appeals to administrative appeal bodies. In fact, there are examples where the legislator clearly expresses an intention that such a standard be applied: see, for example, subsection 18(2) and section 33 of the Commissioner’s Standing Orders (Grievances and Appeals) Regulation, SOR/2014-289, adopted pursuant to the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10; subsection 147(5) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (see Appendix A). This last provision was reviewed and construed by this Court in Cartier v. Canada (Attorney General), 2002 FCA 384 at paras. 6-9, [2003] 2 F.C.R. 317.\n\nRather, what I am saying is that one cannot simply decide that this standard will apply on the basis of one’s own assessment of factors (e) and (f) listed in Newton (see paragraphs 10, 15 and 16 above). One must seek instead to give effect to the legislator’s intent.\n\nWith this in mind, I will now proceed with my statutory analysis, looking first at the relevant purpose and object of the IRPA.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-30", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 53–54", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "The many objectives of the IRPA are expressly set out in subsection 3(2) of the IRPA (see paragraph 25 above). The Minister focuses particularly on paragraph 3(2)(e), which refers to the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. This is obviously very relevant when one considers the functions of the RPD and the RAD. That said, one should always keep in mind that the very first objective of the IRPA (paragraph 3(2)(a)) is to recognize that the refugee program is about saving lives and offering protection to the displaced and persecuted. This may be what prompted Robert Thomas to write that decision-making in respect of refugee claims is “perhaps the most problematic adjudicatory function in the modern state”: Robert Thomas, Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (Oxford: Hart Publishing, 2011) at 48, cited in Les appels administratifs au Canada at 95 fn 103.\n\nThe IRPA creates two distinct divisions of the IRB to deal with refugee claims. The RPD plays a primary role in the refugee claims determination process, for it must hold a hearing in respect of every refugee claim: subsection 170(b) of the IRPA. It must also determine in advance the issues that will need to be addressed at its hearing. At the hearing, the member of the RPD plays a crucial role, quite distinct from that of a judge. Most of the time, he or she questions the claimant before he or she is examined by his or her own counsel, or cross-examined by counsel for the Minister, if any.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-31", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 55–56", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "The RPD is the final decision-maker in respect of all claims listed in subsection 110(2) of the IRPA. The respondents further point out that the RPD was in fact the final decision-maker in about 80% of the refugee claims assessed in 2013: Respondents’ MFL at para. 53; The Refugee Appeal Division: Presentation to the Toronto Regional Consultative Committee by Ken Atkinson (February 5, 2014), Appellant’s Appeal Book, Volume 1, Tab 7 at 68.\n\nWhen dealing with an appeal, the RAD has essentially the same powers as the RPD: see sections 162 and 171 of the IRPA. For example, the RAD has the same ability as the RPD to take “judicial notice of any facts that may be judicially noticed and of any other generally recognized facts, and information or opinion that is within its specialized knowledge”: subsection 171(b) of the IRPA. Nevertheless, there are a few important distinctions between the RAD and the RPD. First, the RAD will rarely hold a hearing: subsection 110(6) of the IRPA. Although it may consider any new documentary evidence submitted by the Minister, it can only accept new evidence as defined in subsection 110(4) from a refugee claimant (See Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. Moreover, 10% of its members, as well as its vice-president, must be lawyers or notaries: subsection 153(4) of the IRPA. When an appeal is heard by three members of the RAD, their decision has the same precedential value that an appellate court decision has for a trial court. Such a decision binds all RPD members, as well as any one-member panel of the RAD: subsection 171(c) of the IRPA.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-32", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 57–59", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "The IRPA also provides for a similar two-level process in respect of other immigration matters. In particular, appeals from a number of first-level decision-makers are made to another IRB division: the IAD. The wording of paragraph 67(1)(a) of the IRPA, which describes when the IAD can intervene, is similar to that of paragraph 111(2)(a) (see Appendix A). However, I do not find it useful to say more about the IAD, because the cases discussing the IAD raised by the Minister are outdated: they are either old cases that were released before the IRPA came into force; or they are cases which were released after the IRPA came into force but which rely on the old cases. Both interpret language on when the IAD can intervene that is not current, and provide no analysis of the words “wrong in law or fact or mixed law and fact” found at subsection 67(1)(a).\n\nSections 110 and 111, reproduced above, deal with appeals from the RPD to the RAD. Subject to my comments with respect to paragraph 111(2)(b), I generally agree with the RAD’s finding that neither section 110 nor 111, nor the legislation as a whole, point to the need to show deference to the RPD’s findings of fact. As acknowledged by the RAD in this case, these provisions evidence the legislator’s intent that the RAD bring finality to the refugee claims determination process.\n\nIn particular, paragraph 111(2)(a) indicates that the RAD does not need to defer for factual findings. Paragraph 111(2)(a) does not distinguish between errors of law, fact or mixed fact and law. It simply requires that the decision of the RPD be “wrong in law, in fact or in mixed law and fact” (in French: “erronée en droit, en fait ou en droit et en fait”).", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-33", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 60–61", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "At the hearing, the Minister argued that the wording of paragraph 111(2)(a) was such that it applied only to paragraph 111(1)(c), and not to paragraphs 111(1)(a) or (b). Thus, paragraph 111(2)(a) provides little guidance as to the role of the RAD when it confirms a RPD decision under paragraph 111(1)(a) or sets it aside by substituting “the determination that, in its opinion, should have been made” under paragraph 111(1)(b). I cannot agree. The effect of this argument is that the RAD would be forced to reach the appropriate outcome for the case (under one of paragraphs 111(1)(a), (b) or (c)) before it could choose the proper standard of review to apply to that case: it would be forced to put the cart before the horse.\n\nAlbeit in a different context, a similar approach was rejected by this Court in Cartier at paragraph 9. In that case, this Court noted that despite the awkward way the provision at issue was drafted, the applicable standard of review remained the same regardless of whether the appellate body confirmed or reversed the decision under appeal, thereby resulting in the release of an offender. I cannot see how this could be otherwise in the present case. Indeed, on appeal, the RAD must necessarily consider the RPD decision and the record available before determining how it should dispose of the matter, including whether it is preferable to dispose of the appeal in accordance with paragraph 111(1)(c) and subsection 111(2). The extent or nature of its review of the decision and its assessment of the record cannot depend on the ultimate conclusion that it will reach in this regard.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-34", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 62–64", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, subsection 111(2) is part of the context that must be examined as a whole to determine the legislative intent regarding the role of the RAD in all cases mentioned under subsection 111(1). This is especially so because paragraph 111(2)(b) expressly refers to paragraphs 111(1)(a) and (b).\n\nI also note that the Minister appears to suggest that the word “wrong” is synonymous or the equivalent to the word “unreasonable”: Appellant’s MFL at para. 80. Again, I cannot accept this argument. This is not the ordinary meaning of the word “wrong”, nor is it its customary meaning in a legal context.\n\nThe ordinary meaning of the word “wrong” is “not correct or true”, “incorrect”, “mistaken”: The Oxford English Dictionary, 3d ed., s.v. “wrong”. The French version “erronée” has the exact same ordinary meaning, that is, “fausse”, “incorrecte”, “inexacte”, “mal fondée”: Le nouveau petit Robert, 2006, s.v. “erroné”. This wording definitively points to the standard of correctness. In addition, the legislator’s intent to use the word “wrong” in its ordinary meaning is, in my view, supported by the legislative history, to which I will refer later.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-35", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 65–66", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, the Minister’s position can only be based on the assumption that the legislator meant to apply one of the deferential standards of review applicable to findings of fact, be it in the context of a judicial review or of an appeal from a trial court. No such presumption applies here, as the legislator made it clear that the RPD is not entitled to err, be it in law, in fact or in mixed and fact and law. As mentioned earlier, it would make little sense to give the word “wrong” a different meaning depending on whether it relates to the words “in law”, “in fact” or “in law and in fact” used in paragraph 111(2)(a). This would be contrary to the most basic rule of statutory interpretation.\n\nFurthermore, it appears from a search of the federal legislation and regulations that the word “wrong”, as used in paragraphs 111(2)(a) and 67(1)(a) of the IRPA, has not been used in any other federal statute or regulation. By contrast, there are many examples of statutes and regulations that capture the standard of reasonableness through the use of words such as “reasonable” or “reasonably”. I gave an example of each at paragraph 50 above. Thus, the IRPA’s unique provisions were expressly crafted to give effect to the legislator’s particular intent in respect of this sui generis scheme.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-36", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 67–68", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "At the hearing, the Minister submitted that the most telling characteristic of the RAD’s appeal process is that in the vast majority of cases (including the matter before us), the RAD determines the appeal on the basis of the record of the RPD proceedings: subsection 110(3) of the IRPA. This, he submits, leads to the conclusion that the legislator intended that all findings of fact (and not only those involving the assessment of oral evidence) be reviewed on the standard of reasonableness or of palpable and overriding error. I need only use one example to illustrate why I disagree that this is not the only inference that can be drawn from subsection 110(3). The present appeal is based solely on the record available before the judge. Still, as mentioned earlier, once it has been ascertained that the judge chose the appropriate standard of review for the question before him, the Court “steps into the shoes” of the judge to assess if he correctly applied that standard. No deference is owed in that respect, although the Court will carefully consider the decision under appeal.\n\nAdmittedly, inasmuch as paragraph 111(2)(a) is relevant to the analysis, subsection 110(3) is also part of the context that must be considered. However, subsection 110(3) is simply not as determinative as the Minister’s argument above suggests.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-37", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 69–71", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "I now turn to paragraph 111(2)(b). It provides that once an error has been identified (paragraph 111(2)(a)), the RAD may refer the matter back for redetermination with the directions that it considers appropriate only if it is “of the opinion” that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. This possibility acknowledges the fact that in some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD.\n\nThis also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.\n\nOne can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD’s findings of fact regarding the relative weight of testimonies and their credibility or lack thereof.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-38", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 72–74", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD.\n\nSimilarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings.\n\nThat said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-39", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 75–76", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Before concluding my analysis of the wording and scheme of the IRPA, I will say a few words about another argument raised by the Minister that could in theory fit in this analysis, given that it may address the objective set out in paragraph 3(2)(a) of the IRPA. Without providing any evidence to support his argument, the Minister states that unless the RAD applies a standard involving a high level of deference to the RPD findings of fact, it would be impossible for the RAD to fulfill its mandate because it would be required to peruse an enormous amount of documentation.\n\nAs mentioned earlier, I reviewed a large sample of decisions of the RAD that applied the approach suggested by the judge in this case. The RAD members in question had chosen to do so even after other Federal Court decisions indicated that the standard of palpable and overriding error could be used to review the RPD’s findings of facts. I note in passing that I was impressed by the general quality of those decisions; this certainly bodes well for the future. That said, I saw no indication that the RAD has any difficulty fulfilling its mandate when conducting substantive reviews of appealed RPD decisions. Certainly, there is no mention of this in any of the decisions that followed the approach described by the judge in this matter. A few members of the RAD have decided to follow the approach suggested in Spasoja. I understand that this is mostly because they felt that it was easier to apply a standard that was already well defined, not because they did not have the time or the resources to conduct the substantive review of the documents on file that would be mandated if a less deferential standard were applied.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-40", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 77–79", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "In any event, and as indicated above at paragraphs 49 and 51, the number of appeals and the time and effort required on each appeal is for the legislator to consider. I find no indication in the wording of the IRPA, read in the context of the legislative scheme and its objectives, that supports the application of a standard of reasonableness or of palpable and overriding error to RPD findings of fact or mixed fact and law.\n\nAt this stage of my analysis, I find that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law. This translates into an application of the correctness standard of review. If there is an error, the RAD can still confirm the decision of the RPD on another basis. It can also set it aside, substituting its own determination of the claim, unless it is satisfied that it cannot do either without hearing the evidence presented to the RPD: paragraph 111(2)(b) of the IRPA.\n\nI also conclude that an appeal before the RAD is not a true de novo proceeding. Recognizing that there may be different views and definitions, I need to clarify what I mean by “true de novo proceeding”. It is a proceeding where the second decision-maker starts anew: the record below is not before the appeal body and the original decision is ignored in all respects. When the appeal is a true de novo proceeding, standard of review is not an issue. This is clearly not what is contemplated where the RAD proceeds without a hearing.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-41", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 80–83", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "I will now look at the IRPA’s legislative evolution and history. Despite the relatively low weight generally given to legislative history, I agree with the Federal Court in Spasoja that on the issue before us, it is particularly instructive and simply impossible to ignore. As mentioned, I believe that both the legislative evolution and its history confirm the conclusion that I have reached at this stage of my analysis.\n\nAlthough much of what I will say here has been discussed in various decisions of the Federal Court (see, for example, Djossou at paras. 74-85 and Spasoja at paras. 32-38), it is worthwhile to set it out again, as it provides useful indications as to how the legislator envisioned the role of the RAD and how the two-tier administrative decision-making process was understood to provide a fair and more efficient process.\n\nFrom 1985 until the enactment of the IRPA, the determination of refugee claims was governed by sections 67-69.1 of the Immigration and Refugee Act, R.S.C. 1985, c. I-2. Refugee claims were decided by a quorum of two members of the Convention Refugee Determination Division, unless claimants consented to have their case determined by a single member. There was no appeal, and the only recourse was judicial review.\n\nBill C-11 (now the IRPA), which received Royal Assent on November 1, 2001, provided for the creation of a Refugee Appeal Division (the RAD) within the Immigration and Refugee Board. In 2007, a private Member’s bill (Bill C-280) was introduced to implement the provisions relating to the RAD (sections 110 and 111 particularly), but it never received Royal Assent.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-42", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 84–86", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Another Bill C-11, entitled the Balanced Refugee Reform Act, was introduced in March 2010. It proposed to bring the unproclaimed RAD provisions of the IRPA into force within two years of its Royal Assent. It also proposed changes to the existing RAD provisions, such that the RAD would have the power to accept new evidence in certain circumstances and the ability to hold a hearing in specified situations (subsections 110(4) and (6)). It received Royal Assent on June 29, 2010.\n\nIn February 2012, Bill C-31, entitled Protecting Canada’s Immigration System Act, was introduced. It proposed further changes to the RAD provisions; in particular, it proposed limitations on access to the appeal provided for in the IRPA by several categories of refugee claimants, and barred appeals on cessation and vacation decisions (see subsection 110(2) of the IRPA). It received Royal Assent on June 28, 2012.\n\nOn December 15, 2012, the 2010 and 2012 amendments came into force and the RAD was formally launched. As mentioned, although the legislative history is not in any way determinative and should not to be given undue weight as to the legislative intent (CN v. Canada at para. 47), it remains useful to consider statements of the Minister responsible for the legislation, as well as those of others directly involved in its development.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-43", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 87", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "When Bill C-11 was tabled, Joan Atkinson, Assistant Deputy Minister, noted that the introduction of single-member RPD panels was to be offset by the introduction of the claimants’ right of appeal before the RAD: Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 27 (May 17, 2001) at 1140 in Joint Book of Authorities (JBA), Part II, Vol. 1, Tab 10. Similarly, the Honourable Elinor Caplan, who was the Minister responsible for the bill, underlined that: The whole purpose [of the RAD] is to ensure that the correct decision is made ... Our expectation is that … the ability of the RAD to fix mistakes will give greater assurance to the Federal Court in the decision making at the IRB. In that way, we will see fewer cases actually given review at the Federal Court. (Standing Senate Committee on Social Affairs, Science and Technology, 37th Parliament, 1st Session, Issue 29 (October 4, 2001) in JBA, Part II, Vol. 1, Tab 11; emphasis added)", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-44", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 88", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Peter Showler, former Chairman of the IRB, stated the following as to why it would be appropriate to reduce the number of members dealing with refugee claims from two to one: In contrast to the present model, where claims are normally heard by two-member panels, the vast majority of protection decisions will be made by a single member. Single-member panels are a far more efficient means of determining claims. It is true that claimants will no longer enjoy the benefit of the doubt currently accorded them with two-member panels, and I think that should be noted. However, any perceived disadvantage is more than offset by the creation of the refugee appeal division, the RAD, where all refused claimants and the minister have a right of appeal on RPD decisions. Appeals to the RAD will be in writing only and will be reviewed by experienced RPD decision-makers with the power to affirm the RPD decision, to set it aside and substitute their own decision, or to refer the matter back to the RPD for a rehearing on particular issues in exceptional cases where it might be necessary to hear additional evidence. We estimate the workload of the RAD will be about 8,000 to 9,000 cases per year, and we intend to equip the division with a corresponding level of staff and resources. It is expected that the RAD will produce two different but complementary results. By reviewing individual RPD decisions on the merits, the RAD can efficiently remedy errors made by the RPD. That, if you will, is the safety net for the RPD. However, in addition the divisions will ensure consistency in refugee decision-making by developing coherent national jurisprudence in refugee law issues.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-45", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 88–89", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "As I said to this committee before, we don’t see that as a benefit simply in that it will improve the quality of our decision-making. If there is more coherent, consistent jurisprudence, we think RPD decision-makers can actually make their decisions more quickly as well. […] So there’s a significant difference between them. We think the total result will end up the same as before. But as I’ve already indicated, we think we will have a better-quality decision-because we’ll have had two goes, two kicks, at the can. There’s not only been the original decision, but also a clear, authoritative, experienced review of that decision. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 5 (March 20, 2001) at 0915-20, 0925 in JBA, Part II, Vol. 1, Tab 6; emphasis added)\n\nMinister Elinor Caplan further stated that: Bill C-11 will create a new Refugee Appeal Division at the IRB to hear appeals on merit for decisions on refugee claims, rendering the system both faster and fairer by providing a mechanism to correct error in the first instance. […] Also I want to clarify that the RAD, the Refugee Appeal Division is not a second hearing. It is a review on merit of the hearing that took place at the Refugee Protection Division. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 22 (May 8, 2001) at 0845, 0935 in JBA, Part II, Vol. 1, Tab 8)", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-46", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 90–91", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "At the second reading of the private Member’s bill presented in 2007, Member of Parliament Richard Nadeau referred to a number of systemic considerations justifying the establishment of the RAD, including the need for more efficiency. This particular need had been described as follows by the Canadian Council for Refugees: “[a] specialized appeal division for refugee matters can deal much more efficiently with unsuccessful claimants than the Federal Court… The refugee appeals division can do a better job of correcting errors of law and fact”: House of Commons Debates, 39th Parliament, 1st Session, No. 122 (March 2, 2007) in JBA, Part II, Vol. 1, Tab 15 at 7569.\n\nDuring the debate on the second reading of Bill C-11 on April 26, 2010, the Honourable Jason Kenney, then-Minister of Citizenship and Immigration, stated: The proposed new system would also include, and this is very important, a full appeal for most claimants. Unlike the appeal process proposed in the past and the one dormant in our current legislation, this refugee appeal division, or RAD, would allow for the introduction of new evidence and, in certain circumstances, provide for an oral hearing. (House of Commons Debates, 40th Parliament, 3rd Session, No. 033, Vol. 145 (April 26, 2010) at 1945 in JBA, Part II, Vol. 2, Tab 24; emphasis added)", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-47", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 92", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Then, on May 4, 2010, Minister Kenney pointed out before the Standing Committee on Citizenship and Immigration: However, there is finally an appeal section, which is even better than what was provided by the legislation in 2002. This new appeal division would provide most claimants with a second chance, an opportunity to introduce new evidence about their claim and to do so in an oral hearing, if necessary. And, significantly, Mr. Chairman, the bill would make it possible to remove those who would abuse our system within a year of their final IRB decision. […] I want to underscore that the refugee appeal division foreseen in the Immigration and Refugee Protection Act 2003, and proposed, for instance, in Mr. St-Cyr’s private member's bill, does not actually include, as does the RAD in Bill C-11, the ability to present new evidence and in certain cases to have an oral hearing before the appeal division decision-maker. This is an improved RAD. It’s an additional level of administrative fairness, but it’s not going to happen if we don't achieve the other streamlining in the system that the package speaks to. (Standing Committee on Citizenship and Immigration, 40th Parliament, 3rd Session, meeting No. 12 (May 4, 2010) at pp. 1535, 1610 in JBA, Part II, Vol. 2, Tab 25; emphasis added)", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-48", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 93", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Minister Kenney added before the Senate Committee on Social Affairs, Science and Technology: The result would be a streamlined system that would actually add greater procedural fairness, through the creation of what's known as the Refugee Appeal Division. This would allow failed claimants a full appeal of their claims. In terms of our system, Bill C-11 would provide for the following. First, the creation of a new interview with an Immigration and Refugee Board public servant, in place of a written form, early in the claims process. In our opinion, that would speed up the process and make it more efficient. Second, independent decision makers at the Refugee Protection Division of the IRB who are public servants rather than political appointees. That means that people who hold the hearings for asylum claimants will be, after those reforms, IRB officials rather than cabinet appointees. Third, a new fact-based refugee appeal division that even surpasses what refugee advocates have requested for a long time. […] The initial hearing at the Refugee Protection Division and the appeal at the Refugee Appeal Division both constitute an analysis of the risk faced by the claimant. Will they face a risk of torture or threat to their life if returned to their country of origin? . . . Our position is that once you have had two negative risk assessments — that is, once an IRB officer has looked at your case and said that you do not face risk if returned to your country and a refugee appeal decision maker has made the same decision — we do not think it is appropriate to have a third, redundant, risk assessment based on that legal criteria of risk, which is now embedded in sections 96 and 97 of the Immigration and Refugee Protection Act.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-49", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 93–95", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "(Standing Senate Committee on Social Affairs, Science and Technology, 40th Parliament, 3rd Session, Issue 11 (June 22, 2010) at 11:14, 11:19 in JBA, Part II, Vol. 2, Tab 34; emphasis added)\n\nThe same idea was reiterated by Minister Kenney during the second reading of Bill C-31, when it was presented in the House of Commons in 2012: I reiterate that the bill would also create the new refugee appeal division. The vast majority of claimants who are coming from countries that do normally produce refugees would for the first time, if rejected at the refugee protection division, have access to a full fact-based appeal at the refugee appeal division of the IRB. This is the first government to have created a full fact-based appeal. (House of Commons Debates, 41st Parliament, 1st Session, No. 090, Vol. 146 (March 6, 2012) at 1515 in JBA, Part II, Vol. 2, Tab 36)\n\nShortly thereafter, he added: What we are proposing in C-31 goes above and beyond our legal and humanitarian obligations under both the Charter of Rights and Freedoms and the UN convention on refugees. It proposes an asylum system that would be universally accessible and that would respect absolutely our obligation of non-refoulement of people deemed to be in need of our protection. It would provide access to a full and fair hearing at an independent quasi-judicial body, which again goes above and beyond our charter and UN convention obligations. It would create for the first time a full and fact-based appeal at the refugee appeal division, accessible to the vast majority of failed asylum claimants who lose at the first instance. (House of Commons Debates, 41st Parliament, 1st Session, No. 094, Vol. 146 (March 12, 2012) at 1545 in JBA, Part II, Vol. 2, Tab 37; Emphasis added)", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-50", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 96–99", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "From these excerpts, I understand that the legislator expected to create a more efficient process by having a single member of the RPD evaluate each refugee claim, and enabling this decision-maker to issue his or her decision more quickly, with the assurance that any error would be corrected on appeal by another specialized decision-maker with experience and strong analytical skills.\n\nRather than systematically holding a second hearing on appeal, which might delay the RAD’s final decisions on refugee claims, the claimants’ second “kick at the can” on appeal (see paragraph 89 above) was to be done on the basis of the record before the RPD, except in limited cases where new evidence would be admitted and the requirements of subsection 110(6) were fulfilled.\n\nThe RAD was essentially viewed as the safety net that would catch all mistakes made by the RPD, be it on the law or the facts. This confirms my prior conclusion that the legislator intended the RAD to review the RPD decisions on the standard of correctness.\n\nThis appears to be substantially in line with the submissions of the United Nations High Commissioner for Refugees (UNHCR) on Bill C-31, in which the UNHCR noted that on an appeal in respect of refugee claims, the decision-maker should have the jurisdiction to review questions of both fact and law, be able to accept and assess new evidence, and to recognize refugees independently: UNHCR Submission on Bill C-31 Protecting Canada’s Immigration System Act, May 2012, online: UNHCR Canada < http://www.unhcr.ca/newsroom/publications/> in JBA Part I, Vol. 4, Tab 93.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-51", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 100–102", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "It was certainly expected in 2001 that the workload of the RAD would be important (i.e., 8,000 to 9,000 cases annually) and the IRB’s intent was to equip the new division with a corresponding level of staff and resources. The then-chairman of the IRB appears to have had no issue with respect to the capacity (in terms of staff and resources) of the RAD to substantively review RPD decisions on the merits and remedy errors made by the RPD: see above at paragraph 88. There is no indication that this exercise was viewed as a useless duplication of the work of the RPD, for this is exactly what justified reducing the number of members on the RPD panel involved in reviewing each refugee claim. It would certainly be more efficient to have only one instead of two decision-makers routinely involved in preparing and holding a hearing.\n\nThe restrictions on the claimants’ right to appeal introduced in 2012 would necessarily, in and of themselves, reduce the caseload of the RAD, while the other provision introduced expanded the RAD’s ability to admit new evidence.\n\nThe efficiency contemplated here by the legislator (that is, a more quickly-reached decision by a single member, usually reviewed – where the right of appeal exists – by a member of the RAD, generally without the need to hold a second hearing to correct any mistakes), as well as the legislator’s intention to assign the resources necessary to achieve this aim, are quite distinct from the considerations driving the judicial policy described in Housen and incorporated in the factors of Newton.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143136-52", - "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 103–106", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.\n\nThus, the RAD erred by applying the reasonableness standard to the RPD’s analysis of the objective evidence regarding state protection and to its conclusion in that respect. I would, therefore, dismiss the appeal with costs to the respondents.\n\nI wish to thank the interveners for their excellent submissions, which were quite useful.\n\nIn light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD’s findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. \"Johanne Gauthier\" J.A. “I agree Wyman W. Webb J.A.” “I agree D.G. Near J.A.”", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" - }, - { - "id": "fca-143152-1", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 1–3", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The matter before the Court is an appeal from a judgment of Justice Jocelyne Gagné of the Federal Court (the judge), which allowed the application for judicial review of Parminder Singh (the respondent) of a decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada regarding his claim for refugee protection. The respondent’s refugee protection claim had previously been dismissed by the Refugee Protection Division (RPD), not only because he had failed to satisfactorily establish his identity, but because he was not credible and had an internal flight alternative available to him in India.\n\nThe appeal raises for the first time the issue as to how to interpret subsection 110(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], which governs admissible evidence before the RAD. This provision was enacted as part of the Balanced Refugee Reform Act, S.C. 2010, c. 8 [BRRA], the objective of which was to amend and implement unproclaimed provisions in the IRPA providing for the creation of the RAD.\n\nAt the end of her reasons, the judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-2", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 4–6", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister of Citizenship and Immigration (the Minister) argued that the Federal Court erred in failing to apply the criteria laid out in Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2007] F.C.J. No 1632 [Raza] for the purposes of subsection 110(4), and that the RAD was entitled to refuse to admit into evidence a grade 12 diploma (the Diploma) that had been seized by the Canada Border Services Agency (CBSA) and that had not been submitted before the RPD. For the reasons that follow, I am of the view that the Minister’s submissions must be accepted and that the appeal must therefore be allowed.\n\nThe respondent is a citizen of India. He alleges to have been friends with one Bhupinder Singh when he was pursuing his studies, but that he only saw him occasionally following his graduation in 2002. Nonetheless, this individual apparently showed up at the respondent’s home in November 2012 to spend the night, before leaving for an unknown destination.\n\nSeveral days later, the respondent claims that the police arrested him in order to question him about Bhupinder Singh. He was purportedly held and tortured for three days before being released without conditions, when representatives from his village intervened on his behalf. Following this incident, he was apparently hospitalized for stomach pains. In support of his claims, he submitted a medical certificate to the RPD indicating that he had received treatment for injuries and vomiting, which contained a list of prescribed medications.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-3", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 7–9", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "About two weeks after this first incident, the respondent contends that the police arrested him a second time and detained him for 24 hours in order to question him further about Bhupinder Singh, before he was released once again due to the intervention of representatives from his village.\n\nAfter this second incident, the respondent alleges that his mother hired a smuggler to get him out of India. The respondent arrived in Canada on January 29, 2013, and claimed refugee protection at the port of entry. He handed over to the CBSA the driver’s licence and voter’s card the smuggler had obtained for him, as well as two school certificates issued in 2000 and 2002. The documents were seized, and the CBSA concluded after an analysis that the driver’s licence and voter’s card were probably forgeries. The respondent was initially detained due to the difficulty in establishing his identity, and was later released on condition that he report weekly to the CBSA’s offices.\n\nThe hearing before the RPD was held on April 2, 2013, and the notice of that decision was issued on May 7, 2013. First, the RPD found that the respondent had failed to establish his identity. In this regard, it noted that the CBSA had determined that the driver’s licence and voter’s card were probably forgeries, and opined that his credibility had been undermined by the fact that he had not made any efforts to obtain genuine versions of these documents through his family in India.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-4", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 10–11", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "As for the school certificates, the RPD’s record contained only the one that had been issued in 2000. Questioned about the 2002 Diploma, the respondent stated that he believed that it was still in the possession of Citizenship and Immigration Canada and that he did not understand why a copy of it had not been forwarded to the RPD. This explanation was rejected by the RPD, and as a result there was no evidence to corroborate his claim of having studied with Bhupinder Singh until 2002.\n\nLastly, the respondent had produced a copy of a ration card as well as a birth certificate. The ration card had been issued in 2008 but had been corrected in 2011 to remove the respondent’s sister and replace the family photo, following his sister’s marriage in 2010. The RPD found that the one-year gap between the marriage and the correction to the family’s ration card affected the probative value of the document, since the photo attached to the ration card seemed to have been affixed permanently rather than in a manner that would permit it to be changed. Given that the four identity documents filed as evidence by the respondent raised concerns, the birth certificate alone was not sufficient to establish his identity.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-5", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 12–13", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Second, the RPD continued its analysis to conclude that the respondent’s narrative was not credible. The RPD pointed out that the respondent had changed the chronology of important events when he amended his Basis of Claim form, having initially placed his father’s cardiac problems after the two arrests, and then between the two arrests. Given the significance of the events in question, the RPD did not accept the respondent’s explanation that he had made a mistake with the dates and had only realized his error when he received his father’s medical report. The RPD also noted that this medical report only indicated facial paralysis and bed rest for a five-day period, which does not correspond to the claim that his father was half paralysed and permanently bedridden. The RPD further concluded that the medical report relating to the respondent’s stomach issues did not corroborate his allegations of torture.\n\nEven if the respondent had been able to establish his identity and the credibility of his narrative, the RPD ultimately found that he still had an internal flight alternative. While acknowledging that Indian police have the ability to pursue individuals throughout the country, the RPD nonetheless noted that only a limited group of militant Sikhs were targeted in this manner, and that the respondent did not have the profile of someone who would be targeted, were he to move elsewhere in India.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-6", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 14–15", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "On appeal at the RAD, the respondent submitted an application to file additional evidence, namely, a copy of the Diploma. In support of his application, he filed an affidavit attesting that he had received from his former counsel, on or about June 11, 2013, a copy of his file that included a copy of the Diploma, which had apparently been faxed to his former counsel by the CBSA on February 25, 2013. He pointed out that he had been unaware of this fact prior to June 11, 2013, that it was consequently impossible for him to have produced the document before the RPD, and that he was therefore justified in asserting during his hearing before the RPD that the Diploma had been seized.\n\nThe RAD refused to allow the Diploma to be admitted into evidence. It first opined that subsection 110(4) of the IRPA should be interpreted in light of the jurisprudence that has developed around paragraph 113(a) of the same statute, and in particular on the basis of Raza, given the similar wording used in both provisions. The RAD also pointed out that the fact that evidence corroborates allegations or contradicts the findings of the RPD does not make it new evidence. Ultimately, the RAD found that the Diploma had been available to the respondent at the time of the hearing on April 2, 2013, since a copy of it had been sent to his former counsel on February 25, 2013. Considering that the respondent had not alleged any incompetence or made a complaint against his former counsel, he and his counsel had access to the Diploma and it was reasonable to expect that the document would have been presented at the hearing before the RPD. Accordingly, the RAD concluded that the Diploma was inadmissible, and as a result, that there was no ground to hold a hearing.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-7", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 16", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "On the merits, the RAD was of the view that the three issues should be reviewed on a standard of reasonableness. With respect to the identity of the respondent, the RAD concluded that the RPD had erred by failing to make a finding on the probative value of the school certificates to establish the respondent’s identity, analyzing them solely from the perspective of his credibility as to whether he had gone to school with Bhupinder Singh. Therefore, the RPD could not dismiss the birth certificate on the basis that this document alone was insufficient to establish the respondent’s identity. The RAD therefore found that the respondent’s identity had been duly established based on his school certificate and birth certificate. Second, the RAD was of the view that the RPD had not made an error of fact or of law in its overall assessment of the respondent’s credibility, and that it could reasonably doubt his credibility in light of the varying information with regard to the chronology of events he claimed to have experienced, the fraudulent or altered documents he presented as evidence, and the medical documents that did not corroborate his allegations. Given these findings, the RAD was of the opinion that it was not necessary for it to respond to the internal flight alternative issue.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-8", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 17–18", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Two issues were raised in the application for judicial review before the Federal Court. First the Court had to determine whether the RAD erred in applying the criteria in Raza to assess the admissibility of new evidence, and then consider the application of those criteria to the facts of the case. In both cases, the judge applied the reasonableness standard of review. The first issue concerned the interpretation of the RAD’s home statute and was not subject to any of the exceptions to the presumption that this type of question is reviewable on the reasonableness standard, while the second was clearly a question of mixed fact and law.\n\nAfter comparing the wording of subsection 110(4) and paragraph 113(a) of the IRPA and acknowledging that the language was similar, the judge began by noting that the role of a Pre-Removal Risk Assessment (PRRA) officer differed from that of the the RAD. While PRRA officers are employees of the Minister and must show deference to decisions made by the RPD unless new evidence arises that would require a re-assessment of the risks set out in sections 96 and 97, the RAD is a quasi-judicial administrative tribunal that has been given the mandate of hearing appeals from decisions issued by the RPD and may set aside a decision in order to substitute the determination that, in its opinion, should have been made (IRPA, s. 111(1)). Given these distinctive roles, the judge was of the opinion that it was not appropriate to apply, mutatis mutandis, the criteria developed in the context of paragraph 113(a) to interpret subsection 110(4).", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-9", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 19", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Relying on a statement made in the House of Commons by the Minister of Citizenship and Immigration during a debate on the establishment of the RAD to the effect that refugee claimants must be able to benefit from a “full fact-based appeal”, the judge continued this line of reasoning by adding that adopting a restrictive approach to the admissibility of new evidence would prevent the RAD from fulfilling its mission. Lastly, she noted that the implicit factors identified by the Federal Court of Appeal in Raza “find their source in the purpose of paragraph 113(a)”, according to Justice Sharlow herself. That being the case, the judge added, these factors are not transferable in the context of an appeal before the RAD.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-10", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 20", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Having concluded that it was unreasonable for the RAD to have strictly applied the criteria established in Raza when it came time to interpret subsection 110(4) of the IRPA, the judge then inquired as to whether it was reasonable for the tribunal to have refused to admit the Diploma into evidence. She determined that this piece of evidence could be material to demonstrate that the RPD erred in making negative findings with respect to the respondent’s credibility, namely, that the CBSA had not confiscated the Diploma and that the respondent had not established that he had attended school with Bhupinder Singh until 2002. The judge also found it unreasonable for the RAD to have concluded that the respondent should have brought this evidence before the RPD, given that it was not in his possession and that he mistakenly believed that the CBSA still had it. As for the fact that the respondent did not file a complaint against his former counsel, the judge opined that it was unreasonable to make this a prerequisite for filing new evidence or to expect the respondent to know the procedure for filing complaints before the Barreau du Québec.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-11", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 21–22", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Federal Court judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?\n\nIt is well-settled that the role of this Court when hearing an appeal of a judgment on an application for judicial review is to determine first, whether the Federal Court identified the appropriate standard of review and second, whether it applied that standard correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, [2013] 2 S.C.R. 559; Wilson v. Atomic Energy of Canada Ltd., 2015 FCA 17 at para. 42, [2015] 4 R.C.F. 467 [Wilson] ; Telfer v. Canada (Revenue Agency), 2009 FCA 23 at paras. 18-19, [2009] F.C.J No. 71. In other words, this Court should “step into the shoes” of the Federal Court and focus on the administrative decision that is the subject of the judicial review: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 247, [2012] 1 S.C.R. 23.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-12", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 23", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "As noted earlier, the judge applied the reasonableness standard to the interpretation of subsection 110(4) of the IRPA. In so doing, she relied on the well-established presumption that one must normally defer to an administrative decision-maker when it is called upon to interpret a statute closely related to its function and with which it has particular familiarity: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 54, [2008] 1 S.C.R. 190 [Dunsmuir]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paras. 26 and 28, [2011] 1 S.C.R. 160 [Smith]; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at paras. 16 and 18, [2011] 3 S.C.R. 471; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 at para. 36, [2011] 3 S.C.R. 616 [Nor-Man]; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 30, [2011] 3 S.C.R. 654; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 at para. 167, [2013] 1 S.C.R. 467. Although this presumption is rebuttable, the judge correctly concluded that the interpretation of subsection 110(4) of the IRPA did not fall under one of the exceptions recognized by the existing jurisprudence: see, in particular Dunsmuir, at paras. 55 to 61; Nor-Man, at para. 35; Smith, at para. 26. Indeed, it is not a question of law of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, or a constitutional question, a question regarding the jurisdictional lines between competing tribunals, or even a true question of jurisdiction.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-13", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 24–25", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The intervener nonetheless asserted that the judge erred in selecting a reasonableness standard, on the ground that she had an obligation to put an end to the differences in interpretation resulting from the wording of subsection 110(4) within the RAD. Relying on this Court’s recent decision in Wilson, the intervener related the various different approaches adopted by RAD members in applying subsection 110(4) and requested that we put an end to this uncertainty and to the conflicting results that are likely to result from it.\n\nWith respect, I am not persuaded by this argument. It should be noted that Wilson is an “unusual” case, to use the expression employed by Justice Stratas, in that the question as to whether the Canada Labour Code, R.S.C. 1985, c. L-2 permits dismissals on a without cause basis has been one of “persistent” discord, to the extent that the answer to this question has largely depended on the identity of the adjudicator. Furthermore, adjudicators are not bound by the decisions of their colleagues and operate independently rather than within an institution such as an administrative tribunal, which decidedly does not favour the emergence of a consensus or a consistent interpretation.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-14", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 26", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In this instance, we are not confronted with a persistent discord that has existed for many years. The RAD was established in December 2012, and only began issuing decisions in 2013. There is therefore no urgent need to intervene, especially since the principles that will emerge from the jurisprudence of this Court and the Federal Court will necessarily provide a framework within which the RAD will be able to interpret subsection 110(4) of the IRPA. Thus, there is no need to depart from the general principle that an administrative tribunal is owed deference when it interprets its enabling statute; the early, tentative steps of the RAD and its differences of opinion as to the interpretation of certain statutory provisions do not affect the rule of law and are merely the inevitable consequence of choosing to entrust a specialized tribunal with the task of adjudicating disputes arising from the implementation of a new scheme.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-15", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 27", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "That said, there was reason to believe that this Court owed no deference with regard to the decision made by an administrative decision-maker in the context of the IRPA, where the certified question on the basis of which the Federal Court decision was being appealed raised an issue of statutory interpretation. After all, the Federal Court may only certify serious questions of general importance that transcend the interests of the parties: IRPA, s. 79. Is this not precisely the type of question that requires a definitive interpretation and on which the Court of Appeal should rightly intervene to put a stop to inconsistencies that may develop within an administrative body? At least, this is what was suggested in decisions such as Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193. In that last matter, Justice Bastarache (writing for the majority) states at paragraph 43: First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” (emphasis added). The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-16", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 27", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board that are wrong in law, even clearly wrong in law, but not patently unreasonable? The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal – and inferentially the Federal Court, Trial Division – is permitted to substitute its own opinion for that of the Board in respect of questions of general importance. This view accords with the observations of Iacobucci J. in Southam, supra, at para. 36, that a determination which has “the potential to apply widely to many cases” should be a factor in determining whether deference should be shown. While previous Federal Court decisions, including, arguably, the dispute in Sivasamboo, involve significant determinations of facts, or at the highest, questions of mixed fact and law, with little or no precedential value, this case involves a determination which could disqualify numerous future refugee applicants as a matter of law. Indeed, the decision of the Board in this case would significantly narrow its own role as an evaluator of fact in numerous cases.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-17", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 28–30", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Yet the Supreme Court decided otherwise. In a recent decision, the highest court concluded that the presence of a certified question was not determinative and that the applicable standard of review for such questions is reasonableness: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44, [2015] S.C.J. No. 61. In order to reach such a conclusion, the Court essentially relied on the fact that it is the judgment itself that is ultimately the subject of an appeal, and not merely the certified question.\n\nFor all of these reasons, I therefore conclude that the judge correctly identified the standard of review to be applied to the application for judicial review that was before her. In other words, the RAD’s interpretation of subsection 110(4) of the IRPA was subject to review on the reasonableness standard, in accordance with the presumption that an administrative body’s interpretation of its home statute is owed deference by a reviewing court.\n\nI would hasten to add, as the judge did, that the present appeal does not turn on the role of the RAD and on the standard of review it should apply when ruling on decisions issued by the RPD, but solely on the factors the RAD must consider when assessing the admissibility of evidence that was not presented before the RPD. The standard to be applied by the RAD when reviewing a decision of the RPD on the merits is dealt with in another ruling of this Court in Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-18", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 31–32", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "As noted above, the original version of the IRPA had anticipated the creation of the RAD, tasked with hearing appeals of certain RPD decisions. However, the relevant provisions were never implemented, and it was ultimately not until the enactment of the BRRA, on June 29, 2010, that the unproclaimed provisions (after a few minor amendments) creating the RAD would be implemented. Those provisions came into force on December 15, 2012 (Order Fixing December 15, 2012 as the Day on which Certain Sections of the Act Come into Force, S.I./2012-94, (2012) C. Gaz. II, 2980-2981; IRPA, s. 275).\n\nThe version ultimately adopted by Parliament differs in certain respects from the original 2001 document. More specifically, subsection 110(3) allows the Minister and the person who is the subject of the appeal to present not only written submissions, as was the case in the original version, but documentary evidence as well. It was precisely in the wake of this amendment that subsection 110(4) was introduced, which restricts evidence that may be presented by the person who is the subject of the appeal to “only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented.”", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-19", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 33", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The wording of this provision bears a striking resemblance to that in paragraph 113(a), which governs the admissibility of new evidence in PRRA applications. A comparison of both texts allows for a better visualization of this resemblance: Evidence that may be presented Éléments de preuve admissibles 110. (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 110. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Consideration of application Examen de la demande 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-20", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 34–35", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "There is no doubt that the explicit conditions set out in subsection 110(4) have to be met. Accordingly, only the following evidence is admissible: • Evidence that arose after the rejection of the claim; • Evidence that was not reasonably available; or • Evidence that was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.\n\nThese conditions appear to me to be inescapable and would leave no room for discretion on the part of the RAD. In the first place, the very wording of subsection 110(4) specifies that the person who is the subject of the appeal “may present only” (« ne peut présenter ») evidence that falls into one of these three categories, thereby excluding any other evidence. Second, one should not lose sight of the fact that this provision departs from the general principle according to which the RAD proceeds without a hearing, on the basis of the RPD’s record (s. 110(3)) and must for that reason be narrowly interpreted. Indeed, the judge seems to agree with this approach, insofar as she states that the respondent “was required to establish that he could not have reasonably been expected to provide the newly submitted documents at his RPD hearing” (para. 47). If she ultimately sides with him, it is because his request to file this new evidence fell squarely, in her view, within the scope of subsection 110(4), “and it met its explicit criteria” (para. 62).", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-21", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 36–37", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The respondent and intervener relied on Elezi v. Canada (Minister of Citizenship and Immigration), 2007 FC 240, [2008] 1 F.C.R. 365 [Elezi] and, to a lesser extent, on Sanchez v. Canada (Minister of Citizenship and Immigration), 2009 FC 101, [2009] F.C.J No. 101, to argue that the RAD may take into account the probative value and credibility of evidence in order to counteract the requirements of subsection 110(4). With respect, I am unable to agree with this interpretation.\n\nI would first note that Elezi was issued nine months before the Court of Appeal’s ruling in Raza, and is therefore no longer authoritative insofar as it departs from this later decision. In addition, in Elezi, the PRRA officer’s decision not to admit some of the evidence was deemed to be unreasonable either because the evidence arose after the RPD’s decision, or because the applicant could not reasonably have been expected to present that evidence to the RPD in the circumstances. As a result, the assertion that one cannot reject credible evidence on the sole ground that it is “technically inadmissible” must be considered purely as an obiter.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-22", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 38", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The true crux of the issue here consists in determining whether the implied conditions of admissibility identified in the context of paragraph 113(a) by Justice Sharlow in Raza are also applicable to subsection 110(4). Because it goes to the heart of the submissions filed by counsel for both parties and the intervener, it is important to reproduce the following relevant excerpt from that decision: [13] As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or (c) contradicting a finding of fact made by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-23", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 38", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Materiality: If the evidence is material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [14] The first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a), within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a). [15] I do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-24", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 39–40", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "As noted above, the judge refused to transpose the implicit admissibility criteria identified by the Court of Appeal regarding paragraph 113(a) to the context of subsection 110(4). Relying on the fact that questions relating to credibility, relevance, newness and materiality arise implicitly from the purpose of paragraph 113(a), as Justice Sharlow herself declared, the judge was of the opinion that the different role and status of the RAD as compared to that of a PRRA officer called for a distinctive analysis. For the reasons that follow, I cannot subscribe to this view.\n\nIt must be assumed that Parliament’s decision to use near-identical wording did not happen by chance. Under a well-known rule of interpretation, it must be presumed that Parliament, when it uses the same wording as a provision that has already been interpreted by the courts, intends to rely on that interpretation: see Elmer A. Driedger, Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983 at p. 125.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-25", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 41", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is true that the French iteration of subsection 110(4) differs slightly from paragraph 113(a), insofar as it does not state “that the applicant could not reasonably have been expected…to have presented” (« qu’il n’était pas raisonnable … de s’attendre à ce qu’il les ait présentés »), but rather “that the person could not reasonably …have presented” (« qu’elle n’aurait pas normalement présentés »). I would agree with the judge that this distinction is not particularly telling, nor is it sufficient, in and of itself, to set aside past jurisprudence that has developed with regard to paragraph 113(a). In addition, no great inference may be drawn from the absence of the word “new” in the English version of subsection 110(4). Not only is the word “new” (« nouveau ») nowhere to be found in the French version of paragraph 113(a), but it is furthermore self-evident that evidence that arose after the rejection of the refugee protection claim will necessarily be new.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-26", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 42", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The fact that the RAD is a quasi-judicial administrative tribunal, as opposed to the PRRA officer, who is an employee of the Minister, acting within his or her employer’s discretion, must obviously be taken into consideration. The same applies to the fact that the RAD has an appellate function and has the authority to set aside the RPD’s decision and substitute that which should have been made, while the PRRA officer must show deference and does not sit in appeal of the RPD’s decision and his or her only mission is to assess any new pre-removal risk. These distinctions are not determinative of the admissibility of new evidence, however, and I note that the trial judge did not specify how the distinctive role and status of the RAD and the PRRA officer should affect the criteria for admitting evidence or how it would allow for the negation of the presumption to which I referred above.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-27", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 43", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In fact, the criteria used in Raza are consistent with the tests generally adopted by courts and administrative bodies, and are essentially designed to preserve the integrity of the judicial process: see Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2 at para 10, [2000] 1 S.C.R. 44. Although they were established by the Supreme Court in the context of a criminal proceeding (see Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775, 106 D.L.R. (3d) 212 [Palmer]), the criteria of newness, relevance, credibility and materiality were subsequently applied in civil matters (J.T.I MacDonald Corp. v. Canada (Attorney General), 2004 CanLII 30110 at para. 3, [2004] J.Q. no 9409 (C.A.Q.), in disciplinary law (Morin v. Regional Administration Unit #3 (P.E.I.), 2002 PESCAD 9 at para. 140, 213 D.L.R. (4th) 17 (P.E.I.C.A.), in aboriginal law (Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans), 2002 FCA 22 at para. 20, [2002] F.C.J No. 146) and in a number of other areas (see Donald J.M. Brown, Civil Appeals, Carswell, Toronto, 2015, pp. 10-16 to 10-18).", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-28", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 44", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Indeed, in my view it would be difficult to argue that the criteria set out by Justice Sharlow in Raza do not flow just as implicitly from subsection 110(4) as from paragraph 113(a). It is difficult to see, in particular, how the RAD could admit documentary evidence that was not credible. Indeed, paragraph 171(a.3) expressly provides that the RAD “may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.” It is true that paragraph 110(6)(a) also introduces the notion of credibility for the purposes of determining whether a hearing should be held. In that regard, however, it is not the credibility of the evidence itself that must be weighed, but whether otherwise credible evidence “raises a serious issue” with respect to the general credibility of the person who is the subject of the appeal. In other words, the fact that new evidence is intrinsically credible will not be sufficient to warrant holding a hearing before the RAD: this evidence would still be required to justify a reassessment of the overall credibility of the applicant and his or her narrative.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-29", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 45–47", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The same would apply to relevance. This is a basic condition for the admissibility of any piece of evidence, and it would be difficult to imagine the introduction of new evidence being somehow exempt from this criterion. Indeed, Rules 3(3)(g)(iii) and 5(2)(d)(ii) of the Refugee Appeal Division Rules, S.O.R./2012-257 implicitly allude to this by providing that both the appellant’s memorandum and memorandum in reply must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of subsection 110(4), but also how that evidence relates to the appellant (« la façon dont ils sont liés à l’appelant »).\n\nThe newness criterion may appear somewhat redundant and does not really add to the explicit requirements of subsection 110(4).\n\nAs for the fourth implicit criterion identified by this Court in Raza, namely, the materiality of the evidence, there may be a need for some adaptations to be made. In the context of a PRRA, the requirement that new evidence be of such significance that it would have allowed the RPD to reach a different conclusion can be explained to the extent that the PRRA officer must show deference to a negative decision by the RPD and may only depart from that principle on the basis of different circumstances or a new risk. The RAD, on the other hand, has a much broader mandate and may intervene to correct any error of fact, of law, or of mixed fact and law. As a result, it may be that although the new evidence is not determinative in and of itself, it may have an impact on the RAD’s overall assessment of the RPD’s decision.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-30", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 48–49", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Under subsection 110(6) of the IRPA, a RAD hearing may be held, subject to three conditions associated with the existence of new documentary evidence. The principle whereby the RAD proceeds without holding a hearing, as set out in subsection 110(3), is subject to an exception only where the documentary evidence “(a) […] raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) […] is central to the decision with respect to the refugee protection claim; and (c) […] if accepted, would justify allowing or rejecting the refugee protection claim.” These three conditions are unquestionably related to the materiality of the new documentary evidence that the RAD could be required to consider. If such is the case, as one would have reason to believe, it would be redundant to require materiality of evidence for it to be admissible as new evidence, to then subject the conduct of a hearing to the same criterion.\n\nSubject to this necessary adaptation, it is my view that the implicit criteria identified in Raza are also applicable in the context of subsection 110(4). For the reasons set out above, I am not satisfied that the differing roles of the PRRA and the RAD, and the separate status of persons who perform these functions, are sufficient to set aside the presumption that Parliament intended to defer to the courts’ interpretation of a legislative text when it chose to repeat the same essential points in another provision. Not only are the requirements set out in Raza self-evident and widely applied by the courts in a range of legal contexts, but there are very good reasons why Parliament would favour a restrictive approach to the admissibility of new evidence on appeal.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-31", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 50", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "As the Supreme Court noted in Palmer, a well-established judicial principle exists whereby the evidence and issues must be introduced exhaustively and dealt with at trial in criminal matters or at first instance in civil matters. As a case progresses, the issues in the matter must normally be further narrowed; the effect of introducing new evidence would be rather to expand the scope of the debate. This is what the RAD aptly highlighted at paragraph 20 of its reasons: On this topic, it should be noted that the fact that evidence corroborates facts, contradicts RPD findings or clarifies evidence before the RPD does not make it “new evidence” within the meaning of subsection 110(4) of the Act. If that were the case, refugee protection claimants could split their evidence and present evidence before the RAD at the appeal stage that could have been presented at the start, before the RPD. In my opinion, this is exactly what subsection 110(4) of the Act seeks to prohibit. [Footnotes omitted]", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-32", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 51–52", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In this regard, it is significant to note that Parliament’s departure from the principle of a paper-based appeal, held in the original version of the IRPA adopted in 2002, was limited. At the risk of repeating myself, the basic rule is that the RAD “must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division […]” (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6). Where the RAD finds that all of the evidence should be heard again in order to make an informed decision, it must refer the case back to the RPD (ss. 111(2)). This legislative framework reflects Parliament’s clear wish to narrowly define the introduction of any new evidence.\n\nThe judge acknowledged that an appeal filed with the RAD is “mostly intended as a ‘paper-based’ appeal” (para. 52). However, it is her opinion that a strict interpretation of subsection 110(4) would limit an applicant’s access to a “full fact-based appeal,” which would go against the wishes expressed by Jason Kenney, former Minister of Citizenship and Immigration, in a statement made in the House on March 6, 2012 (House of Commons Debates, 41st Parl., 1st Sess., No. 90 (March 6, 2012) at p. 5874).", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-33", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 53", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is true that in tabling the bill, the Minister affirmed that the vast majority of applicants from non-designated countries would have, for the first time, a “fact-based appeal” before the RAD. This statement alone is insufficient to substantiate the theory that criteria explicitly set out at subsection 110(4) can be set aside. It is at best ambiguous, and could be simply construed as differentiating the appeal from the much narrower scope of a judicial review. In this regard, I support the argument of the appellant and his analysis of the circumstances in which the Minister made his statement.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-34", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 54", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The judge also based the decision on the reduced timeframes within which claimants must submit their documents to support the flexible interpretation of the admissibility criteria she considered in her decision. The amendments made to the IRPA and to the Immigration and Refugee Protection Regulations, S.O.R./2002-227 [IRPR] do put a great deal of pressure on refugee protection claimants. The referral of a claim to the RPD is done within the three days following the filing of the claim (IRPA, subsection 100(1)), and the hearing must take place within 60 days of the referral (IRPR, paragraph 159.9(1)(b)), and even within 30 or 45 days for nationals from a designated country. Furthermore, according to paragraph 34(3) of the Refugee Protection Division Rules, S.O.R./2012-256 [RPD Rules], refugee protection claimants must file their supporting documentation before the RPD 10 days before the hearing. However, these considerations do not suffice to set aside the clear legislative intention to not authorize any new evidence on appeal other than in very specific and carefully defined circumstances. The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-35", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 55", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Inversely, the desire to counter the abuses that could occur under the regime applicable before the BRRA and the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17 came into force should not be invoked to restrict new evidence that those finding themselves with valid reason before the RAD should seek to file. In his factum, the Minister stated that the BRRA showed some degree of a willingness to enhance the admissibility criteria for new evidence at the RAD. Undoubtedly, Parliament intended to ensure the integrity of the immigration system by more effectively countering individuals who try to abuse it. To do so, Parliament took a certain number of measures, such as the creation of the RAD, and set out clear rules of evidence and procedure to ensure its appropriate functioning. These rules must be respected, and it must be presumed that the explicit choices that were made match the objective pursued. It is not the responsibility of the courts to rewrite such provisions when they are intelligible and unequivocal.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-36", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 56", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Finally, the intervener stated that the RAD should take its inspiration from the values enshrined in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), c. 11 [Charter] when it rules on the admissibility of new evidence. Based on paragraph 3(3)(d) of the IRPA, further to which the Act is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Charter, as well as the decisions rendered by the Supreme Court in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré] and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 [Loyola], counsel for the intervener claimed that the RAD had to go beyond the requirements set out in subsection 110(4) and was obligated to proceed with a proportionality analysis between the seriousness of the violation of the Charter right and the statutory objectives. The following is how counsel described the test they propose (in paragraph 34 of their factum): (a) If the evidence is capable of credibly proving relevant circumstances that arose after the RPD’s decision, then the evidence must be considered. (b) If the evidence is only capable of credibly proving relevant circumstances that arose prior to the RPD’s decision, then the RAD should consider if the appellant established either (i) that the evidence was not reasonably available or (ii) that she could not reasonably have been expected in the circumstances to have presented it, at the time of the RPD decision.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-37", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 56", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In this assessment, the RAD should recall that « in order for there to be a ‘full fact-based appeal’ before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur » [Singh v. Canada (MCI), 2014 FC 1022 at para. 55, per Gagné J.]. If the appellant is able to establish either condition, then the evidence must be admitted. (c) If the appellant is unable to satisfy either condition, then the RAD should consider whether the evidence raises a prima facie case of risk and, if admitted, could allow the RAD to come to a different conclusion on a central aspect of the claim than that of the RPD. If it does, then the RAD must conduct a proportionality exercise in which it balances the severity of the interference that exclusion would cause to the appellant’s Charter rights with the statutory objectives underlying s. 110(4).", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-38", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 57", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "With respect, I cannot agree with this argument. It is true that, in Doré, the Supreme Court stated that it was of the opinion that an administrative decision-maker must weigh the values set out in the Charter and the statutory objectives in the exercise of his or her discretionary power. In the context of a judicial review, the Court must determine whether the decision under review is the result of a proportionate balancing of the rights and values protected by the Charter, a process that bears some resemblance to the framework of analysis established in R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 when the very validity of a legislative text is challenged. This approach is well summarized in the following excerpt from Doré, at paragraph 57: On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155) and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-39", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 58–59", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Based on this approach, counsel for the intervener claim that the values protected by section 7 of the Charter must enter into the interpretation and application of subsection 110(4) of the IRPA and even lead to the admissibility of new evidence that does not meet the explicit requirements of this provision. However, this thesis encounters at least two difficulties.\n\nFirst of all, it has not been established in this case that the values protected by section 7 of the Charter are affected by the RAD’s decision not to admit as new evidence the Diploma that the respondent wanted to adduce. The intervenor argued that excluding credible evidence could result in an appeal being dismissed and consequently in the removal of the foreign national “as soon as possible”, because the conditional removal order comes into force 15 days after notification that the claim is rejected (IRPA, s. 49(2)c)). However, in my view this does not seem sufficient to conclude that the decision not to admit new evidence on appeal necessarily affects the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-40", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 60", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is first noteworthy that the decision made by the RPD, and on appeal before the RAD, does not pertain to the respondent’s removal, but solely to whether he is genuinely a Convention refugee or a person in need of protection in accordance with sections 96 and 97 of the IRPA. I am prepared to recognize that the RAD’s decision to exclude evidence on the grounds that it does not meet the criteria in subsection 110(4) will have a significant impact if a foreign national tries to submit that same evidence to a PRRA Officer or to a Removal Officer. Nevertheless, the respondent in this case failed to establish his credibility; the RAD found that the RPD could reasonably conclude that the respondent’s credibility was seriously undermined, and that that conclusion would be valid even if the Diploma were admitted in evidence. For reasons set out below, I am of the opinion that that conclusion falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, and consequently the respondent did not establish that his life, liberty or security would be in danger if he were returned to India.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-41", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 61", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Second, the intervenor did not convince me that the RAD’s decision not to admit new evidence would engage the principles of fundamental justice. It must be remembered that a foreign national claiming status as a refugee or a person in need of protection benefits from an extensive, multi-stage process that enables him to assert his claims before several levels of independent and impartial quasi-judicial tribunals and administrative decision-makers, and that he can apply for judicial review of those decisions to the Federal Court. While the right of appeal has not been recognized as a principle of fundamental justice (see Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at para. 47, [2005] 2 S.C.R. 539; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at pp. 741-742, 90 D.L.R. (4th) 289), Parliament decided to enhance the former regime and to implement the provisions of the IRPA establishing the RAD. The legislator could have provided only for an appeal on the record without a hearing, but elected to open the door to the submission of new evidence and hearings in carefully limited circumstances. I fail to see how enhancing a system already broadly respectful of the international and constitutional obligations to which Parliament and the government are subject could jeopardize that same system, especially since the criteria used in respect of admissibility of new evidence are essentially similar to those normally used in judicial and quasi-judicial proceedings on appeal, in both civil and criminal matters. The constitutionality of subsection 110(4) of the IRPA has not been challenged in this case, so I will abstain from drawing any definitive conclusion in that regard.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-42", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 61–62", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "That said, I have not been convinced that the exclusion of the Diploma by the RAD is contrary to the principles of fundamental justice, even assuming that the exclusion of that evidence affects the respondent’s right to life, liberty and security.\n\nHowever, there is more. A close reading of Doré shows that an administrative decision-maker’s obligation to enforce Charter values arises only if it is exercising statutory discretion: Doré, para. 55; Loyola, para. 35; R v. Clarke, 2014 SCC 28 at para. 16, [2014] 1 S.C.R. 612. When legislation or regulations are clear and unambiguous, it is not up to the courts to rewrite them on the pretext of ensuring conformity with Charter values (Najafi v. Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 262 at para. 107, [2015] 4 F.C.R. 162; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 at para. 67, [2014] 3 S.C.R. 431). Except under exceptional circumstances, the courts only have the authority to declare invalid legislation that is unconstitutional, and only if the issue is explicitly raised and the Attorney General has been notified. It is up to Parliament to amend legislation that has been declared unconstitutional so as to ensure compliance with the fundamental law of the land.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-43", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 63", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, subsection 110(4) is not written in an ambiguous manner and does not grant any discretion to the RAD. As mentioned above (see paras. 34, 35 and 38 above), the admissibility of fresh evidence before the RAD is subject to strict criteria and neither the wording of the subsection nor the broader framework of the section it falls under could give the impression that Parliament intended to grant the RAD the discretion to disregard the conditions carefully set out therein. Moreover, this approach complies perfectly with this Court’s decision in Raza. The criteria set out in that decision regarding paragraph 113(a), which, moreover, are not necessarily cumulative, do not replace explicit legal conditions; rather they add to those conditions to the extent that they are “necessarily implied” from the purpose of the provision, to reiterate this Court’s words at paragraph 14 of Raza. Otherwise, this would mean ignoring the conditions set out at subsection 110(4) and then delving into a balancing exercise between Charter values and the objectives sought by Parliament. In the absence of a direct challenge to this legislation, it should be given effect and the RAD has no choice but to comply with its requirements.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-44", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 64–65", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.\n\nThus, it is my opinion that the RAD did not err in using “mutatis mutandis” the implicit criteria from Raza to interpret subsection 110(4); this interpretation seems not only reasonable but also correct. Furthermore, the RAD could reasonably find that the Diploma was inadmissible because it could not be considered fresh evidence. The RAD essentially based its finding on the fact that the respondent had access to the Diploma at the time of his hearing before the RPD on April 2, 2013, since the CBSA had sent a copy of it to his counsel and he could have obtained a copy from the CBSA and submitted it himself as evidence to the RPD.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-45", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 66", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is true that the immigration officer apparently did not submit the Diploma to the RPD, as he should have under subsection 3(5) of the RPD Rules. Furthermore, the respondent contends that he only learned in June 2013 that his lawyer before the RPD had received a copy of that document in February 2013. However, that claim by itself is not enough to relieve the respondent of any responsibility. It is settled that an applicant must live with the consequences of the actions of his counsel: Cove c. Canada (Minister of Citizenship and Immigration), 2001 FCT 266 at paras. 6-11, [2001] F.C.J No. 482. As the Federal Court noted in Nagy v. Canada (Minister of Citizenship and Immigration), 2013 FC 640 at para. 60, [2013] F.C.J No. 664, “[t]here is a high threshold governing the circumstances and evidentiary criteria that must be met before the Court will grant relief under section 18.1 of the Federal Courts Act on the basis of the negligence of counsel.” See also: Bedoya v. Canada (Minister of Citizenship and Immigration), 2007 FC 505 at para. 19, [2007] F.C.J No. 680.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-46", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 67", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In this respect, I would note that it is settled in Federal Court immigration jurisprudence that an allegation of professional incompetence of counsel will not be upheld if there is no evidence that a complaint has been filed with the competent authorities of the bar to which the counsel belongs or without an explanation personally issued by the professional involved: see as examples, Odafe v. Canada (Minister of Citizenship and Immigration), 2011 FC 1429 at para. 8, [2011] F.C.J No. 1762; Teganya v. Canada (Minister of Citizenship and Immigration), 2011 FC 336 at paras. 26-37, [2011] F.C.J No. 430; Parast v. Canada (Minister of Citizenship and Immigration), 2006 FC 660 at para. 11, [2006] F.C.J No. 844; Yang v. Canada (Minister of Citizenship and Immigration), 2008 FC 269 at paras. 17-28, [2008] F.C.J No. 344. Indeed, the Federal Court adopted a protocol in March 2014 outlining the procedure when a party wishes to make such an allegation, and in particular setting out the obligation to send a notice to counsel who is the subject of the allegations that are to be made against him or her and invite him or her to provide a response that could be submitted to the Court (Procedural Protocol Re: Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court (March 7, 2014), on line: Federal Court of Canada ).", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-47", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 68–70", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In this case, the judge determined that it was unreasonable for the RAD to expect the applicant to know of the complaints procedure before the Barreau du Québec, much less be willing to attack the competence and ethics of his former counsel. I do not share that opinion. Not only does the judge not cite any precedent to support her finding, but she also ignores the fact that the applicant was represented by experienced counsel before the RAD.\n\nIn short, the RAD could reasonably conclude in the circumstances that the Diploma did not constitute new evidence. This piece of evidence is not new; it was accessible to the respondent, and his lawyer had received a copy from the CBSA. Since the respondent had not raised the issue of his lawyer’s incompetence nor lodged any complaint against her with the appropriate authorities, the RAD had no choice but to reject this evidence in accordance with subsection 110(4) of the IRPA.\n\nLastly, the judge invoked the possibility that inadmissibility of evidence could give rise to “serious issues of procedural equity” because a claimant who is deserving of a hearing could be refused one. In her opinion, such was the case here: “In the case at bar, the applicant was in fact denied a hearing because the 2002 school diploma was deemed inadmissible” (para. 53).", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-48", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 71–72", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, as mentioned above, holding a hearing is not automatic simply because new evidence is admitted before the RAD. This new evidence must still meet the three criteria set out in subsection 110(6) of the IRPA. In this case, there was not even an attempt to show how the Diploma was determinative in establishing the respondent’s credibility and how it would make up for the various shortcomings that the RPD identified in his testimony and that were confirmed by the RAD. It should be recalled that the RPD found that the respondent’s narrative was deficient in several respects: he contradicted himself about precisely when his father had had a heart attack; neither his allegations of torture nor his father’s purported medical condition are corroborated by the medical evidence; he presented as evidence fraudulent and altered documents; and he took no steps to obtain probative, acceptable documents with which to establish his identity. In light of all these factors, it is far from a given that the Diploma would be essential in deciding the respondent’s refugee protection claim and would warrant allowing this claim.\n\nConsequently, it cannot be assumed that admitting this document into evidence would have led to a hearing or that its rejection undermined procedural fairness. Nor can one invoke the possibility that a hearing might have resulted from the admission into evidence of the Diploma to argue for a flexible interpretation of subsection 110(4): not only does holding a hearing in the present case seem highly theoretical, but the admissibility of a piece of evidence cannot be assessed by taking account of the consequences that could result for the purposes of applying subsection 110(6).", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-49", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 73", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "For all the above reasons, I am of the opinion that the appeal should be allowed, that the Federal Court judgment should be set aside and that the RAD decision should be confirmed. Accordingly, the respondent is not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the IRPA.", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-50", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 74", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "I would answer the two certified questions submitted to this Court as follows: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? Answer: The RAD’s interpretation of subsection 110(4) of the IRPA must be reviewed in light of the reasonableness standard, in accordance with the presumption that an administrative agency’s interpretation of its home statute should be shown deference by the reviewing court. 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? Answer: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. However, the requirement concerning the materiality of the new evidence must be assessed in the context of subsection 110(6), for the sole purpose of determining whether the RAD may hold a hearing. “Yves de Montigny” J.A. “I agree M. Nadon J.A.” “I agree Johanne Gauthier J.A.” Translation FEDERAL COURT OF APPEAL", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-37663-1", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 1–4", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Luis Alberto Hernandez Febles, a national of Cuba, was convicted in the United States in 1984 and 1993 of assault with a deadly weapon. He came to Canada in 2008 after completing his prison sentences and claimed refugee status.\n\nThe Refugee Protection Division of the Immigration and Refugee Board (RPD) held that Article 1F (b) of the United Nations Convention relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No 6 (Convention) excluded him from the definition of a refugee. This was because his convictions in the United States provided serious reasons for considering that he had committed “a serious non-political crime” outside Canada.\n\nMr Febles says that alcohol was a factor that led to his commission of these crimes, he has served his sentences, and is now rehabilitated. He argues that the purposes of Article 1F (b) are to prevent ordinary criminals from escaping local criminal justice by acquiring refugee status, and to protect the public of a receiving state from convicted criminals who are dangerous. Since Mr Febles had served his sentence, he was not a fugitive from justice. Consequently, he says, the RPD was obliged to consider whether, despite his criminal record, he represents a danger to the Canadian public.\n\nThe question to be decided in this appeal is whether the RPD erred in law because, in determining if Mr Febles was excluded from refugee status on the ground that he had committed a “serious” crime within the meaning of Article 1F (b), it failed to consider whether he was rehabilitated and posed a present danger.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-2", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 5–8", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, the RPD correctly concluded that whether a refugee claimant who has served his sentence poses a present danger to the Canadian public is not relevant for determining the seriousness of a crime for the purpose of Article 1F (b). Accordingly, I would dismiss the appeal from the decision of the Federal Court (2011 FC 1103), in which Justice Scott (Application Judge) denied Mr Febles’ application for judicial review to set aside the RPD’s decision. B. FACTUAL BACKGROUND\n\nMr Febles left Cuba in 1980 and was accepted by the United States as a refugee by virtue of his fear of persecution as a political dissident. However, he subsequently lost his refugee status as a result of his criminal convictions, and is subject to an administrative warrant of removal from the United States.\n\nMr Febles entered Canada illegally on October 12, 2008, and two days later applied for refugee protection on the ground of a well-founded fear of persecution in Cuba for his political beliefs. During his interview with an officer of the Canada Border Services Agency (CBSA) to determine whether the claim was eligible to be referred to the RPD, Mr Febles revealed his criminal convictions in the United States.\n\nOn the basis of a report filed by a CBSA officer, Mr Febles was referred to the Immigration Division of the Immigration and Refugee Board for an inadmissibility hearing. Following that hearing, Mr Febles was found to be inadmissible and a deportation order was issued dated June 3, 2010. The basis of the inadmissibility finding was that he had been convicted of an offence outside Canada for which he could have been sentenced to a maximum of at least 10 years’ imprisonment if it had been committed in Canada.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-3", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 9–10", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Despite Mr Febles’ criminal record, a CBSA officer decided not to request the Minister of Citizenship and Immigration (MCI) for an opinion as to whether his claim was ineligible to be referred to the RPD on the ground that he posed a danger to the public in Canada. Nonetheless, on August 10, 2010, the Minister of Public Safety and Emergency Preparedness (MPSEP) filed a notice of intervention in Mr Febles’ hearing before the RPD, alleging that Article 1F (b) excluded him from the definition of a refugee because there were serious reasons for considering that he had committed a serious non-political crime outside Canada. C. DECISION OF THE RPD\n\nIn its reasons for decision, dated October 27, 2010, the RPD described the circumstances surrounding the crimes of which Mr Febles had been convicted in 1984 and 1993, that is, assaults with a deadly weapon other than a firearm. He had been sentenced to two years in prison and three years on probation for each of these offences. He testified that he served just over a year of the first sentence, and then spent more time in prison for breaching the conditions of his probation. He served the entirety of the second sentence and observed his probation conditions. He said that since 1993 he has been sober and has not re-offended.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-4", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 11–13", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Focussing on the second offence, the RPD noted that Mr Febles’ conviction had been for an offence for which a maximum sentence of at least 10 years’ imprisonment could be imposed if committed in Canada, and that this raised a presumption that the crime was “serious”. However, it also stated that this presumption could be rebutted by other factors. Nonetheless, the RPD concluded that the gravity of Mr Febles’ crime excluded him from refugee protection, even though he had committed the more recent of the crimes 17 years ago, was remorseful, had served his sentence, and has chosen “to follow a straighter path” since 1993 (RPD reasons at para. 24). D. DECISION OF THE FEDERAL COURT\n\nThe Application Judge relied on Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R 164 at para. 44 (Jayasekara) for the proposition that in determining whether a refugee claim is excluded by Article 1F (b) a court should not balance the seriousness of the crime as indicated by the maximum punishment that it carries if committed in Canada against “factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin”.\n\nAccordingly, the Application Judge held (at para. 50) that Mr Febles’ completion of his sentence was relevant only to the seriousness of the crime, not to “rehabilitation, expiation, recidivism and on-going danger.” The RPD was precluded from taking rehabilitation into account in assessing the seriousness of the crimes committed by Mr Febles. It had therefore not unlawfully fettered the exercise of its discretion by failing to address whether he currently posed a danger to the Canadian public.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-5", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 14–16", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Application Judge certified the following question for appeal to this Court pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, 2001 S.C., c. 27 (IRPA): When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?\n\nFor the reasons that follow I would answer the certified question in the negative and dismiss the appeal. E. LEGISLATIVE FRAMEWORK\n\nAn understanding of the issue raised in this appeal depends in part on locating it within the complex statutory scheme created by IRPA for the consideration of criminality in a variety of contexts.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-6", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 17", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Paragraph 36(1)(b) of IRPA applies to all non-nationals and describes the circumstances in which they are inadmissible to Canada on the basis of criminal convictions outside Canada. However, paragraph 36(3)(c) provides that persons to whom paragraph 36(1)(b) applies are not inadmissible if, after the prescribed period, they satisfy the MCI that they have been rehabilitated. 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for … (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or … 36. (3) The following provisions govern subsections (1) and (2): … (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated; 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : […] b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] 36. (3) Les dispositions suivantes régissent l’application des paragraphes (1) et (2) : […] c) les faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui, à l’expiration du délai réglementaire, convainc le ministre de sa réadaptation ou qui appartient à une catégorie réglementaire de personnes présumées réadaptées;", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-7", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 18", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Section 101 of IRPA describes claims that are not eligible to be referred to the RPD. These include claims for refugee protection by claimants who are inadmissible to Canada for serious criminality under subsection 36(1) and whom the MCI believes are a danger to the public in Canada. 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless … (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. 101. (1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) — , grande criminalité ou criminalité organisée.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-8", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 18–20", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "(2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : […] b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada.\n\nEven when a claim is not ineligible to be referred to the RPD under section 101, in some situations the RPD must reject it. Article 1F (b) of the Convention, which section 98 of IRPA incorporates into IRPA by reference, sets out the situation relevant to the present appeal. 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.\n\nArticle 1F (b) of the Refugee Convention provides as follows. 1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: … (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; … 1F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : [��] b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; […]", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-9", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 21", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Although excluded from refugee status by the above provisions and subject to a removal order on the ground of inadmissibility, a claimant may apply to the MCI for a pre-removal risk assessment (PRRA). However, paragraph 112(3)(c) provides that applicants for protection on a PRRA cannot be granted protection as refugees as defined by section 96 if their claim for refugee protection was rejected pursuant to Article 1F. Paragraph 113(d)(i) states that an immigration officer will consider the PRRA of these applicants for protection on the basis of the risk factors set out in section 97 (death, torture, or cruel and unusual treatment or punishment) and whether they are a danger to the public in Canada. Even if denied refugee status by subsection 112(3), successful applicants for a PRRA can obtain a stay of removal by virtue of subsection 114(1). 112. … (3) Refugee protection may not result from an application for protection if the person … (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; … (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; … 113.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-10", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 21", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Consideration of an application for protection shall be as follows: … (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or … 112. […] (3) L’asile ne peut être conféré au demandeur dans les cas suivants : […] b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; […] 113. Il est disposé de la demande comme il suit : […] d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, […] 114. (1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. 114.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-11", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 21–23", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. F. ANALYSIS (i) Standard of review\n\nMr Febles argues that correctness is the standard of review applicable to the RPD’s interpretation of Article 1F (b) of the Convention, which is incorporated into IRPA by section 98, the RPD’s enabling statute. Although reasonableness is now presumed to be the standard of review normally applied to a tribunal’s interpretation of its enabling statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39), Mr Febles submits that the presumption of reasonableness is rebutted in this case.\n\nThe Minister takes no position on this issue, arguing that the appeal must fail whichever standard of review applies, and that it is therefore unnecessary for the Court to decide the issue. Federal Court jurisprudence on the standard of review applicable to the RPD’s interpretation of Article 1F (b) is not settled. For example, the Application Judge in the present case applied the reasonableness standard, while in Feimi v. Canada (Minister of Citizenship and Immigration), 2012 FC 262, the companion case before us, a different Application Judge applied correctness. The existence of this kind of uncertainty is sufficient reason for this Court to decide the standard of review applicable to the RPD’s interpretation of Article 1F (b).", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-12", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 24–26", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "I agree with Mr Febles that the normal presumption that reasonableness is the standard of review applicable to tribunals’ interpretation of their enabling statute does not apply in this case. Article 1F (b) is a provision of an international Convention that should be interpreted as uniformly as possible: see, for example, Jayasekara at para. 4. Correctness review is more likely than reasonableness review to achieve this goal, and is therefore the standard to be applied for determining whether the RPD erred in law by interpreting Article 1F (b) as precluding consideration of Mr Febles’ post-conviction rehabilitation and his present dangerousness. Further, the interpretation of Article 1F (b) does not give rise to any ambiguity.\n\nAccordingly, the prior jurisprudence of this Court applying the correctness standard of review to the RPD’s interpretation of Article 1F (b) should be regarded as having satisfactorily resolved the issue: Dunsmuir para. 62. (ii) Is rehabilitation or present dangerousness relevant to deciding if a non-political crime is “serious”?\n\nMr Febles concedes that a crime punishable by a maximum of 10 years’ imprisonment if committed in Canada is presumed by Canadian courts to be “serious” for the purpose of Article 1F (b), and that the crimes of which he was convicted in the United States fall into this category.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-13", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 27–29", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, he argues that the seriousness of a crime must be assessed as of the time when the exclusion issue comes to be decided. Mr Febles submits that the purpose of Article 1F (b) relevant to the present case is to protect receiving states from having to grant refugee status to dangerous criminals. Consequently, a crime should not normally be regarded as “serious” if the claimant has served the sentence imposed and is no longer dangerous. Accordingly, the RPD erred in law when it failed to consider his rehabilitation after 1993 and whether he currently posed a danger to the Canadian public.\n\nThe Application Judge regarded Jayasekara as precluding the RPD from considering whether Mr Febles was rehabilitated and currently dangerous. Mr Febles argues that Jayasekara does not resolve the issue because it is either distinguishable or wrong and should not be followed. (a) What Jayasekara decided\n\nThe certified question put to the Court in Jayasekara was whether the fact that a refugee claimant who had committed a serious crime outside Canada had served his sentence enabled him to avoid the application of Article 1F (b). After examining Canadian and international jurisprudence on the issue, the Court answered the question in the negative.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-14", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 30–32", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, the heart of the Court’s reasoning in Jayasekara is contained in paragraph 44 of the reasons where, writing for the Court, Létourneau J.A. said: I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F (b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction. … In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin. …. [Emphasis added]\n\nAn argument that a crime may be regarded as less serious years after its commission because the claimant is rehabilitated and is no longer a danger to the public would seem inconsistent with this passage. Rehabilitation is indisputably a factor “extraneous to the facts and circumstances underlying the conviction”. It is therefore not to be balanced against the presumed seriousness of the crime arising from the fact that, if committed in Canada, the crime is punishable by a maximum of at least 10 years’ imprisonment.\n\nHowever, Mr Febles says that, while Jayasekara decides that completing a sentence does not in itself remove a claimant from the application of Article 1F (b), it is still a factor that the RPD may consider. If the RPD may consider sentence completion, he argues, it may also consider other post-conviction facts, including rehabilitation.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-15", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 33–35", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In this regard, Mr Febles points to paragraph 41 of the reasons of Létourneau J.A., where he stated that if the length or completion of a sentence is to be considered under Article 1F (b), “it should not be considered in isolation.” However, I cannot attach the same significance as Mr Febles to this single reference to the completion of a sentence.\n\nFirst, the discussion following paragraph 41 explains why the length of a sentence is an unreliable guide to the seriousness of a crime, and hence is often of little value on assessing the seriousness of the crime. The completion of a sentence is not even mentioned in this discussion. Second, neither the length nor completion of a sentence is included in the factors listed in paragraph 44 that may rebut the presumption of seriousness arising from the maximum sentence that could be imposed if the crime had been committed in Canada. Third, to interpret Jayasekara as allowing members of the RPD the discretion to consider completion of a sentence would likely lead to a lack of consistency in RPD decision-making bordering on arbitrariness.\n\nIn short, I agree with Justice Mosley in Camacho v. Canada (Minister of Citizenship and Immigration), 2011 FC 789 at para. 16, that it follows from the reasoning in Jayasekara that the mitigating circumstances to be considered by the RPD when determining whether a crime is “serious” for the purpose of Article 1F (b) do not include whether the claimant is rehabilitated and a danger to the public in Canada. These considerations are “extraneous to the facts and circumstances underlying the conviction”. (b) Should Jayasekara be followed?", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-16", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 36–38", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In the alternative, Mr Febles says that the reasoning in Jayasekara is flawed and should not be followed. He identifies what he says are two errors in the Court’s reasoning. First, the Court erred in distinguishing Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.) (Chan) on the ground that there had been a material amendment to the legislation after Chan was decided. Second, the authorities cited for the propositions contained in paragraph 44 do not in fact support them.\n\nIn order to deal with the first point, it is necessary to briefly retrace the history of the interpretation of Article 1F (b) by this Court.\n\nChan held that Article 1F (b) applied to refugee claimants who were seeking to avoid extradition from Canada, and not to those who had been convicted of a crime outside Canada and had served their sentence before arriving here. To interpret the exclusion clause as applicable to the latter category of claimants would, said the Court, conflict with the scheme of the legislation, and operate to automatically deny that person’s right to a refugee hearing, regardless of [the person’s] attempts at rehabilitation and whether or not [they] constitute a danger to the Canadian public. In particular, the Court noted that criminality does not automatically render individuals inadmissible if the MCI is satisfied that they are rehabilitated. In the passage quoted above the Court may have left open the possibility that convicted criminals who have served their sentence could be excluded by Article 1F (b) if they were a danger to the public in Canada.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-17", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 39–40", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "This Court subsequently took a broader view of Article 1F (b) than that advanced in Chan. Thus, in Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, the claimant relied on Chan to argue that Article 1F (b) did not apply to him because he could not be extradited for the crimes that there were serious reasons for considering that he had committed, namely, being complicit by association in serious non-political crimes committed by an organization in which he had a leadership role.\n\nThe Court did not agree. Writing for the majority, Nadon J.A. said (at paras. 66 and 79 in particular) that a refugee claimant could be excluded under Article 1F (b) when there were serious reasons for considering that he had committed a serious non-political crime. It was not relevant for this purpose, he said, that the claimant could not be extradited because, for example, Canada had not concluded an extradition treaty with the state where the claimant’s crime was allegedly committed, or a specific crime could not be attributed to the claimant.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-18", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 41–42", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In concurring reasons, Décary J.A. (at paras. 118-129) reviewed the various purposes that Article 1F (b) was intended to serve, including (at para. 118) … ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. He further explained this purpose by saying (at para. 119): … [It] indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This … purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum.\n\nI should point out that, unlike Mr Febles, Zrig had not been convicted of any crime, much less served a sentence. Hence, in formulating his understanding of the purposes of Article 1F (b), Décary J.A. was not addressing the specific question at issue in the present appeal, namely, whether Article 1F (b) applies to a refugee claimant who has completed a sentence for a crime which, if committed in Canada, is punishable by a maximum of at least 10 years’ imprisonment, but who poses no danger to the public.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-19", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 43–45", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is thus clear from Zrig that, even before Jayasekara was decided, the Court had disavowed the holding in Chan that Article 1F (b) only extends to preventing a refugee claimant from avoiding extradition. Jayasekara hammered another nail into Chan’s coffin by deciding that Article 1F (b) does not cease to apply because the claimant has been convicted of a serious crime and has completed the sentence. This conclusion had been foreshadowed by Décary J.A. in Zrig, where he said (at para. 129) that Article 1F (b) enabled a state to exclude perpetrators of serious crimes, whether or not they had been convicted and served the sentences imposed on them.\n\nFurther, by excluding facts “extraneous to the facts and circumstances underlying the conviction” from the factors to be considered in assessing the seriousness of the crime, the Court in Jayasekara in effect overruled the holding in Chan that Article 1F (b) does not exclude a claimant who has completed his sentence, unless, perhaps, the claimant poses a danger to the public in Canada.\n\nI am willing to assume for present purposes that the Court in Jayasekara erred in saying that statutory amendments had undermined the conclusion in Chan that a wider reading of Article 1F (b) was inconsistent with the scheme of the statute. Nonetheless, this error is an insufficient basis for finding that the decision in Jayasekara was wrongly decided and should not be followed. Having approved the multiple purposes of Article 1F (b) that Décary J.A. identified in Zrig and having reviewed international jurisprudence, the Court clearly intended to restate the applicable law. In these circumstances, the error alleged is not material. In the light of Zrig and Jayasekara, it is clear that Chan is no longer good law.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-20", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 46–48", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nor do I agree with Mr Febles’ second ground for saying that Jayasekara was wrongly decided, namely that the cases cited by the Court in Jayasekara do not support the propositions in paragraph 44 of the reasons. In my view, only one of those cases (Miguel-Miguel v. Gonzales, 500 F.3d 941) was arguably not directly on point. This is not a basis on which Jayasekara can be said to have been wrongly decided. (c) Interpreting Article 1F (b)\n\nThis is sufficient to dispose of the appeal. Nonetheless, because the parties have fully canvassed the meaning of Article 1F (b) as it appears in IRPA, and the issue is important, I shall address Mr Febles’ broader argument that Jayasekara should not be followed because it rests on a fundamental misunderstanding of the purposes of Article 1F (b) and renders incoherent the scheme of IRPA with respect to criminality.\n\nMr Febles’ argument is that Article 1F (b) applies first and foremost to refugee claims by fugitives from justice in the country where they are suspected of having committed a serious non-political crime. It was intended to apply only exceptionally to those who have completed their sentence, that is, when they pose a continuing danger to the receiving state.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-21", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 49–51", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "This position is supported by the United Nations High Commissioner for Refugees, (UNHCR) Guidelines on International Protection: Application of Exclusion Clause: Article 1F of the Convention relating to Refugees, (HCR/GIP/03/05, 4 September, 2003) (Guidelines). Paragraph 23 of the Guidelines states that a claimant’s expression of regret for the crime may be considered in determining whether exclusion is justified. The UNHCR’s Handbook on Procedures and Criteria for determining Refugee status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979) also indicates that Article 1F (b) was intended to protect receiving states from having to afford refugee protection to dangerous criminals: see paras. 148 and 157.\n\nThese documents are not determinative of the interpretation of the Convention. In my view, on the basis of the text of Article 1F (b), its known purposes, the scheme of IRPA, and international jurisprudence, Article 1F (b) should be interpreted as excluding rehabilitation and present dangerousness from the assessment of the seriousness of a crime committed by a refugee claimant before coming to Canada. (i) text\n\nArticle 1F (b) applies to “a serious crime of a non-political nature”. It is drafted in very broad terms. Unlike other provisions of IRPA, Parliament has not expressly limited the application of the Article to claimants who pose a current danger to the Canadian public. Courts should normally avoid an interpretation of legislation that requires words to be read into it: R. v. McIntosh, [1995] 1 S.C.R. 686 at para. 26; and see S. v. Status Appeals Authority, [1998] 2 NZLR 291 (CA) applying this interpretative principle to Article 1F (b).", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-22", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 52–55", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, the ordinary meaning of the text of Article 1F (b) is that whether a crime is serious for exclusion purposes is to be determined on the basis of the facts listed by this Court in Jayasekara. The seriousness of a crime is to be assessed as of the time of its commission; its seriousness does not change over time, depending on whether the claimant is subsequently rehabilitated and ceases to pose a danger to the public. (ii) purposes\n\nThe interpretation of statutory language must always be considered in light of the purposes of the provision in question. However, when the meaning of a statute seems clear and unequivocal from its text, statutory purpose may be less important in the interpretative exercise, although “the court must always seek to read the provisions of an Act as a harmonious whole”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10.\n\nMr Febles’ central argument is that because he has served his sentence, and is therefore not a fugitive from justice in the United States, the only purpose of Article 1F (b) relevant to the facts of this case is the protection of the public in Canada from currently dangerous criminals.\n\nAccordingly, he says, the RPD could only have found that he was excluded from refugee status after considering whether he was rehabilitated and currently posed a danger to the public in Canada. An interpretation of Article 1F (b) to include non-fugitives who are rehabilitated and pose no danger to the host state would, he argues, be inequitable.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-23", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 56–58", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "I do not agree. In my view, Mr Febles’ argument oversimplifies the purposes underlying Article 1F (b). In Jayasekara, Létourneau J.A. quoted with approval (at para. 28) the description of the various purposes of Article 1F (b) identified by Décary J. A. in Zrig, which I have set out at paragraph 41 of these reasons.\n\nDécary J.A. was not, of course, dealing with the issue raised by the present appeal. It is not altogether clear whether he was of the view that the purposes of Article 1F (b) requires a discrete consideration of the claimant’s present dangerousness, or whether he considered that the dangerousness of a claimant was inherent in the nature of the crime committed.\n\nHowever, the issue now before us has recently been addressed by the European Court of Justice and the German Federal Administrative Court in a case involving a refugee claimant who had not completed his sentence in Turkey before he went to Germany and claimed refugee status. The Courts stated that Article 1F (b), which is incorporated into the law of the European Union by Directive 2004/83/EC, does not require that a refugee claimant with a serious criminal conviction must also pose a present danger to the receiving state. Because international law should be interpreted as uniformly as possible, this Court should attach significant weight to pronouncements by senior courts in other jurisdictions on the very issue that is before us.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-24", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 59", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus, in B (Area of Freedom, Security and Justice), [2010] EUECJ C-57/09 (B), the European Court wrote (at para. 104): … the grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails and of preventing that status from enabling those who have committed certain serious crimes to escape criminal liability. Accordingly, it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State. [Emphasis added]", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-25", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 60", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The German Federal Administrative Court (BVerwG 10 C 48.07 OVG 8 A 2632/06.A, October 14, 2008), which had referred B to the European Court, delved deeper into the purposes underlying Article 1F (b) by examining its legislative history. Thus, it wrote (at paras. 29-30): [The exclusion clauses] are intended to protect refugee status from abuse, by keeping it from being granted to undeserving applicants. … According to the Travaux Préparatoires [of the Convention], the fundamental difference between reasons for exclusion – tied to previous personal misconduct – and the exceptions from the non-refoulement imperative – intended to protect the host state – was evident in the deliberations. In the case of the exclusion clauses, the deciding factor for the representatives of the states was not whether the refugee currently posed a danger, but the distinction between ‘bona fide’ and criminal refugees. … The group of persons covered by the exclusion clauses because of their misconduct, was not to be set on a par with ‘bona fide refugees.’ The intent was to prevent refugee status from being discredited by including criminals in the group of recognised refugees (‘refugees whose actions might bring discredit on that status’…). There is no support in either the background materials to the Geneva Refugee Convention or the international practice of nations for the UNHCR’s opinion that the aim and purpose of considering a serious non-political crime a reason for exclusion is to protect the community of a receiving country from the danger as admitting a refugee who has committed a serious common crime. [Emphasis added]", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-26", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 61–63", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Court stated its conclusion succinctly (at para. 28): Mere ‘unworthiness for protection’ on the basis of prior acts suffices for the application of the exclusion clauses; it is not necessary that the foreigner should still pose such dangers as he manifested in his previous conduct.\n\nI agree that it is clear from the Travaux Préparatoires that the drafters did not intend to limit the exclusion provision to fugitives from justice. However, I am less sure than the Courts in B that the Travaux Préparatoires conclusively demonstrate that the drafters intended to exclude other refugee claimants with a serious criminal record, even though they were rehabilitated and not a danger. Much of the discussion involved the definition of the crimes that would exclude a claimant from refugee status, and the concern of the United Kingdom Delegate that individuals who had committed a minor offence should not be excluded. On the other hand, I do not see in the Travaux Préparatoires evidence of an intention on the part of the Delegates only to exclude from refugee status criminals convicted of a serious crime who have served their sentence if they remain dangerous.\n\nI conclude, therefore, that the purposes underlying Article 1F (b) do not so clearly limit its intended scope to protecting the state of refuge from currently dangerous criminals as to warrant an interpretation that is markedly narrower than the ordinary meaning of the text. (iii) statutory context", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-27", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 64–66", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr Febles argues that a theme running through IRPA is that the adverse consequences that flow from serious criminality can be mitigated if the claimant satisfies the MCI that she is rehabilitated. Thus, he says, it would be inconsistent with the statutory scheme of IRPA to interpret Article 1F (b) as excluding from refugee status those who have committed serious crimes outside Canada, regardless of how long ago the crimes were committed or whether they are rehabilitated and currently pose no danger to the public.\n\nThe problem with this argument, in my view, is that it pays insufficient attention to the different purposes served by the provisions in question. A claim is ineligible even to be referred to the RPD for adjudication if the claimant is inadmissible for serious criminality by virtue of a conviction outside Canada and the Minister is of the opinion that the claimant is a danger to the public in Canada: IRPA, paragraphs 101(1)(f), and (2)(b). A purpose of this provision is to enable the speedy removal from Canada of dangerous persons: Harris v. Canada (Minister of Citizenship and Immigration), 2001 FCA 235, [2001] 4 F.C. 495 at para. 28.\n\nThere is no inconsistency between a CBSA officer’s decision not to seek an opinion from the MCI on whether Mr Febles’ claim was ineligible to be referred to the RPD because of his present dangerousness, and the decision of the MPSEP to intervene at the RPD to argue that Article 1F (b) excludes Mr Febles from the refugee definition because of his convictions. The tests for ineligibility and exclusion are simply not the same.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-28", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 67–69", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Dangerousness to the Canadian public is also relevant under IRPA’s provisions on pre-removal risk assessment. Thus, under the statutory provisions relevant to the present case, a claim for protection by Mr Febles, a person inadmissible by reason of serious criminality, would be considered by the MCI on the basis of the risks set out in section 97 of IRPA, and whether he is a danger to the public: paragraphs 112(3)(b) and 113(d)(i). Thus, protecting the public from convicted criminals who still pose a danger to Canada may trump a claim for protection.\n\nIf an application by Mr Febles for protection were allowed on a PRRA, on the ground that the personal risks that he would face if returned outweighed the risk to the Canadian public if he remained, his removal would be stayed: paragraph 114(1)(b). Further, section 7 of the Canadian Charter of Rights and Freedoms (Charter) will normally also prevent the MCI from removing an individual to a country where their Charter-protected rights may be in jeopardy: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 58.\n\nApplying for and obtaining a stay of removal from the MCI under the PRRA provisions may not be as satisfactory to Mr Febles on grounds of process and substance as an application to the RPD for the grant of refugee protection and the rights attached to that status. Nonetheless, protection would comply with the non-refoulement principle for those who are excluded from refugee status for serious criminality, but if removed are at risk of death, torture, cruel and unusual treatment or punishment, or the deprivation of other rights guaranteed by section 7 of the Charter.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-29", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 70–73", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The availability of protection under the PRAA provisions for non-dangerous criminals thus goes a long way to answering Mr Febles’ argument that it is inequitable to exclude individuals from refugee protection on the basis of their criminal record and the surrounding facts without any consideration of whether they are currently dangerous.\n\nMr Febles also argues that the broad interpretation of Article 1F (b) is inconsistent with the provision that individuals are not inadmissible under subsection 36(1) of the IRPA if they satisfy the MCI that they are rehabilitated and meet the criteria prescribed in paragraph 36(3)(c). It suffices to say that the purposes served by the inadmissibility provisions are different from those of Article 1F (b).\n\nFor example, one reason for the exclusion of claims for refugee protection by those who have committed serious crimes appears to be to protect the integrity of refugee status, a purpose for which an assessment of their current dangerousness is irrelevant. In addition, as already noted, those excluded from refugee status on the ground of serious criminality may still be permitted to remain in Canada if facing any of the specified risks in the country to which they would otherwise be removed.\n\nIn summary, there is, in my view, no inconsistency between a broad interpretation of Article 1F (b) and other provisions of the IRPA dealing with criminality that would warrant interpreting the broad language of Article 1F (b) in the limited manner urged by Mr Febles. The scheme of IRPA suggests to me that when Parliament intends to make rehabilitation relevant, it says so expressly. G. CONCLUSIONS", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-30", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 74–77", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "For these reasons, I would dismiss the appeal and answer the certified question as follows. Question: When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue? Answer: No. “John M. Evans” J.A. “I agree K. Sharlow J.A.” STRATAS J.A. (Concurring Reasons)\n\nI wish to comment on my colleague’s discussion of the standard of review (paragraphs 22-25 of his reasons). In particular, I wish to address the suggestion that the need for uniformity in the interpretation of Article 1F (b) is a factor in favour of correctness review.\n\nWorld-wide uniform interpretations of the provisions in international conventions may be desirable. However, that depends on the nature of the provision being interpreted and the quality and acceptability of the interpretations adopted by foreign jurisdictions. For example, foreign interpretations may not always embody values and principles to which we subscribe. I do not read paragraph 4 of Jayasekara, supra as saying something different on this.\n\nIn particular cases, our courts are well-placed to assess whether their decisions should conform to foreign decisions. But some of our tribunals are equally well-placed to assess that – sometimes even better-placed – armed as they are with specialized understandings, policy appreciation, and expertise. In some cases, reasonableness review, not correctness review, may be warranted.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-31", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 78–81", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Dunsmuir, supra, the Supreme Court has developed certain categories of questions which require correctness review. The interpretation of provisions in international conventions is not yet one of them. Nor should it be. International conventions address many subjects, some quite technical and narrow. Some of those subjects can benefit from interpretations and applications by tribunals with specialized understandings, policy appreciation, and expertise. Again, on occasion, reasonableness review, not correctness review, may be warranted.\n\nIn the end, the choice of standard of review makes no practical difference in this case: ● Reasonableness review. The cogent reasons offered by my colleague amply demonstrate that the RPD’s interpretation of Article 1F (b) is well within the range of the acceptable and defensible and, therefore, passes muster under reasonableness review. ● Correctness review. The standard of review was not specifically addressed in Jayasekara, supra, but I agree that the reasoning in it smacks of correctness review. If, as my colleague suggests, the standard of correctness review is to be adopted in this case in accordance with paragraph 62 of Dunsmuir, supra, his reasoning amply demonstrates the correctness of the RPD’s decision.\n\nFor this reason, I agree with the Minister’s submission that we need not determine the standard of review in this case.\n\nSubject to these comments, I concur with my colleague’s reasons. “David Stratas” J.A. FEDERAL COURT OF APPEAL", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-36253-1", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 1–2", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal from a decision of Strayer J. of the Federal Court (judge) who dismissed the appellant’s application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (Board). The judge certified the two following questions for analysis by this Court: 1. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? 2. If the answer to question 1 is affirmative, if a person is forced to leave the country where the crime was committed prior to the completion of his sentence, does this have the effect of deeming the sentence to have been served? In application of section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and the exclusion clause in Article 1F(b) of the Convention, the Board found that the appellant was not a Convention refugee or a person in need of protection. In addition, the Board ruled that the appellant was not credible and did not meet the criteria of the Convention. There is no appeal from this second finding of the Board. From that perspective, the appeal is moot.\n\nHowever, a person who, pursuant to section 98 of the IRPA, is excluded as a Convention refugee on the basis of Article 1F(b) of the Convention, cannot obtain refugee protection. This results from the combined effect of paragraphs 95(1)(c) and 112(3)(c) of the IRPA.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-2", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 3–5", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "Moreover, while that person can still apply to the Minister of Citizenship and Immigration (Minister) for protection if subject to a removal order, he or she cannot obtain permanent resident status. Pursuant to paragraph 114(1)(b) of the IRPA, the Minister’s decision to allow the application for protection merely has the effect of staying the removal order. In view of these consequences on a claimant, I believe that this Court should address the certified questions.\n\nSection 98 of the IRPA and the interpretation to be given to the word “serious” in the terms “serious non-political crime” found in Article 1F(b) of the Convention carry with them an international dimension. As Lord Llyod of Berwick said in T v. Secretary of State for the Home Department, [1996] 2 All ER 865, at p. 891, “in a case concerning an international convention, it is obviously desirable that decisions in different jurisdictions should, so far possible, be kept in line with each other”. For this reason, we requested the parties provide us with additional submissions containing references to the international jurisprudence on this question.\n\nMore specifically, the parties were asked to provide references: a) as to whether the seriousness of a non-political crime within the meaning of Article 1F(b) of the Convention is determined solely by reference to the maximum sentence that can be imposed for the particular crime as provided in the domestic law of the country of refuge; or b) whether, in making the determination, the facts relating to the nature and seriousness of the acts committed may or must be taken into account. The parties were given until November 7, 2008 to complete their submissions.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-3", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "Before stating the facts, I reproduce the relevant provisions: Convention Article 1. Definition of the term “refugee” F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations. Article premier. -- Définition du terme « réfugié » F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un rime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. [Emphasis added] IRPA PART 1 - IMMIGRATION TO CANADA Division 4 - Inadmissibility Serious criminality 36.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-4", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. PART 2 - REFUGEE PROTECTION Division 1 - Refugee Protection, Convention Refugees and Persons in Need of Protection Conferral of refugee protection 95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. … Convention refugee 96.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-5", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Exclusion — Refugee Convention 98.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-6", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. … Ineligibility 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). Serious criminality (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. … Division 3 - Pre-removal Risk Assessment Protection Application for protection 112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-7", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "… Restriction (3) Refugee protection may not result from an application for protection if the person (a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality; (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or (d) is named in a certificate referred to in subsection 77(1). Consideration of application 113. Consideration of an application for protection shall be as follows: … (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. Effect of decision 114.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-8", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. PARTIE 1 - IMMIGRATION AU CANADA Section 4 - Interdictions de territoire Grande criminalité 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans. PARTIE 2 - PROTECTION DES RÉFUGIÉS Section 1 - Notions d’asile, de réfugié et de personne à protéger Asile 95.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-9", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). […] Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention – le réfugié – la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne à protéger 97.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-10", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne à protéger (2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. Exclusion par application de la Convention sur les réfugiés 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. […] Irrecevabilité 101.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-11", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) – , grande criminalité ou criminalité organisée. Grande criminalité (2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : a) une déclaration de culpabilité au Canada pour une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans et pour laquelle un emprisonnement d’au moins deux ans a été infligé; b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada. […] Section 3 - Examen des risques avant renvoi Protection Demande de protection 112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-12", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "[…] Restriction (3) L’asile ne peut être conféré au demandeur dans les cas suivants : a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée; b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; d) il est nommé au certificat visé au paragraphe 77(1). Examen de la demande 113. Il est disposé de la demande comme il suit : […] c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98; d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, (ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada. Effet de la décision 114. (1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. [Emphasis added] The facts", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-13", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 7–12", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "The facts can be summarized as follows. The appellant, Mr. Ruwan Chandima Jayasekara, is a Sri Lankan citizen of Sinahalese ethnicity. He was allegedly targeted in Sri Lanka by the Tamil Tigers. He arrived in the United States in 1998 and lived there without status until 2004.\n\nIn January 2004, he was arrested in New York State on drug charges and pled guilty to the “criminal sale of the controlled substance opium in the third degree” and to criminal possession of marijuana. In March 2004, he was convicted and sentenced to 29 days in jail and a 5 year probation period.\n\nOne month after completing his jail term, he attended an immigration hearing and was issued a voluntary departure order to leave the United States by October 2004.\n\nOn July 5, 2004, he entered Canada and claimed refugee protection. He did not apply to his probation office to obtain permission to leave the jurisdiction of the United States and a warrant for his arrest as an absconder was issued on July 27, 2004. The Board’s decision\n\nThe Board heard the appellant’s refugee claim on April 12 and September 15, 2006. As previously mentioned, it found that he was excluded from refugee protection under section 98 of the IRPA and Article 1F(b) of the Convention because there were serious reasons for considering that he had committed a serious non-political crime outside of Canada and that he had not completed his sentence as he fled the United States during his probation.\n\nMoreover, it found that, even if the appellant was not excludable under Article 1F(b) of the Convention, he did not meet the criteria for either Convention refugee status or as a person requiring protection. These findings based on credibility are not contested.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-14", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 13–16", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant sought judicial review before the Federal Court only of his exclusion under section 98 of the IRPA and Article 1F(b) of the Convention. The Federal Court decision\n\nThe judge reviewed the Board’s decision on the standard of reasonableness because, at the core of it, the question of the exclusion under section 98 of the IRPA and Article 1F(b) of the Convention was one of mixed fact and law which involved some degree of discretion: see paragraph 10 of the reasons for judgment.\n\nHe was also of the view that it was reasonable for the Board to conclude that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non-political crime outside the country. He found that conclusion to be reasonable because the offence committed by the appellant would carry a maximum sentence of life imprisonment in Canada. At paragraph 11 of the reasons for judgment he wrote: It was perfectly reasonable for the Board to use as a measurement of a “serious” crime the view which Canadian law takes of that offence, not the seriousness of the penalty imposed in the United States.\n\nWith respect to the certified questions, the judge ruled that the appellant had not completed his sentence in the United States as he voluntarily left that country with most of his five years probation unserved.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-15", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 17–18", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "Finally, addressing the appellant’s contention that Article 1F(b) of the Convention is inapplicable to persons who have served their sentence abroad before coming to Canada, the judge reviewed the decisions of our Court in Chan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1180 and Zrig v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 565. He concluded that the Board was still right to have excluded the appellant under Article 1F(b) of the Convention, even if he were deemed to have constructively served his sentence in the United States. The purpose of Article 1F(b) of the Convention\n\nThe purpose of Article 1F(b) of the Convention was considered by our Court in the Chan and Zrig decisions. Counsel for the appellant submits that Chan is still good and applicable law. He argued that Chan established a general principle that a person who has served his sentence should not be excluded under Article 1F(b) of the Convention.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-16", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 19–20", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant relies upon the following statement of Robertson J.A., at paragraph 4 of the reasons for judgment in Chan: Assuming without deciding that the appellant’s conviction qualifies as a serious non-political crime, it is clear to me that Article 1F(b) cannot be invoked in cases where a refugee claimant has been convicted of a crime and served his or her sentence outside Canada prior to his or her arrival in this country. I rest this conclusion on two grounds. First, obiter comments of Justice Bastarache in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (writing for the majority) and Justice La Forest in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, fully support this interpretation of Article 1F(b), as do the writings of academic commentators. Second, any other interpretation is in conflict with the statutory scheme set out in the Immigration Act.\n\nIn that case, our Court had to reconcile the terms of Article 1F(b) of the Convention with then subparagraphs 46.01(1)(e)(i) and 19(1)(c.1)(i) of the former Immigration Act, R.S.C. 1985, c. I-2, as amended (former Act).", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-17", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 21", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "These provisions of the former Act read: Access Criteria 46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person … (e) has been determined by an adjudicator to be (i) a person described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada, 19. (1) Inadmissible Persons – No person shall be granted admission who is a member of any of the following classes: … (c.1) persons who there are reasonable grounds to believe (i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or … except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission as the case may be; Critères de recevabilité 46.01 (1) – La revendication de statut n’est pas receivable par la section du statut si l’intéressé se trouve dans l’une ou l’autre des situations suivantes : […] (e) L’arbitre a décidé, selon le cas : (i) qu’il appartient à l’une des catégories non admissibles visées à l’alinéa 19(1)c) ou au sous-alinéa 19(1)c.1)(i) et, selon le ministre, il constitue un danger pour le public au Canada, 19.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-18", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 21–24", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) Personnes non admissibles – Les personnes suivantes appartiennent à une catégorie non admissible : […] c.1) celles dont il y a des motifs raisonnables de croire qu’elles ont, à l’étranger : (i) soit été déclarées coupables d’une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d’une loi fédérale, d’un emprisonnement maximum égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu’au moins cinq ans se sont écoulés depuis l’expiration de toute peine leur ayant été infligée pour l’infraction ou depuis la commission du fait; [Emphasis added]\n\nPursuant to section 46.01, a person who was inadmissible to Canada could not have his or her claim determined by the Refugee Division. In other words, he or she was excluded from a refugee hearing before the Refugee Division.\n\nHowever, subparagraph 19(1)(c.1)(i) created an exception to the inadmissibility to Canada of persons convicted outside of Canada for a crime that could be punishable in Canada by a maximum term of imprisonment of ten (10) years or more.\n\nAs a matter of fact, a person convicted of such crimes could still be eligible for refugee protection and have his or her claim determined by the Refugee Division if the Minister was satisfied that that person had rehabilitated himself or herself and that five years had elapsed since the expiration of the sentence imposed or since the commission of the act or omission.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-19", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 25–27", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "In order to give meaning to the rehabilitation provisions of the former Act, Robertson J.A. found in Chan that Article 1F(b) of the Convention could not be given an interpretation which would have resulted in a blanket exclusion of those who had been found guilty of serious crimes as defined in the Act. Such interpretation would have deprived a claimant of the protection offered by the exception to the inadmissibility rule. I should add, it would have also divested the Minister of his discretionary power under paragraph 19(1)(c.1) of that Act.\n\nIn my respectful view, the decision in Chan stands for the proposition that, under the existing law at the time, which, as we will see, has now been modified by the IRPA, a claimant who was convicted of a serious non-political crime and who served his sentence was not necessarily excluded from a refugee hearing or rendered ineligible to apply for the refugee protection afforded by the Convention. He or she remained entitled to have their refugee claim determined by the Refugee Division if the Minister concluded that the claimant was rehabilitated and was not a danger to the public.\n\nWhile the decision in Chan afforded some protection to a claimant and safeguarded the Minister’s discretion, it did not then, nor does it now, in my respectful view, stand for the proposition that, whatever the circumstances, a country cannot exclude an applicant who was convicted and served his sentence.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-20", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 28", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "The purpose stated in Chan is neither the only nor, as contended by the appellant, necessarily the primary purpose sought by the exclusion contained in Article 1F(b) of the Convention. This is made clear by the subsequent decision of our Court in Zrig. In this respect, our colleague Décary J. wrote at paragraphs 118 and 119 of that decision: Purposes of Article 1F of the Convention in general, and Article 1F(b) in particular [118] My reading of precedent, academic commentary and of course, though it has often been neglected, the actual wording of Article 1F of the Convention, leads me to conclude that the purpose of this section is to reconcile various objectives which I would summarize as follows: ensuring that the perpetrators of international crimes or acts contrary to certain international standards will be unable to claim the right of asylum; ensuring that the perpetrators of ordinary crimes committed for fundamentally political purposes can find refuge in a foreign country; ensuring that the right of asylum is not used by the perpetrators of serious ordinary crimes in order to escape the ordinary course of local justice; and ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. It is this fourth purpose which is really at issue in this case. [119] These purposes are complementary. The first indicates that the international community did not wish persons responsible for persecution to profit from a convention designed to protect the victims of their crimes.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-21", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 28–29", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "The second indicates that the signatories of the Convention accepted the fundamental rule of international law that the perpetrator of a political crime, even one of extreme seriousness, is entitled to elude the authorities of the State in which he committed his crime, the premise being that such a person would not be tried fairly in that State and would be persecuted. The third indicates that the signatories did not wish the right of asylum to be transformed into a guarantee of impunity for ordinary criminals whose real fear was not being persecuted, but being tried, by the countries they were seeking to escape. The fourth indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This fourth purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum. [Emphasis added]\n\nI agree with this well documented statement of our colleague Décary J.A.: see also on the existence and scope of this fourth purpose Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, at paragraphs 94-95 (High Court of Australia); Tenzin Dhayakpa v. The Minister of Immigration and Ethnic Affairs, [1995] FCA 1653 (Fed. Ct. Australia) at paragraphs 27 to 29; Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, [1998] FCA 1314 (Fed. Ct. Australia). The purposes are complementary and, in my view, there is no ranking among them.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-22", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 30–34", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "Some elements of the reasoning in Chan are still relevant under the IRPA because of the ineligibility rule applicable to refugee claimants under Part 2 of the IRPA, such as ineligibility for serious criminality: see subsections 101(1) and (2) of the IRPA.\n\nThere is, however, a notable difference between the IRPA and the former Act. Under paragraph 46.01(1)(e) and subparagraph 19(1)(c.1)(i) of the former Act, a claimant was ineligible for a refugee hearing if he was inadmissible to Canada on account of serious criminality unless, as previously stated, the Minister was satisfied that the claimant had rehabilitated himself or herself and five years had elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission (emphasis added).\n\nUnder the IRPA, the rule as to ineligibility has changed. By virtue of subsections 101(2), a claimant, who is inadmissible by reason of serious criminality, now remains eligible for a refugee hearing unless the “Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years” (emphasis added).\n\nIn other words, under the former Act, there was a rule of ineligibility for a refugee hearing if a claimant was inadmissible on account of serious criminality. That rule operated unless the exception applied. Under the IRPA the rule is reversed. A claimant remains eligible unless the exception applies.\n\nThe concept of “sentence served” remains relevant to the issue of admissibility to Canada by reason of paragraph 36(3)(c) of the IRPA which deals with rehabilitation.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-23", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 35–37", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "This brings me now to the determination of the first certified question and the role that domestic law plays or should play in the interpretation of the exclusion clause contained in Article 1F(b) of the Convention. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention\n\nCentral to the exclusion clause of Article 1F(b) of the Convention is the commission of a “serious” non-political crime. What does “serious” mean in that clause? What are the criteria for determining whether a claimant’s crime is serious within the meaning of Article 1F(b) of the Convention? What standards are applicable to that determination? International or local standards or both? Was the crime in the present instance serious enough to justify the application of the exclusion clause? These questions must now be addressed in the context of Article 1F(b) of the Convention. a) The standards applicable to the determination of the gravity of a crime\n\nThe UNHCR-issued Guidelines on International Protection (The UN Refugee Agency), at paragraph 38, suggest that the gravity of a crime be “judged against international standards, not simply by its characterization in the host State or country of origin”. This is, of course, to avoid the profound disparities which may exist between countries with respect to the same behaviour. As Branson J. wrote in Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, supra, at page 15 of his reasons for judgment, “one needs only to bring to mind regimes under which conduct such as peaceful political dissent, the possession of alcohol and the “immodest” dress of women is regarded as seriously criminal”.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-24", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 38–39", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "The UNHCR Guidelines propose, at paragraph 39, the following factors as relevant in determining the seriousness of a crime for the purpose of Article 1F(b) of the Convention: - the nature of the act; - the actual harm inflicted; - the form of procedure used to prosecute the crime; - the nature of the penalty for such a crime; and - whether most jurisdictions would consider the act in question as a serious crime. The Guidelines go on to give as examples of serious crimes the crimes of murder, rape, arson and armed robbery. They also refer to other offences which could be deemed to be serious “if they are accompanied by the use of deadly weapons, involve serious injury to a person or there is evidence of serious habitual criminal conduct and other similar factors”: ibidem, at paragraph 40. Reference here is clearly made to circumstances surrounding the commission of the crime which, the Guidelines submit, should be taken into account in assessing the seriousness of the crime.\n\nThe UNHCR Guidelines are not binding. Nor is the UN Handbook on Procedures and Criteria for Determining Refugee Status (under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees), Geneva, January 1988, although the Handbook can be relied upon by the courts for guidance: see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 713-714; Tenzin Dhayakpa, supra, at paragraph 27; Igor Ovcharuk, supra, at page 8; INS v. Aguirre-Aguirre, U.S. 1999, 1, at pages 10 and 11 (U.S. Supreme Court). I also agree that the Handbook cannot override the functions of the Court in determining the words of the Convention: see the reasons for judgment of Henry J. in S. v. Refugee Appeals Authority, [1998] 2 NZLR 291, at paragraph 20 (N.Z. C.A.).", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-25", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 40–41", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "For the purpose of determining whether a person is ineligible to have his or her refugee claim referred to the Refugee Protection Division on the basis of “serious criminality”, paragraph 101(2)(b) of the IRPA requires a conviction outside Canada for an offence which, if committed in Canada would be an offence in Canada punishable by a maximum term of at least 10 years. This is a strong indication from Parliament that Canada, as a receiving state, considers crimes for which this kind of penalty is prescribed as serious crimes. In the case of a crime committed outside Canada, paragraph 101(2)(b) makes the length of the sentence actually imposed irrelevant. This is to be contrasted with paragraph 101(2)(a) which deals with inadmissibility by reason of a conviction in Canada. In this last instance, Parliament has seen fit to require that the offence be punishable by a maximum term of imprisonment of at least 10 years and that a sentence of at least two years has been imposed (emphasis added).\n\nI agree with counsel for the respondent that, if under Article 1F(b) of the Convention the length or completion of a sentence imposed is to be considered, it should not be considered in isolation. There are many reasons why a lenient sentence may actually be imposed even for a serious crime. That sentence, however, would not diminish the seriousness of the crime committed. On the other hand, a person may be subjected in some countries to substantial prison terms for behaviour that is not considered criminal in Canada.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-26", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 42–43", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "Further, in many countries, sentencing for criminal offences takes into account factors other than the seriousness of the crime. For example, a player in a prostitution ring may, out of self-interest, assist the prosecuting authorities in the dismantling of the ring in return for a light sentence. Or an offender may seek and obtain a more lenient sentence in exchange for a guilty plea that relieves the victim of the ordeal of testifying about a traumatic sexual assault. Costly and time-consuming mega-trials involving numerous accused can be avoided in the public interest through the negotiation of guilty pleas and lighter sentences. The negotiations relating to sentences may involve undertakings of confidentiality, protection of persons and solicitor-client privileges. Access to the confidential, secured and privileged information may not be permitted, so that a look at the lenient sentence in isolation by a reviewing authority would provide a distorted picture of the seriousness of the crime of which the offender was convicted.\n\nWhile regard should be had to international standards, the perspective of the receiving state or nation cannot be ignored in determining the seriousness of the crime. After all, as previously alluded to, the protection conferred by Article 1F(b) of the Convention is given to the receiving state or nation. The UNHCR Guidelines acknowledges as much: see paragraph 36 above.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-27", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 44–45", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction: see S v. Refugee Status Appeals Authority, (N.Z. C.A.), supra; S and Others v. Secretary of State for the Home Department, [2006] EWCA Civ 1157 (Royal Courts of Justice, England); Miguel-Miguel v. Gonzales, no. 05-15900, (U.S. Ct of Appeal, 9th circuit), August 29, 2007, at pages 10856 and 10858. In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin: see Xie v. Canada, supra, at paragraph 38; INS v. Aguirre-Aguirre, supra, at page 11; T v. Home Secretary (1995), 1 WLR 545, at pages 554-555 (English C.A.); Dhayakpa v. The Minister of Immigration and Ethnic Affairs, supra, at paragraph 24.\n\nFor instance, a constraint short of the criminal law defence of duress may be a relevant mitigating factor in assessing the seriousness of the crime committed. The harm caused to the victim or society, the use of a weapon, the fact that the crime is committed by an organized criminal group, etc. would also be relevant factors to be considered.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-28", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 46–48", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "I should add for the sake of clarity that Canada, like Great Britain and the United States, has a fair number of hybrid offences, that is to say offences which, depending on the mitigating or aggravating circumstances surrounding their commission, can be prosecuted either summarily or more severely as an indictable offence. In countries where such a choice is possible, the choice of the mode of prosecution is relevant to the assessment of the seriousness of a crime if there is a substantial difference between the penalty prescribed for a summary conviction offence and that provided for an indictable offence. b) Whether the crime in the present instance is serious and justified the application of the exclusion clause\n\nIt should be recalled that the appellant was convicted in the United States for trafficking a hard drug, namely opium.\n\nIt is not disputed that trafficking in narcotics and psychotropic substances can entail both human and economic consequences for society. As the evidence reveals, drug trafficking is treated as a serious crime across the international spectrum. In their book on The Refugee in International Law, 3rd ed., Oxford University Press, 2007, at page 179, G.S. Goodwin-Gill and J. McAdam mention that the UNHCR, with a view to promoting consistent decisions “proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs traffic, and armed robbery” (emphasis added).", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-29", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 49–50", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "In accordance with the three United Nations Drug Conventions, i.e. the 1961 Single Convention on Narcotic Drugs (amended by the Protocol of 25 March 1972), 976 U.N.T.S. 105; the 1971 Convention Against Psychotropic Substances, 1019 U.N.T.S. 175; and the 1988 Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, E/Conf. 82/15, signatory nations are required to coordinate preventive and repressive action against drug trafficking, including the imposition of penal provisions as necessary. The choice of penal provisions remains at the discretion of the Member State and may exceed those provided by the Conventions if the Member States deem them desirable or necessary for the protection of public health and welfare.\n\nAs reflected by the penal provisions enacted, most signatory states define and treat drug trafficking as a serious crime. In contrast to mere possession, drug trafficking is usually punishable by a period of incarceration. In this country, the sentence imposed for a drug trafficking offence carries a maximum time of 18 months for a summary conviction and up to a maximum of life imprisonment for an indictable offence depending on the substance trafficked: see the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-30", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 51", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "In other countries, the punishment is equal to or greater than ours and can include both incarceration and the imposition of fines. The United States also provides for a range of sentences depending on the substance trafficked, whether the consequence of trafficking included serious injury or death, and whether there were prior convictions. Overall, sentences can range from a minimum of one year to a life sentence and fines can be imposed from $100,000 to $20,000,000, depending on, as per the wording of the article, whether the offender is an individual or other than an individual: see 21 U.S.C. §841. In a recent case comparable to ours where the accused pleaded guilty to selling .26 grams of rock cocaine for $20, the US Court of Appeal for the 9th circuit upheld, in August 2007, the presumption that the accused had committed a particularly serious crime. The accused had been sentenced to the time served (36 days), a fine of $200 and a five-year probation period: see Miguel-Miguel v. Gonzales, supra.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-31", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 52–53", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "Less severe, but similar punishment is legislated in England, Australia, New Zealand and France. Drug trafficking in the United Kingdom can lead to a maximum sentence of 3 to 12 months for summary conviction offences or a 400 to 2,500 pound fine or both. For indictable offences, the penalty is increased, ranging from 5 years to life imprisonment or a fine or both: see the Misuse of Drugs Act, 1971 (U.K.), 1971, c. 38, s. 4 and Schedule 4. Similarly, Australia permits a ten-year period of imprisonment or 2,000 penalty units or both: see Criminal Code Act, 1995 (Cth.), s. 302.4(1). New Zealand sets a range for indictable trafficking offences of a maximum of 8 years to life imprisonment depending on the substance and up to one year imprisonment or a fine of up to $1,000 for summary conviction offences: see Misuse of Drugs Act, 1975 (N.Z.), 1975/116, s. 6. Finally, France allows for 10 years of imprisonment and fines of 7.5 million euros when the trafficked drug is for resale as opposed to individual consumption: see the French Code Pénal, sections 222-237.\n\nIn this country, opium is classified in Schedule 1 and, according to paragraph 5(3)(a) of the Controlled Drugs and Substances Act, supra, a person who sells that substance is liable to imprisonment for life. There is no doubt that Parliament considers the trafficking of opium as a serious crime.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-32", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 54–55", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "In the United States, the behaviour of the appellant was classified a class B felony. The appellant, although a first offender, received a sentence of 29 days in jail and a five year probation period. A probation order, especially one of five years, is not necessarily a light sentence as it entails restrictions which can be severe on one’s liberty as well as conditions leading to penal consequences in case of breaches: see R. v. B. (M.), [1987] O.J. No. 726 (Ont. C.A.).\n\nIn determining whether the appellant had been convicted of a serious crime, the Board looked at: a) the gravity of the crimes (trafficking in opium and criminal possession of marijuana) under New York legislation which, even for a first offender, resulted in a jail term as well as a five year probation period; b) the sentence imposed by the New York court; c) the facts underlying the conviction, namely the nature of the substance trafficked and possessed, a traffic of opium in three parts, the quantity of drugs possessed and trafficked; d) the finding of this Court in Chan that a crime is a serious non political crime if a maximum sentence of ten years or more could have been imposed if the crime had been committed in Canada; e) the objective gravity of a crime of trafficking in opium in Canada which carries a possible penalty of life imprisonment; and f) the fact that the appellant violated his probation order by failing to report three times to his probation officer and eventually absconded.", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-36253-33", - "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 56–59", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", - "part": "Federal Court of Appeal", - "division": "", - "text": "I believe that the judge committed no error when he concluded that it was reasonable for the Board to conclude on these facts that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non political crime outside the country. c) The answer to the first certified question\n\nThe answer to the following question: Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? is no.\n\nIn view of the conclusion that I have reached on the first certified question, it is not necessary to answer the second question. Conclusion\n\nFor these reasons, I would dismiss the appeal. I am indebted to both counsel for their assistance in resolving the issues before us. “Gilles Létourneau” J.A. “I agree Karen Sharlow J.A.” “I agree J.D. Denis Pelletier J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2008-12-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" - }, - { - "id": "fca-35786-1", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 1–3", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal from a judgment of Justice Mosley (2006 FC 1385). He dismissed the appellants’ application for judicial review of the decision of a pre removal risk assessment officer, who rejected their application for protection under subsection 112(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). An application under subsection 112(1) of the IRPA is referred to as a “pre removal risk assessment application” or a “PRRA application”.\n\nThe principal issue in this appeal is the interpretation of paragraph 113(a) of the IRPA. Paragraph 113(a) deals with the circumstances in which a failed refugee claimant who makes a PRRA application may present evidence to the PRRA officer that was not before the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board.\n\nJustice Mosley summarized, at paragraphs 10 through 12 of his reasons, his conclusions as to the standard of review applicable to a decision of a PRRA officer. Neither party suggested that he erred in his statement of the applicable standard of review, or that he failed to apply the appropriate standard of review. As that issue was not debated, I accept for the purposes of this appeal that the standard of review for questions of law is correctness, for questions of fact is patent unreasonableness, and for questions of mixed fact and law is reasonableness. In my view, nothing in this appeal turns on the standard of review.", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-35786-2", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 4", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Syed Masood Raza, his wife and their two children are citizens of Pakistan and members of the Shia minority in that country. Mr. Raza suffered attacks in 1994 at the hands of Sipah-e-Sahaba Pakistan extremists because of Mr. Raza’s participation in the religious and business affairs of the Shia community. He reported the attacks to the police, to no avail. Mr. Raza left Pakistan on October 3, 1994 and his family left the following December. They lived in Texas without status until 2003, when they came to Canada. Mr. Raza and his family sought refugee protection under the IRPA on the basis that he had been attacked because of his religious faith and that adequate state protection was not available.", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-35786-3", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 5", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The provisions of IRPA describing the conferral of refugee protection are sections 95, 96 and 97, which read in relevant part as follows (provisions referring to criminality and national security, which are not in issue in this case, have been omitted): 95. (1) Refugee protection is conferred on a person when 95. (1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) […] the Minister allows an application for protection. b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection […]. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), […] . (2) Est appelée personne protégée la personne à qui l’asile est conféré […] . 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, 96.", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-35786-4", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 5", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "A qualité de réfugié au sens de la Convention—le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; […] . a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; […] . 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality […] would subject them personally 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité […] exposée : (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (ii) elle y est exposée en tout lieu de ce pays", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-35786-5", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 5–6", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (iii) la menace ou le risque ne résulte pas de sanctions légitimes—sauf celles infligées au mépris des normes internationales—et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.\n\nThe claims of Mr. Raza and his family for refugee protection were rejected by the RPD. The RPD did not doubt Mr. Raza’s account of the attacks he suffered. However, the RPD concluded that conditions in Pakistan had changed since his departure, and that adequate state protection was available as of the date of his application for refugee protection. Leave to seek judicial review of that decision was dismissed by the Federal Court on May 5, 2005.", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-35786-6", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 7–9", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Once the leave application was dismissed, there was no procedure available to Mr. Raza and his family to challenge the decision of the RPD to reject their claim for refugee protection on the basis of a finding of adequate state protection. There is no statutory right of appeal. Subsection 55(1) of the Refugee Protection Division Rules (SOR/2002-228) provides for a refugee protection claim to be reopened after it has been decided, but the Federal Court has held that this applies only if the application to reopen is based on an allegation that there was a failure to observe a principle of natural justice (see, for example, Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1153, Lakhani v. Canada (Minister of Citizenship and Immigration), 2006 FC 612).\n\nAfter the RPD rejected the claim of Mr. Raza and his family for refugee protection, they became the subjects of a removal order. Prior to their removal date, they made a PRRA application under subsection 112(1) of the IRPA, as they were entitled to do. The removal order was stayed pending the determination of the PRRA application (section 232 of the Immigration Regulations, SOR/2002-227).\n\nSubsection 112(1) reads in relevant part as follows: 112. (1) A person in Canada […] may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force […] 112. (1) La personne se trouvant au Canada […] peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet […]", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-35786-7", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 10–11", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "The purpose of section 112 of the IRPA is not disputed. It is explained as follows in the Regulatory Impact Analysis Statement, Canada Gazette, Part II, Vol. 136, Extra (June 14, 2002), at page 274: The policy basis for assessing risk prior to removal is found in Canada’s domestic and international commitments to the principle of non-refoulement. This principle holds that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment. Such commitments require that risk be reviewed prior to removal. La justification, au niveau des politiques, de l’examen des risques avant renvoi se trouve dans les engagements nationaux et internationaux du Canada en faveur du principe de nonrefoulement. En vertu de ce principe, les demandeurs ne peuvent être renvoyés du Canada dans un pays où ils risqueraient d’être persécutés, torturés, tués ou soumis à des traitements ou peines cruels ou inusités. Ces engagements exigent que les risques soient examinés avant le renvoi.\n\nAssuming there are no issues of criminality or national security, an application under subsection 112(1) is allowed if, at the time of the application, the applicant meets the definition of “Convention refugee” in section 96 of the IRPA or the definition of “person in need of protection” in section 97 of the IRPA (paragraph 113(c) of the IRPA). The result of a successful PRRA application is to confer refugee protection on the applicant (subsection 114(1) of the IRPA).", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-35786-8", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 12", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "A PRRA application by a failed refugee claimant is not an appeal or reconsideration of the decision of the RPD to reject a claim for refugee protection. Nevertheless, it may require consideration of some or all of the same factual and legal issues as a claim for refugee protection. In such cases there is an obvious risk of wasteful and potentially abusive relitigation. The IRPA mitigates that risk by limiting the evidence that may be presented to the PRRA officer. The limitation is found in paragraph 113(a) of the IRPA, which reads as follows: 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; [… ] . a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet; […] .", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-35786-9", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 13", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5.", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-35786-10", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 13–16", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).\n\nThe first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a) within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a).\n\nI do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.\n\nOne of the arguments considered by Justice Mosley in this case is whether a document that came into existence after the RPD hearing is, for that reason alone, “new evidence”. He concluded that the newness of documentary evidence cannot be tested solely by the date on which the document was created. I agree. What is important is the event or circumstance sought to be proved by the documentary evidence.", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-35786-11", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 17–19", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Counsel for Mr. Raza and his family argued that the evidence sought to be presented in support of a PRRA application cannot be rejected solely on the basis that it “addresses the same risk issue” considered by the RPD. I agree. However, a PRRA officer may properly reject such evidence if it cannot prove that the relevant facts as of the date of the PRRA application are materially different from the facts as found by the RPD.\n\nIn this case, Mr. Raza and his family submitted a number of documents in support of their PRRA application. All of the documents were created after the rejection of their claim for refugee protection. The PRRA officer concluded that the information in the documents was essentially a repetition of the same information that was before the RPD. In my view, that conclusion was reasonable. The documents are not capable of establishing that state protection in Pakistan, which had been found by the RPD to be adequate, was no longer adequate as of the date of the PRRA application. Therefore, the proposed new evidence fails at the fourth question listed above.\n\nJustice Mosley found that the PRRA officer’s assessment of the documents was reasonable and was not based on an error of law. I agree. For that reason, I would dismiss this appeal.", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-35786-12", - "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 20–21", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Justice Mosley certified the following questions: 1. Is “new evidence” for the purposes of s. 113(a) of the IRPA limited to evidence that post-dates and is “substantially different” from the evidence that was before the Refugee Protection Division (RPD)? 2. Does the standard for the reception of “new evidence” under s. 113(a) of the IRPA require the PRRA officer to accept any evidence created after the RPD determination, even where that evidence was reasonably available to the applicant or he/she could reasonably have been expected to present it at the hearing.\n\nThese questions do not lend themselves to simple yes or no answers. I would answer them by referring to the questions listed in paragraph 13 of these reasons. “K. Sharlow” J.A. “I agree A.M. Linden J.A.” “I agree C. Michael Ryer J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2007-12-06", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" - }, - { - "id": "fca-99694-1", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 1–4", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal from the judgment of Gleason J. (the judge) of the Federal Court dismissing Mr. Najafi’s application for judicial review of the decision of the Immigration Division of the Immigration and Refugee Board (the Division) that found him inadmissible pursuant to paragraphs 34(1)(b) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). In its decision, the Division found that there were reasonable grounds to believe that Mr. Najafi was or had been a member of the Kurdish Democratic Party of Iran (KDPI) and that the KDPI had engaged in or instigated the subversion by force of the Iranian government.\n\nThe judge certified the following question under subsection 74(d) of the IRPA: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nIn this appeal, Mr. Najafi also argues, as he did before the Division and the judge, that paragraph 34(1)(f) of the IRPA has to be construed and read down to avoid a violation of his freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms (the Charter)).\n\nFor the reasons that follow, I propose that this appeal be dismissed.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-2", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 5–7", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Najafi is a citizen of Iran of Kurdish ethnicity. He arrived in Canada in 1999 and made a refugee claim that was accepted. He thus has refugee status. However, he does not have permanent resident status in Canada. Indeed, on March 5, 2010, a report under subsection 44(1) of the IRPA was issued regarding Mr. Najafi. On March 2, 2011, this report was referred to the Division in order to have Mr. Najafi declared inadmissible due to his involvement with the KDPI.\n\nThe Minister of Public Safety and Emergency Preparedness (the Minister) has never alleged that Mr. Najafi was personally involved in any act of violence, including an act to subvert the government by force. The issues before the Division were whether Mr. Najafi had been a member of the KDPI and whether such organization falls within the scope of paragraphs 34(1)(f) and (b) of the IRPA.\n\nDuring the inadmissibility proceedings, Mr. Najafi, in addition to his testimony, provided evidence from a senior member of the KDPI in Canada, from a journalist well versed in the activities of the KDPI, and from two international law experts on the legality of the use of force in international law in the context of an oppressed people seeking self-determination.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-3", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 8–10", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "First, the Division concluded that there were reasonable grounds to believe that Mr. Najafi was a de facto member of the KDPI within the broad meaning of the term “member” in paragraph 34(1)(f) of the IRPA. Although this conclusion is not being challenged on appeal, I note that the Division relied on Mr. Najafi’s association with the KDPI both in Iran and subsequently in Canada. Mr. Najafi relies on this conclusion to argue that subsection 2(d) of the Charter must be considered in construing this provision. Had the Division based its findings solely on his participation in Iran, the Charter would not have applied.\n\nWith respect to the KDPI, the Division stated that there is evidence (i) that the KDPI is an international organization with many chapters in various countries including Canada, (ii) that membership in the KDPI in Canada would automatically make a person a member of the KDPI in Iran too, and (iii) that applicants for KDPI party membership in Canada must be approved by the KDPI in Kurdistan (paragraph 24 of the decision).\n\nThe Division rejected the argument that the KDPI had two rival factions or one separate political organization distinct from the military wing. The Division found that in fact the KDPI operated under a unified common structure comprised of sections that are complementary, but functionally distinct, and that the activities of its military wing may be imputed to the organization as a whole and to each member of the organization for the purpose of an inquiry under paragraph 34(1)(f) (paragraph 15 of the decision).", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-4", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 11–13", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "Second, the Division reviewed the concept of “subversion by force of any government”. It noted that the word “subversion” is not defined in the IRPA, reviewed the jurisprudence of this Court and of the Federal Court, and considered definitions from dictionaries such as Black’s Law Dictionary, 6th edition (paragraphs 27 to 31 of the decision).\n\nThe Division then expressed the view that “subversion by force of a government” may be distinguished by its specific objective from the broader concept of use of force against the state. It specifically involves using force with the goal of overthrowing the government, either in some part of its territory or in the entire country. The Division was also satisfied that the words “any government” include even a despotic regime, and that the government’s actions, however oppressive, are not relevant to the analysis (paragraph 32 of the decision).\n\nIn view of the above, the Division concluded at paragraph 32 of its decision that: While there may be other possible interpretations, I find that the jurisprudence indicates that using force with the goal of overthrowing any government amounts to subversion by force. In making this decision, the Division rejected Mr. Najafi’s argument that “subversion by force of any government” must necessarily refer to the unlawful use of force and that legitimate uses of force in international conflicts such as those set out in the affidavits of his legal experts should not fall within the definition. It found that analysis of the legitimacy or legality of the armed struggle is not called for in the context of an inadmissibility hearing – although it may be very relevant to an application for a ministerial exemption pursuant to subsection 34(2) (now 42.1(1) of the IRPA) (paragraph 33 of the decision).", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-5", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 14–15", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thirdly, the Division proceeded to determine whether the KDPI’s objective had been to overthrow the government of Iran. It found that the KDPI advocated and participated in the overthrow of the Shah of Iran and that, later on, the KDPI’s long-term objective of establishing a democratic socialist society within a federal Iran included the replacement of what the KDPI described as the “theocratic dictatorship” of the “reactionary and bloodthirsty regime of [the] Islamic Republic” with a new democratic federal system: the Federal Republic of Iran (paragraphs 34 to 36 of the decision).\n\nThe Division then reviewed the KDPI’s methods. After acknowledging that there was considerable evidence that the KDPI’s use of force had largely been in self-defence, it found that the KDPI nonetheless deliberately used armed force to try to overthrow the Iranian government and that this was part of its strategic repertoire. This was certainly true in the 1967-1968 period, during which it was engaged in an unsuccessful armed uprising against the Shah of Iran. In 1973, the KDPI “committed itself formally to armed struggle”. The Division then noted that the KDPI’s armed conflict with the Iranian government was at its height in 1982 and 1983, during which it was driven out of population centres and forced into guerrilla warfare in the mountains, although it temporarily recaptured the town of Bukan in September 1983 (paragraphs 37 to 41 of the decision).", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-6", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 16–18", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Division further noted that from the mid 1980s to early 1990s KDPI forces were in control of the countryside with support from the Kurdish population while the Iranian forces held the cities. It found that the KDPI did attack Iranian forces within areas under KDPI control prior to the KDPI mid-1990s withdrawal of its armed forces from the Iranian territory (paragraphs 41 to 42 of the decision).\n\nThe Division concluded that overall the evidence provided by both parties was sufficient to meet the low threshold of establishing reasonable grounds to believe that the KDPI has engaged in or instigated the subversion by force of a government (paragraph 43 of the decision).\n\nThe Division rejected Mr. Najafi’s argument that the KDPI had expressly given up any form of violence, stating that the KDPI still maintains a military wing that trains in war tactics. It also held that after the alleged renunciation of violence, there was some evidence of continued KDPI guerrilla attacks within Iran. Thus, even if one were to accept that there was an exception where “a violent organization has transformed itself into a legitimate political party and has expressly given up any form of violence”, this exception would not apply to the KDPI in this case (paragraphs 11 to 13 of the decision).", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-7", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 19–20", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Division rejected Mr. Najafi’s argument that paragraph 34(1)(f) should not be read to include a lawful organization in Canada that has not engaged in unlawful activities outside of Canada because this would constitute a violation of his constitutional right to freedom of association (section 2(d) of the Charter). The Division found that Mr. Najafi can continue to live in Canada and participate freely in the KDPI if he wishes, and he can apply for a ministerial exemption pursuant to subsection 34(2) of the IRPA. Thus, it held that it cannot be assumed that holding Mr. Najafi inadmissible on the basis of paragraph 34(1)(f) of the IRPA would have “any significant negative legal consequences for him, let alone any sufficient to constitute a breach of his Charter rights” (paragraphs 16 to 18 of the decision).\n\nThe judge summarizes her findings at paragraph 7 of her reasons, reported under the neutral citation 2013 FC 876 (the Reasons) as follows: For the reasons that follow, I have determined that the Division’s decision should be upheld because it correctly determined that the applicant’s Charter rights were not infringed, reasonably determined that he was or had been a member of the KDPI and reasonably held that the KDPI had engaged in “subversion by force” of the Iranian governments. Insofar as concerns the applicant’s invocation of international law, I do not believe that the Division erred in finding there was no need to resort to international law or to depart from the settled interpretation of section 34 of the IRPA. Thus, for the reasons below, this application will be dismissed. (i) Paragraph 34(1)(b) and International law", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-8", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 21–23", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Part III of her reasons, starting at paragraph 52, the judge deals with Mr. Najafi’s argument that “subversion by force of any government” (paragraph 34(1)(b) of the IRPA) cannot be construed as including the KDPI’s use of force against the Iranian government because it was legitimate to use such force under international law.\n\nAfter summarizing Mr. Najafi’s expert evidence (paragraphs 54 and 55 of the Reasons), the judge ruled that she had to determine three issues, namely: i) What standard of review is applicable? ii) Did the Division commit a reviewable error in failing to consider international law; and iii) If so, does international law mandate the interpretation Mr. Najafi advances?\n\nIn respect of the first issue, the judge acknowledged that the most recent decisions of the Supreme Court of Canada would normally mandate that deference be afforded to the Division’s interpretation of its home statute or one closely related to its function. She then considered that a long line of authority shows that determining whether the actions of an individual or an organization fall within the scope of paragraph 34(1)(b) is a question of mixed fact and law and that the two requirements (the factual and legal interpretation of the words “subversion by force of any government”) are not to be uncoupled (paragraph 59 of the Reasons). Furthermore, she notes the similarity between the question before her and the one before this Court in B010 v. Canada (Citizenship and Immigration), 2013 FCA 87 [B010] (paragraphs 58 to 60 of the Reasons).", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-9", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 24–26", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "The judge concluded from this analysis that the Division’s finding regarding the applicability of paragraph 34(1)(b) is to be reviewed on the reasonableness standard. However, the judge expressly held that the selection of the standard of review is not determinative. She found that the Division’s interpretation of paragraph 34(1)(b) is not just reasonable, it is also correct (paragraph 61 of the Reasons).\n\nTurning to the second issue under this heading – did the Division err in not considering international law – the judge found that the context shows that “Parliament intended that the balancing of the soundness of motive for the use of force be a matter for consideration by the Minister under subsection 34(2) of the IRPA and not for the Division under subsection 34(1)” (paragraph 68 of the Reasons).\n\nThe judge based this conclusion on her analysis of the wording of the paragraph in the context of the section as a whole, including the legislative history (paragraphs 64 to 67). She also found support for her interpretation of paragraph 34(1)(b) in the case law and in the fact that the presumption that the legislator intended to comply with international law cannot be used to override clear provisions of a statute. Therefore, in her view, the Division did not err in declining to consult international law to construe paragraph 34(1)(b) (paragraphs 69-73).", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-10", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 27–29", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "The judge also went further and found that even if she were wrong concerning how international law was to be handled, Mr. Najafi did not establish that international law recognizes the use of force in furtherance of self-determination in the manner suggested (paragraphs 74–79 of the Reasons). Among other things, the judge ruled that Mr. Najafi does not fall within the definition of “combatant” as he never performed a “continuous combat function”. She also found that in light of section 25 (the ministerial exemption based on humanitarian and compassionate considerations) and subsection 34(2) of the IRPA, Canada could not be found in contravention of its international obligations simply because Mr. Najafi was found inadmissible under subsection 34(1) of the IRPA (paragraphs 74 to 79 of the Reasons). (ii) Section 2(d) of the Charter\n\nIn paragraphs 23 to 51 of her reasons, the judge analysed Mr. Najafi’s submission that the Division’s interpretation violates right to freedom of association under section 2(d) of the Charter and, thus, offends the presumption that Parliament intended the IRPA to operate in accordance with the Charter.\n\nThe Division construed paragraph 34(1)(f) without reference to this presumption of compliance with the Charter because, in its view, the matter did not engage a constitutional right.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-11", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 30–31", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "On this issue, the judge applied the standard of correctness, and rejected the Minister’s argument that the reasonableness standard set out by the Supreme Court of Canada in Doré v. Le Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 applied [Doré]. In her view, the deferential standard of reasonableness does not apply when the Division is called upon to make substantive findings on Charter rights, which is what happened here. The judge further noted that the role of the Division is entirely different from that of the Minister under subsection 34(2). In her view, it is only in the latter case – when the Minister is exercising his statutory discretion – that the decision will be reviewable under the reasonableness standard for compliance with the Charter in accordance with Doré (paragraphs 32 and 36 of her Reasons).\n\nIn respect of the merits of Mr. Najafi’s argument, the judge relied on Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, and Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, to reject the Minister’s argument that section 2(d) was not engaged at all because this matter only involved the removal of legislated benefits (see paragraph 11 of the Reasons, in which the judge describes the impact of the Division’s decision on Mr. Najafi).", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-12", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 32", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "The judge agreed with the Minister that the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh] offers much guidance in respect of Mr. Najafi’s submissions in this case. She first noted that in Suresh, the Supreme Court of Canada held that freedom of association does not extend to protect the act of joining or belonging to an organization that engages in violence. In her view, the Supreme Court of Canada also gave short shrift to Mr. Suresh’s argument that all his activities in Canada were perfectly legal. Finally, she relied on the following passage of Suresh, which dealt with section 19 (the predecessor to section 34): We believe that it was not the intention of Parliament to include in the s. 19 class of suspect persons those who innocently contribute to or become members of terrorist organizations. This is supported by the provision found at the end of s. 19, which exempts from the s. 19 classes “persons who have satisfied the Minister that their admission would not be detrimental to the national interest”. Section 19 must therefore be read as permitting a refugee to establish that his or her continued residence in Canada will not be detrimental to Canada, notwithstanding proof that the person is associated with or is a member of a terrorist organization. This permits a refugee to establish that the alleged association with the terrorist group was innocent. In such case, the Minister, exercising her discretion constitutionally, would find that the refugee does not fall within the targeted s. 19 class of persons eligible for deportation on national security grounds.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-13", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 33–34", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "The judge then reviewed the most relevant Federal Court decisions since Suresh. Having acknowledged Mr. Najafi’s argument that these cases, as well as Suresh, are distinguishable on their facts, the judge nevertheless found that all of these cases support the principle that section 2(d) of the Charter does not protect membership in organizations that use violence. All agree that the KDPI engaged in violence many years as part of its campaign to overthrow two different regimes in Iran.\n\nHaving satisfied herself that there would be no violation of Mr. Najafi’s constitutional rights, the judge notes that it was unnecessary to go on to discuss the rationale offered by the Division.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-14", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 35", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "At the relevant time, the sections of the IRPA of interest read as follows: 3. (1) The objectives of this Act with respect to immigration are 3. (1) En matière d’immigration, la présente loi a pour objet : (h) to protect public health and safety and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (3) This Act is to be construed and applied in a manner that (3) L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet : (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; d) d’assurer que les décisions prises en vertu de la présente loi sont conformes à la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d’une part, d’égalité et de protection contre la discrimination et, d’autre part, d’égalité du français et de l’anglais à titre de langues officielles du Canada; (f) complies with international human rights instruments to which Canada is signatory. f) de se conformer aux instruments internationaux portant sur les droits de l’homme dont le Canada est signataire. 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-15", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 35", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; a) être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; (b) engaging in or instigating the subversion by force of any government; b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; (c) engaging in terrorism; c) se livrer au terrorisme; (d) being a danger to the security of Canada; d) constituer un danger pour la sécurité du Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada; (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c). (2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. [Repealed, 2013, c. 16, s. 13] (as mentioned earlier, section 34(2) was repealed and a new version enacted in subsection 42.1(1) of the IRPA in June 2013).", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-16", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 35–39", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "(2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national. [Abrogé, 2013, ch. 16, art. 13] (Tel que déjà mentionné, le paragraphe 34(2) a été abrogé et une nouvelle version adoptée au paragraphe 42.1(1) de la LIPR en juin 2013).\n\nThe judge certified the question set out in paragraph 2 above. Mr. Najafi states in the conclusion of his memorandum (at paragraph 116) that this question should be answered in the affirmative. However, in his memorandum (see paragraphs 2 to 5, 54 and 92 to 114) and, at the hearing before us, he never addressed the question as formulated by the judge.\n\nMr. Najafi reformulates the substantive questions to be reviewed on appeal as follows: Did the Court err in its assessment of the Division’s failure to apply international law principles to its interpretation of “subversion by force” in section 34(1)(b) of the IRPA? Did the Court err in its assessment of the Appellant’s arguments on subversion by force of any government?\n\nAlso, Mr. Najafi raises the following question in his memorandum: Did the Applications judge err in law by finding that the Tribunal decision did not breach the Appellant’s section 2(d) right to freedom of association under the Charter? However, as I explain in paragraphs 99 and 100 below, my focus will be on the interpretation of paragraph 34(1)(f) of the IRPA.\n\nMr. Najafi does not challenge any of the Division’s factual findings. Indeed, Mr. Najafi relies on the Division’s finding that he was a member of the KDPI to support his submission on the issues referred to above, particularly his argument based on section 2(d) of the Charter.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-17", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 40–42", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is trite law that the threshold for certifying a question is: is there “a serious question of general importance which would be dispositive of an appeal”, (Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89 at paragraph 11).\n\nIt is worth reproducing again the question certified by the judge: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nAt paragraph 90 of the Reasons, the judge states very clearly that the question she was willing to certify concerns the interplay of the right alleged to exist under international law and the interpretation to be afforded to paragraph 34(1)(b) of the IRPA. However, if one takes the certified question literally, it is evident that international law does not require any exclusion, for it normally has no direct application in the domestic law of Canada. Moreover, this would not constitute a serious question, given that the role of international law in the interpretation of statutes i.e., the interplay between the two) has been discussed in several decisions of the Supreme Court of Canada and of this Court, including decisions dealing specifically with the IRPA. The established principles are of general application. Thus, they do apply to the interpretation of paragraph 34(1)(b) of the IRPA.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-18", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 43–47", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "These principles are summarized in Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), chapter 20 (“Construction of Statutes, 2008”). As noted by the author at page 537, international law is generally used as an aid in interpreting domestic legislation. Both parties agree that the presumption that the legislator intended to comply with Canada’s international law obligations is rebuttable.\n\nThis may well explain why, as mentioned earlier, Mr. Najafi reformulated the questions to be answered in respect of paragraph 34(1)(b) (see paragraph 37 above).\n\nThat said, the judge’s intent becomes clear when one considers her comments in context - both the Division and the judge concluded that the presumption referred to above was rebutted without the need to consider and assess the content of international law because of the clear and unambiguous wording of paragraph 34(1)(b).\n\nFrom this, I understand that the question to be answered by this Court is: Can paragraph 34(1)(b) of the IRPA be interpreted to exclude from its ambit the alleged right to use force in an attempt to subvert a certain type of government in furtherance of an oppressed people’s claimed right to self-determination assuming that such right is recognized under Protocol I of the Geneva Conventions of 1949?\n\nIn this case, the only relevant international human rights instrument to which Canada is a signatory, within the meaning of paragraph 3(3)(f) of the IRPA, is the Protocol Additional to the Geneva Conventions of 12 August, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, ratified by Canada in 1990 (“Protocol I”).", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-19", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 48–50", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is well known that the Geneva Conventions to which Protocol I relates and Protocol I itself are intended to protect the civilian population during an armed conflict as defined therein as well as the rights and obligations of “combatants” within the meaning of Protocol I and the Geneva Conventions. Thus, these instruments generally deal with what is often referred to in international law as jus in bello (conduct of war) as opposed to jus ad bellum (the right to wage war).\n\nThe international law issue that is relevant in this appeal is not whether international law recognizes the right of oppressed peoples to self-determination. That concept is not disputed. It was considered in Reference re Secession of Quebec, [1998] 2 S.C.R. 217.\n\nRather, the focus is on whether force can be used to achieve external self-determination against colonial domination, or alien occupation and racist regimes. As acknowledged during the hearing, Mr. Najafi’s experts do not rely on an alleged customary rule of international law in that respect. In fact, in his affidavit, René Provost, at paragraph 34, clearly states that: 34. The manner by which a people can arrive at and express a choice under its right to external self-determination is not clearly stipulated by international law.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-20", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 51–53", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Najafi’s position appears to be that in this very narrow set of circumstances, the legality of an oppressed people’s use of force to exercise the right to self-determination is positively affirmed in binding treaties. Mr. Najafi’s experts point only to Protocol I in support of this assertion (see for example René Provost’s affidavit at paragraph 41). The argument is that the use of force (i.e., violence) by the KPDI is therefore legitimate, and as such, cannot fall within the ambit of “subversion by force of any government” within the meaning of paragraph 34(1)(b).\n\nI do not understand Mr. Najafi to say that Protocol I or the Geneva Conventions contain any provision dealing specifically with the right of combatants to be granted entry to the signatories’ territories. Neither Protocol I nor the Geneva Conventions requires the signatories to grant any type of immigration status to these combatants or anybody else in their countries. As a matter of fact, there is no such provision.\n\nHence, nobody actually argues that by setting out an inadmissibility provision such as paragraph 34(1)(b) in the IRPA, Canada would be in violation of Protocol I or the Geneva Conventions.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-21", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 54–56", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is in contrast to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) which expressly deals with the grant of a specific status – refugee status. As mentioned, Mr. Najafi still has refugee status, despite the fact that he was found to be inadmissible. It is worth reiterating that inadmissibility should not be confused with removal; these are two distinct concepts. It is not disputed that Mr. Najafi cannot be removed without additional substantive steps being taken in accordance with the provisions in the IRPA meant to ensure protection against “refoulement” as set out in the Refugee Convention.\n\nIn this appeal, this Court’s role is to assess whether the judge chose the appropriate standard of review for each of the questions before her and whether she applied them properly (Agraira v. Canada (Public Safety and Emergency Preparedness, 2013 SCC 36 at paragraphs 45 to 47 [Agraira]).\n\nTurning now to the standard chosen by the judge, I agree with her analysis that there is no basis, in the present context, for ousting the presumption that deference should be afforded to the Division’s interpretation of its home statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paragraph 34, Agraira at paragraph 50, McLean v. British Columbia (Securities Commission), 2013 SCC 67 at paragraphs 20 to 21, 33). This is especially so when one considers that the issue here is not whether the Division improperly interpreted an international instrument or a rule of customary international law. Rather, it is whether it erred in concluding that the legitimacy of the use of force is not an issue to be considered because of the clear and unambiguous language of paragraph 34(1)(b) of the IRPA.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-22", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 57–60", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "This means that to determine if the judge applied the standard appropriately, I must assess whether on the appropriate contextual and purposive analysis of paragraph 34(1)(b), the interpretation adopted by the Division is within the range of possible, acceptable outcomes.\n\nBefore embarking on my analysis of the Division’s interpretation of paragraph 34(1)(b), I will deal briefly with two arguments put forth by Mr. Najafi.\n\nFirst, at the hearing, Mr. Najafi submitted that, as a matter of principle, neither the Division nor the judge could conclude that the presumption of compliance was ousted before examining his expert evidence on the legitimacy of the KDPI’s use of force. Second, he argued that again, as a matter of principle, to oust the presumption referred to above, the legislator must expressly state that its international obligations should be disregarded (memorandum of fact and law, paragraph 93).\n\nWith respect to the first question, it is clear that like any decision-maker tasked with statutory interpretation, the Division must apply the Driedger modern approach to statutory interpretation (Construction of Statutes, 2nd Edition, 1983 at page 87): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-23", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 61–62", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "International law may be an important part of the legal context, but it is only one of many factors and presumptions that are considered in applying this modern approach. In my view, relevant international law, like other relevant elements of the legal context, should ideally be taken into account before concluding whether or not a text is clear or ambiguous. I note that this is also the view expressed in Construction of Statutes, 2008 at page 547 but as mentioned by the author, many courts still consider ambiguity a prerequisite.\n\nThat said, the modern approach is contextual. There is therefore no single way to apply it. Indeed, there may be cases where the other factors of the relevant context are so strongly in favour of a particular interpretation that international law could only have little to no impact. In such cases, a decision-maker may not be required to go through the exercise of assessing the evidence before it, particularly when what is argued is not really a direct violation of an international instrument to which Canada is a signatory, or does not involve a particularly well established rule of customary international law.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-24", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 63–64", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "Moreover, recently, the Supreme Court of Canada in Németh v. Canda (Justice), 2010 SCC 56, [2010] 3 S.C. R. 281 [Németh], made the point that section 115 of the IRPA, read in the context of the statute as a whole, was clear, before it reviewed the extent of Canada’s obligations under the Refugee Convention. Thereafter, having reviewed the Refugee Convention and concluded that it provided for more than what was reflected by the meaning it earlier ascribed to section 115, the Court simply said that the clear meaning of the section must be given effect as the presumption of compliance with international law is rebuttable (paragraphs 31, 34 and 35).\n\nTurning to Mr. Najafi’s second argument, I cannot agree that the legislator must expressly state in the provision at issue that its international obligations should be overcome. If it were so, the Supreme Court of Canada could not have reached the conclusion that it did in Németh that section 115 of the IRPA does not address removal by extradition when it was acknowledged that the ordinary meaning of the words used in the section, “removed from Canada”, could include extradition as a form of removal. Thus, the matter is not one of principle. Rather, it is simply a question of properly applying the contextual approach, taking into consideration the words of paragraph 34(1)(b) (in French and English) and reading them in their entire context harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. In assessing the reasonableness of the Division’s interpretation, I will now proceed in this way.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-25", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 65–67", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "As noted by the Division, the word “subversion” is not defined in the Act, and there is no universally adopted definition of the term. The Black’s Law Dictionary’s definition to which the Division refers at paragraph 27 (particularly, the words “the act or process of overthrowing … the government”) is very much in line with the ordinary meaning of the French text («actes visant au renversement d’un gouvernement »). Although in certain contexts, the word “subversion” may well be understood to refer to illicit acts or acts done for an improper purpose, the words used in the French text do not convey any such connotation. I am satisfied that the shared meaning of the two texts does not ordinarily include any reference to the legality or legitimacy of such acts.\n\nI note that the word “subversion” is used only in the English version of paragraph 34(1)(b), while it is used in both the English and French versions of paragraph 34(1)(a). This may or may not signal a different meaning, but it is not my purpose to properly construe paragraph 34(1)(a) in this appeal. I will only note that in Qu v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 71, rev’d in 2001 FCA 399, the application judge was dealing with a predecessor of paragraph 34(1)(a), and this Court never had to deal with the meaning of “subversion” on appeal.\n\nIn the provision at issue here, the word “subversion” must be read in the context of the expression “subversion by force of any government” (in French: “actes visant au renversement d’un gouvernement par la force”), whereas in paragraph 34(1)(a), it is used in reference to “an act of subversion against a democratic government”.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-26", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 68–71", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "While Mr. Najafi has attempted to frame the debate around the interpretation in terms of the words “subversion by force” in paragraph 34(1)(b), and the legitimacy of the use of the force in certain contexts mentioned above under international law, it is apparent from the expert evidence he relies on that a key question is the legitimacy of the government against which such use of force is directed.\n\nThe notion of an oppressed people’s right of self-determination to use force on which he relies, is directly linked to the “illegitimacy” of the government being opposed because of colonial domination or alien occupation and racism.\n\nThis is why the judge put as much emphasis as she did on the immediate context of paragraph 34(1)(b). The interpretative question raised by these facts is whether the word “government” is limited to “democratically elected government” or some other formula designating a government whose legitimacy is not in issue, or whether it applies to any government, even it is oppressive and racist. When one considers the words of paragraph 34(1)(b), (“any government”), they are clear and unambiguous. The words “subversion by force of any government” do not on their face, imply a qualification of any kind with respect to the government in question.\n\nAlthough the IRPA has many objectives listed in section 3(1), Parliament indicated an intent to prioritize security (paragraph 3(1)h)) when it enacted paragraph 34(1)(b). Indeed, this paragraph provides specifically that a person is inadmissible on security grounds. Thus, the focus of the provision under review is on the right of the government to control its frontier and to deny entry to persons who may be a threat to its security.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-27", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 72–73", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "Turning now to the legislative evolution of this specific ground of inadmissibility, the first such provision was included in the Immigration Act, S.C. 1919, c. 25, (paragraph 3(6)(n)), referred to “persons who believed in or advocated the overthrow by force or violence of the Government of Canada or of constituted law and authority, or who disbelieved in or are opposed to organized government”, (in French: «les personnes qui croient au renversement ou qui préconisent le renversement, par la force ou la violence du gouvernement du Canada ou de la loi ou de l’autorité constituée, ou qui ne croient pas à un gouvernement organisé et s’y opposent…»).\n\nIt was in 1952 that the word “subversion” was first used in the Immigration Act, S.C. 1952, c. 42. Paragraph 5(m) included “persons who have engaged in or advocated or … are likely to engage in or advocate subversion by force or other means of democratic government…” (the French text however, still referred to « le renversement, par la force ou autrement, du régime, des institutions ou des méthodes démocratiques… ». A new paragraph, 5(n), was also included to prohibit the entry of “persons … likely to engage in espionage, sabotage or any subversive activity directed against Canada or detrimental to the security of Canada” (in French: « les personnes qui … sont susceptibles de se livrer à l’espionnage, au sabotage ou à tout autre activité subversive dirigée contre le Canada ou préjudiciable à sa sécurité »). These provisions were carried forward in the 1970 Revised Statutes of Canada.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-28", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 74–77", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "The 1976-77 amendments to the Immigration Act (S.C. 1976-77, c. 52) moved the relevant prohibited class provisions to section 19, dealing with inadmissible classes. Paragraph 19(1)(f) still refers to “subversion by force of any government”, while the French text refers to « renversement d’un gouvernement par la force ». The words “espionage, sabotage or any subversive activity” were changed and the class was moved to paragraph 19(e), which applied to acts of espionage or subversion against democratic governments (in French: « des actes d’espionage ou de subversion contre des institutions démocratiques »). In 1992 (S.C. 1992, c. 49) the provisions were all moved to paragraph 19(1)(e), with no changes to the words referred to above.\n\nWith the adoption of the new Immigration Refugee Protection Act (IRPA, S.C. 2001 c. 27), the inadmissibility classes based on security grounds were moved to section 34, which is the version of the provisions on which the Division relied (see paragraph 34 above).\n\nI note that in the various incarnations of the prohibited or inadmissible classes, there were many other changes, but they are not relevant to the present issue.\n\nIt is also worth mentioning that as of 1927 (1927 Revised Statutes of Canada), the various iterations of the relevant provisions included the possibility of obtaining a ministerial exemption. The provision regarding the ministerial exemption only expressly refers to the need to ensure that such exemption is not contrary to public interest as of 1952 (S.C. 1952, c. 42, paragraph 9(c)). “[C]ontrary to public interest” became “detrimental to the national interest” in 1992 (S.C. 1992, c. 49, paragraph 19(1)(f) in fine).", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-29", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 78–81", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "There is little material of interest in the legislative history of paragraph 34(1)(b).This source is to be given less weight in any event. That said, the judge could refer to the material she describes at paragraph 67 of the Reasons, as it simply confirms what one gathers from the legislative evolution – that Parliament intended the expression “subversion by force of any government” in paragraph 34(1)(b) to have a broad application.\n\nThe comments made and the ultimate rejection of a motion to replace the words “of any government” with “democratically elected government” in paragraph 34(1)(b) before the Standing Committee on Citizenship and Immigration and the comments made in the House of Commons during the debate at the third reading, confirm that Parliament was very much alive to arguments like those advanced by Mr. Najafi when it adopted the provision.\n\nObviously, when I state that Parliament intended for the provision to be applied broadly, I am referring to the inadmissibility stage, for, as noted by the Supreme Court of Canada in Suresh, albeit in a different context, the legislator always intended that the Minister have the ability to exempt any foreign national caught by this broad language, after considering the objectives set out in subsection 34(2). This is done by way of an application. (As discussed above, subsection 34(2) is now subsection 42.1(1). Per subsection 42.1(2), it can now also be granted on the Minister’s own initiative).\n\nThis mechanism can be used to protect innocent members of an organization but also members of organizations whose admission to Canada would not be detrimental or contrary to national interest because of the organization’s activities in Canada and the legitimacy of the use of force to subvert a government abroad.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-30", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 82–85", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is obvious that in the latter case in particular, the resolution of international law issues may be complex. This supports the argument that the Minister is better equipped to deal with such issues in the context of an application for ministerial exemption. An example of such reasoning is provided by the Geneva Conventions Act, R.S.C., 1985, c. G-3, section 9, which allows the Minister of Foreign Affairs to issue a certificate stating that a state of war or of international or non-international armed conflict existed between states or within a state.\n\nAt this stage of my analysis, I find that the language of paragraph 34(1)(b) is clear.\n\nAs in Németh, I will now consider the international law principle put forth by Mr. Najafi in support of his view that paragraph 34(1)(b) should be construed as follows: Subversion by force means using force to overthrow a government but does not include force used by lawful combatants protected by Protocol I.\n\nIn Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 [Febles], at paragraph 12, the Supreme Court of Canada reiterated that international conventions must be construed in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties, Can. T. S. 1980 No. 37, which are similar to our own general principles of statutory interpretation.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-31", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 86–87", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "The evidence of Mr. Najafi’s experts in this respect appears to be somewhat incomplete. For example, they do not explain how they construed the following paragraphs of the Preamble to Protocol I and what effect they gave to its Article 4. Preamble: Expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations, Reaffirming further that the provisions of the Geneva Conventions of 12 August1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict Article 4: The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question.\n\nI also note that the view of these experts is at odds with the view expressed by Heather Wilson in her book entitled: International Law and the Use of Force by National Liberation Movements (Book of Authorities, Volume 4, Tab 52). In her conclusions at page 135, she states that to contend unequivocally that Protocol I reflects a change in international law giving international liberation movements the authority to use force legitimately would be an overstatement.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-32", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 88–91", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "That said, as the Division did not comment on this evidence, I am prepared to assume, without deciding, that the legal effect of Protocol I is as stated in the affidavits of Mr. Najafi’s experts. This will ensure that I complete my review of the overall legal context to Mr. Najafi’s greatest advantage.\n\nEven if I adopt this approach, I cannot conclude from the overall legal context that paragraph 34(1)(b) should be construed as encompassing only the use of force that is not legitimate or lawful pursuant to international law.\n\nLike the Division, I find that legality or legitimacy may well be an issue that the Minister can consider under subsection 34(2) of the IRPA, but it is not one that is relevant to the application of paragraph 34(1)(b). Thus, the Division’s interpretation is clearly reasonable. I would answer the certified question, as formulated by the judge or reformulated at paragraph 46, in the negative.\n\nIn reaching this conclusion, I considered Mr. Najafi’s argument that the Division’s interpretation might capture a member of the Canadian Armed Forces within the ambit of paragraph 34(1)(b) of the IRPA. This hypothetical was meant to illustrate the “absurdity” of the Division’s interpretation. In my experience, one can usually concoct a dubious example designed to show that a particular provision is overbroad and cannot have been intended. However, courts must consider that the Act will be administered in a reasonable way. It strains credulity to suppose that an inadmissibility report would be issued in respect of a member of the Canadian Armed Forces based on his or her actions as a Canadian soldier.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-33", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 92–96", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "Prior to the hearing, the parties debated as to whether or not Mr. Najafi was required to serve a notice of constitutional question pursuant to section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, in order to raise his argument based on section 2(d) of the Charter.\n\nDespite the fact that he believes that it was not necessary to send such a notice, Mr. Najafi did so in an abundance of caution. However, both parties asked the Court to clarify the issue.\n\nIn a letter to the Court dated March 31, 2014, Mr. Najafi’s counsel made it absolutely clear that his position had been consistent from the outset, and that what Mr. Najafi claims is that “the provision must be interpreted so as to not infringe the Appellant’s right to associate protected by subsection 2(d) of the Charter. This requires the Court to exclude from the scope of subsection 34(1) memberships in organizations that are legal in Canada and that do not support illegal activities committed outside of Canada”. Mr. Najafi’s counsel stated that he was relying on the presumption of compliance with constitutional law, which he says is sufficient to enable the Division and this Court to read down paragraph 34(1)(f) so as to exclude organizations such as the KDPI.\n\nAgain, at the hearing and at the request of the panel, Mr. Najafi made it abundantly clear that he had chosen not to argue that paragraph 34(1)(f) is invalid, inapplicable or inoperable on constitutional grounds and that therefore, section 57 of the Federal Courts Act, should not apply.\n\nI agree. In such a case, no notice of constitutional question is required.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-34", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 97–100", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "That said, it is important to note that although reading down can be used as an interpretive technique or as a constitutional remedy, the distinction between the two is important in the context of Charter cases. When one relies on the presumption of compliance with the Charter to narrow the interpretation of a provision, the issue of whether that language, without the exclusion, might be justifiable under section 1 does not arise. However, when reading down is used as a remedy in the context of a constitutional challenge to the validity of a provision, its validity is first assessed and the need to read down words does not arise unless and until any possible defence based on section 1 has been tried and failed (Construction of Statutes, 2008 at pages 465 to 466).\n\nThe judge never had to determine the standard of review applicable to the proper interpretation of the word “organization” in paragraph 34(1)(f) as she never got to that question, having concluded that the matter did not involve a violation of any Charter right.\n\nWith the benefit of Mr. Najafi’s clarifications as to his arguments, (see paragraphs 94 and 95 above), there is no need to deal with the judge’s finding that the matter did not involve Charter violation, if in any event, paragraph 34(1)(f) of the IRPA cannot be read down so as to exclude organizations such as the KDPI, simply as a matter of interpretation, rather than as a remedy.\n\nI will thus first determine whether, using the Driedger modern approach to statutory interpretation (and paragraph 3(3)(d) of the IRPA), the Division could reasonably construe the word “organization” used in paragraph 34(1)(f) as excluding the KDPI in the absence of a constitutional challenge to the validity of this provision.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-35", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 101–105", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Division construed paragraph 34(1)(f) in accordance with a long line of jurisprudence, including this Court’s decision in Gebreab v. Canada (Public Safety and Emergency Preparedness), 2010 FCA 274, that no temporal connection is required between the membership and the acts referred to in paragraphs 34(1)(a), (b) and (c) of the IRPA. It also construed it as applicable to activities carried out by the organization outside of Canada even if its activities in Canada were legal.\n\nMr. Najafi does not challenge that this is a reasonable interpretation when applied to an organization to which section 2(d) of the Charter would not apply. However, he argues that this is not so if membership in an organization protected by the Charter is involved. He also adds that subversion by force by any organization would have to be excluded, even when it is not so excluded, where the person has himself or herself engaged in such acts under paragraph 34(1)(b).\n\nAt the hearing, Mr. Najafi’s counsel proposed that the word “organization” should simply be construed as follows: An organization other than an organization operating in Canada whose activities are lawful in Canada.\n\nIn my view, this is too wide. It would offend the holding of the Supreme Court of Canada in Suresh.\n\nIn Suresh, it was argued that the organization at issue never engaged in any unlawful activities in Canada. Still, the Supreme Court of Canada found that section 2(d) does not protect the right to associate with an organization which engages in violence or terrorism abroad while the person is a member.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-36", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 106", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "Turning now to the interpretation of paragraph 34(1)(f), I find it relevant that in Suresh, the Supreme Court of Canada noted that the inadmissibility provision (in that case, section 19 of the Immigration Act, R.S.C. 1985, c. I-2, dealing with membership in an organization engaged in terrorism) must be read with the section providing for a ministerial exemption (the predecessor of subsection 34(2) of the IRPA), as it evidences the legislator’s intention to allow for a balancing of Charter values with other Canadian fundamental values, such as national interest, national security and the protection of the safety of the Canadian society (Suresh, at paragraphs 109 to 110). This is especially so since Agraira and Doré made it abundantly clear that the Minister’s decision in respect of an exemption under subsection 34(2) must involve such a balancing of Charter rights and values with the important objectives set out in that subsection.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-37", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 107–109", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "Having considered the words of paragraph 34(1)(f) read in their entire context, which includes subsection 34(2), in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the provision, and the Act, as well as considering the intention of Parliament to comply with the Charter, I conclude that the Division could not reasonably construe the word “organization” as excluding an organization operating in Canada, whose activities are lawful in Canada and which did not engage abroad in any illicit activities of the kind set out in paragraphs 34(1)(b) while the person was a member. To do so would involve rewriting the provision to such an extent that it cannot be done in the absence of a constitutional challenge. In Febles, at paragraph 67, the Supreme Court of Canada made it clear that “where Parliament’s intent for a statutory interpretation is clear and there is no ambiguity, the Charter cannot be used as an interpretative tool to give the legislation a meaning which Parliament did not intend”.\n\nGiven that paragraph 34(1)(f) of the IRPA has a wider meaning than what Mr. Najafi contends, if Mr. Najafi considered this meaning to violate section 2(d) of the Charter, he should have called for a declaration that this paragraph violates section 2(d) and, thus, is invalid. Had he done so and had he succeeded in establishing a section 2(d) violation, flexible remedies might have been available. But this is not the case before us.\n\nIn view of the foregoing, I propose to dismiss this appeal and to answer the certified question, as formulated by the judge or as reformulated in paragraph 46 above, in the negative. “Johanne Gauthier” J.A. “I agree J.D. Denis Pelletier J.A.” “I agree D.J. Near J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-108889-1", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 1–5", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Immigration Division of the Immigration and Refugee Board of Canada found the appellant to be inadmissible under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). The Immigration Division found that the appellant was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism. The Immigration Division reasoned that:\n\nA judge of the Federal Court dismissed an application for judicial review of the decision of the Immigration Division (2014 FC 384) that the appellant was inadmissible under paragraph 34(1)(f) of the Act. The Judge certified the following question: Does Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, change the existing legal test for assessing membership in terrorist organizations, for the purposes of assessing inadmissibility under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27?\n\nThis is an appeal from the decision of the Federal Court.\n\nIn my view, the issues to be resolved on this appeal are:\n\nThe questions before this Court are: did the Federal Court select the appropriate standard of review and apply it correctly? To answer these questions this Court must “step into the shoes” of the Federal Court and focus on the administrative decision at issue (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45 and 46).", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-108889-2", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 6–10", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Federal Court did not expressly consider the standard of review. It framed the issue before it to be whether the decision of the Immigration Division was reasonable with respect to whether the appellant was a member of an organization that there are reasonable grounds to believe engaged in terrorism. The Federal Court noted that the outcome would turn on whether it was reasonable for the Immigration Division to find that membership in the TNA, a political party, was tantamount to membership in the LTTE (reasons, at paragraph 3).\n\nThe parties disagree about the standard of review to be applied to the Immigration Division’s interpretation of “member”.\n\nThe appellant argues that the definition of “member” is a legal question of general importance outside of the expertise of the Immigration Division. The word “member” therefore must be interpreted correctly. The appellant also relies upon the decision of this Court in Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2014 FCA 113, 459 N.R. 367.\n\nThe respondent submits that this Court has previously applied the reasonableness standard to the Immigration Division’s interpretation of member: Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487.\n\nIn my view, in this case nothing turns on the standard of review. On the basis of the required textual, contextual and purposive analysis conducted below, there is only a single reasonable interpretation of the word “member” (McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at paragraph 38; Canada (Minister of Public Safety and Emergency Preparedness v. Huang, 2014 FCA 228, 464 N.R. 112, at paragraph 39).", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-108889-3", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 11–15", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "That said, the substance of the decision of the Immigration Division is to be reviewed on the standard of reasonableness.\n\nThe appellant submits that the approach of the Supreme Court to complicity in Ezokola reflects broader concerns and articulates principles of interpretation of wider application. The appellant asserts that the Supreme Court’s concern in Ezokola about excluding those who are guilty of no wrongdoing should also guide the interpretation of “membership” under paragraph 34(1)(f) of the Act. It follows, the appellant argues, that membership should not be extended to those who are not involved in terrorist activities or who are loosely linked to a terrorist organization or who are compelled to join a terrorist organization. The appellant further argues that in keeping with the parameters of what the Supreme Court found in Ezokola to be blameworthy conduct, the principled nexus must be a significant contribution to the wrongful actions of the group by a true member who joined without coercion or compulsion.\n\nI disagree that the decision of the Supreme Court in Ezokola requires modification of the legal test for membership in a terrorist organization. I reach this conclusion for the following reasons.\n\nI begin by discussing the scheme of the Act and the nature of the issue before the Supreme Court in Ezokola.\n\nArticle 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (Refugee Convention) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Article 1F(a) is set out in the appendix to these reasons, together with all sections of the Act cited in these reasons.", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-108889-4", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 16–19", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "Article 1F(a) is incorporated into Canadian law by section 98 of the Act.\n\nAs a matter of law, criminal liability is not confined to the direct perpetrators of a crime. As the Supreme Court noted in Ezokola, a murder conviction can attach equally to one who pulls the trigger as well as to one who provides the gun (Ezokola, at paragraph 1).\n\nAt issue in Ezokola was the line between mere association and culpable complicity (Ezokola, at paragraph 4). The Court found that complicity arises by contribution; Article 1F(a) requires serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose (Ezokola, at paragraph 8).\n\nParagraph 35(1)(a) of the Act is the domestic inadmissibility provision that parallels Article 1F(a). In material part, paragraph 35(1)(a) of the Act provides: 35. (1) Human or international rights violation – A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for 35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants : (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; [Emphasis added.] a) commettre, hors du Canada, une des infractions visées aux articles 4 è 7 de la Loi sur les crimes contre l’humanité et les crimes de guerre; [Le souligné est de moi.]", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-108889-5", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 20–23", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "The present appeal implicates subsection 34(1) of the Act: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : […] [. . .] (c) engaging in terrorism; c) se livrer au terrorisme; […] [. . .] (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraphs (a), (b), (b.1) or (c). [Emphasis added.] f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c). [Le souligné est de moi.]\n\nRead together, clear differences exist between subsections 34(1) and 35(1). Under subsection 34(1) an inadmissibility finding flows from engaging in terrorism or membership in an organization that engages in terrorism; under subsection 35(1) an inadmissibility finding flows from the commission of an offence. Because criminal liability attaches to both the direct perpetrators and their accomplices, complicity is relevant to the subsection 35(1) analysis.\n\nIn contrast, nothing in paragraph 34(1)(f) requires or contemplates a complicity analysis in the context of membership. Nor does the text of this provision require a “member” to be a “true” member who contributed significantly to the wrongful actions of the group. These concepts cannot be read into the language used by Parliament.\n\nThis textual analysis of paragraph 34(1)(f) is informed by contextual and purposive considerations.", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-108889-6", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 24–26", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "The first contextual factor is paragraph 34(1)(c) of the Act which renders a person inadmissible for “engaging in terrorism”. Thus, paragraph 34(1)(c) of the Act contemplates actual participation in acts of terrorism, while paragraph 34(1)(f) is only concerned with membership in a terrorist organization. On the appellant’s interpretation of “membership”, paragraph 34(1)(c) would be redundant.\n\nMoreover, as noted by the Federal Court in Nassereddine v. Canada (Minister of Citizenship and Immigration), 2014 FC 85, 22 Imm. L.R. (4th) 297, at paragraph 74, while paragraph 34(1)(c) could possibly engage a consideration of complicity, this provision is not relevant to the finding under review that the appellant is inadmissible as a result of his membership in the TNA.\n\nThe second contextual factor is section 42.1 of the Act which permits the Minister to find a person not to be inadmissible pursuant to section 34 if the Minister is satisfied that such a finding is not contrary to the national interest. Because of the very broad range of conduct that gives rise to inadmissibility under paragraph 34(1)(f), the Minister is given discretion to grant relief against inadmissibility. There is no similar relieving provision applicable to a finding of inadmissibility under paragraph 35(1)(a). A relieving provision is not required where inadmissibility flows from the commission of an offence whether as perpetrator or accomplice.", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-108889-7", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 27–31", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "Finally, I note that the purposes underlying subsection 34(1) and paragraph 35(1)(a) are very different. Paragraph 34(1)(f) is animated by security concerns. This purpose is served by a wide definition of membership. In contrast, paragraph 35(1)(a) guards against abuse of the Refugee Convention by those who create refugees: those who create refugees are not refugees themselves (Ezokola, at paragraph 34).\n\nHaving concluded that Ezokola does not compel any change to the legal test used to establish membership, I next consider the reasonableness of the decision of the Immigration Division.\n\nAs explained above, the Immigration Division found that the appellant’s membership in the TNA constituted membership in the LTTE. I conclude on the basis of the evidentiary record before the Immigration Division that its decision was reasonable.\n\nThat said, great caution must be exercised when finding membership in one organization to be a proxy for membership in another. Particularly in the context of nationalist or liberation movements, the mere sharing of goals and coordination of political activities may well not justify this type of analysis.\n\nWith respect to consideration of the reasonableness of the decision of the Immigration Division in this case, there were three distinct categories of evidence before it: third-party country condition reports, the appellant’s own statements and the appellant’s contacts with senior LTTE leadership.", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-108889-8", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "para 32", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "As noted by the Immigration Division at paragraphs 28 to 42 of its reasons, the third-party country condition documentation included the following information about the LTTE’s influence over the TNA: • A Jane’s World Insurgency and Terrorism Report noted the LTTE’s instruction to Tamil leaders to join the TNA and that the LTTE head-office selected the TNA’s nominees in the 2004 election. The LTTE was said to have then launched a massive campaign in favour of TNA candidates. The campaign included the killing of several anti-TNA candidates and their supporters (Appeal Book, Volume 2, Tab 8, at pages 514-515). • A UNHCR “Background Paper on Refugees and Asylum-Seekers from Sri Lanka” reported the LTTE announced support for the TNA and further reported that candidates from rival parties were killed, allegedly by the LTTE (Appeal Book, Volume 4, Tab 13, at page 1017). • A chapter in “The Political Handbook of the World: 2005-2006” described the 2004 elections as “the first time the TNA explicitly served as the proxy of the LTTE, winning 22 seats in the north and east” (Appeal Book, Volume 2, Tab 7, at page 439). • An Amnesty International report covering Sri Lanka for 2005 reported that “[t]he LTTE-affiliated Tamil National Alliance (TNA) took the majority of seats in the north-east, where elections were marred by vote rigging, intimidation and violence” including the killing of rival candidates (Appeal Book, Volume 4, Tab 13, at page 1077).", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-108889-9", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "para 32", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "• A BBC News report quoted the appellant as saying: “To us the LTTE is the only movement that counts and [Tigers’ chief Velupillai] Prabhakaran is the only leader who counts”; the election was more a referendum on the armed struggle; and “[t]he world is saying, alright you fought and did some wonders but what guarantee is there that you have the backing of the people, […] this election will prove 70% to 80% of the Tamil people back the rebels” (Appeal Book, Volume 2, Tab 7, at pages 380-381). • The 2001 TNA election manifesto stated that in 50 years no just solution was found to the Tamil national question: Consequently, it was inevitable, that the armed struggle gained in strength, and the Liberation Tigers of Tamil Eelam came to occupy a paramount position, and play a pivotal role in the struggle of the Tamil nationality to win their rights. It would be futile not to recognize this reality. (Appeal Book, Volume 2, Tab 7, at page 294) • The 2004 election manifesto of the TNA advised: Accepting LTTE’s leadership as the national leadership of the Tamil Eelam Tamils and the Liberation Tigers as the sole and authentic representatives of the Tamil people, let us devote our full cooperation for the ideals of the Liberation Tigers’ struggle with honesty and steadfastness. Let us endeavour determinedly, collectively as one group, one nation, one country, transcending race and religious differences, under the leadership of the LTTE for a life of liberty, honour and justice for the Tamil people. Let us work side by side with the LTTE, who are fighting for the protection and autonomous life of the Tamil speaking people, for the political initiatives under their leadership.", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-108889-10", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 32–33", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "[Emphasis added.] (Appeal Book, Volume 2, Tab 7, at page 292) • The International Crisis Group reported in 2008 that the TNA’s platform was “pro-LTTE” and the TNA members of parliament chose “not to risk taking political positions independent from the LTTE” (Appeal Book, Volume 4, Tab 13, at page 1233). • In a speech delivered in South Africa, the appellant stated “And we the Eelam Tamils have decided to fight. We shall fight, but we want your help. We shall fight in the sea; we shall fight in the air: we shall fight in the land and when we fight it out and we have nothing but blood, toil and tears to give to our country” (Appeal Book, Volume 6, Tab 17, at pages 1644-1645).\n\nIn an interview conducted by an Inland Enforcement Officer, the appellant stated that the LTTE leader, Prabhakaran, had not initiated the TNA but “would have given his blessings” because “they are both fighting for the same cause” and he “knew that the TNA is being formed for Tamil cause” (Appeal Book, Volume 1, Tab 6, at pages 172-173). The appellant agreed “that TNA members were aligned with LTTE in Tamil cause” (Appeal Book, Volume 1, Tab 6, at page 182). Before the Immigration Division the appellant testified that while the LTTE’s violence was not ideal, “mass confrontation of the government was something unavoidable though unpalatable” (Appeal Book, Volume 6, Tab 18, at page 1678).", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-108889-11", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 34–36", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant admitted to attending a number of meetings with senior members of the LTTE and his shared goals with the LTTE. He stated his view of the inevitability of the LTTE’s armed struggle. Specifically: • The appellant quoted Prabhakaran as stating “we had to join the work as a team” with “[the LTTE] agitating the armed struggle and [the TNA] agitating Parliament struggle only, we call it the over ground movement” (Appeal Book, Volume 1, Tab 6, at page 177). • While denying that he received “directions” from Prabhakaran, the appellant considered the TNA parliamentary agitation “running parallel” with and sharing the “goal” of the LTTE (Appeal Book, Volume 1, Tab 6, at page 184). • While his own role was limited to parliamentary activism, the appellant considered armed struggle to be “part of any freedom struggle” and considered the LTTE’s armed struggle “unavoidable” (Appeal Book, Volume 1, Tab 6, at page 199).\n\nThe appellant argues that the Immigration Division ignored evidence that was favourable to the appellant.\n\nHowever, it is settled law that an adjudicator is not required to refer to every piece of evidence. More importantly, the evidence before the Immigration Division was conflicting. The reasons of the Immigration Division demonstrate that the member sifted through the record and was alive to the appellant’s challenge to the credibility of certain documents. The Immigration Division’s findings were amply supported on the record before the Immigration Division.", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-108889-12", - "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 37–38", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", - "part": "Federal Court of Appeal", - "division": "", - "text": "Section 33 of the Act requires only “reasonable grounds to believe” that facts giving rise to inadmissibility are present. In my view, the Immigration Division’s conclusion that there were “reasonable grounds to believe” in this case was within the range of outcomes acceptable and defensible on the facts and the law. The decision was therefore reasonable.\n\nFor these reasons, I would dismiss the appeal. I would answer the certified question as follows: Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 does not change the existing legal test for assessing membership in terrorist organizations under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. “Eleanor R. Dawson” J.A. “I agree. David Stratas J.A.” “I agree. Richard Boivin J.A.”", - "current_to": "2015-04-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" - }, - { - "id": "fca-35313-1", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 1–5", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "The issue in this appeal is whether the appellant is a member of a criminal organization so as to deny him the right of appeal to the Immigration Appeal Division (the IAD) on the question of whether he is inadmissible pursuant to paragraph 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).\n\nThis is an appeal against the decision of the Federal Court, dated September 6, 2005, reported as (2005), 258 D.L.R. (4th) 303, which upheld the decision of the Immigration Division of the Immigration and Refugee Board (the Board), wherein it issued a deportation order against the appellant on the grounds of organized criminality pursuant to paragraph 37(1)(a) of the IRPA.\n\nThe following questions were certified by the Judge: (a) Do the words “being a member of an organization” in paragraph 37(1)(a) of the IRPA include a person who was not a member at the time of reporting but was a member before that time? (b) What constitutes an “organization” within the meaning of paragraph 37(1)(a) of the IRPA, and does the A.K. Kannan gang fit within that meaning?\n\nThe appellant raised an additional issue as to whether the Judge erred in determining that the Board was entitled to consider certain police officers’ reports and testimony, in particular evidence about alleged criminal activity that was not followed by charges or convictions.\n\nThe facts may be briefly summarized. The appellant is a 35‑year-old citizen of Sri Lanka. He arrived in Canada in February 1990 and made a successful claim to be a Convention refugee. He became a permanent resident on July 17, 1992.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-2", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 6–8", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant has three criminal convictions: (1) failing to comply with a recognizance, dated January 24, 1992; (2) trafficking in a narcotic, dated July 8, 1996; and (3) obstructing a peace officer, dated February 1998. The appellant has also been investigated but never charged for gang‑related occurrences for his role in numerous offences which included attempted murder, assault with a weapon, aggravated assault, possession of a weapon dangerous to the public, pointing a firearm and using a firearm to commit an offence, threatening, extortion, and trafficking.\n\nThe appellant was identified by the Toronto police as the leader of A.K. Kannan, one of two rival Tamil gangs operating in Toronto. The appellant admitted his former involvement in the gang to police. He also admitted, in a statement to police on April 9, 2001, that his nickname is “A.K. Kannan”, the same name of the group of which he is alleged to be a member.\n\nThe appellant was reported under paragraph 27(1)(d) [as am. by S.C. 1992, c. 49, s. 16(F)] of the Immigration Act, R.S.C., 1985, c. I‑2 (repealed) (the former Act), by virtue of his drug trafficking conviction. He was subsequently reported under paragraph 27(1)(a) [as am. idem] and 19(1)(c.2) [as am. by S.C. 1996, c. 19, s. 83] of the former Act as a person for whom there are reasonable grounds to believe is engaged in activity planned and organized by a number of persons acting together to commit criminal offences. The allegation was that the appellant “is or was a member of an organization known as the A.K. Kannan gang”.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-3", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 9–12", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "An inquiry under the former Act commenced in January 2002. When the IRPA came into force in June 2002, the inquiry continued under sections 36 and 37 of the IRPA. The appellant conceded that he was a person described in section 36 due to his drug trafficking conviction, but he disputed the organized criminality allegation.\n\nThe importance of the inquiry to the appellant was that, unless he was found not to be a person described in paragraph 37(1)(a) of the IRPA, the appellant would be deported to Sri Lanka without a right of an appeal to the IAD, having regard to subsection 64(1) of the IRPA.\n\nThe Board made a finding on October 4, 2004 that the appellant is inadmissible for organized criminality pursuant to paragraph 37(1)(a) of the IRPA because he was a member of an organization, the A.K. Kannan gang, believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable by indictment under an Act of Parliament. Being unable to appeal to the IAD, the appellant applied for judicial review to the Federal Court.\n\nOn judicial review, the Federal Court Judge upheld the Board’s determination regarding the appellant’s inadmissibility to Canada. That decision is the subject of this appeal.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-4", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 13", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "The provisions in the IRPA most relevant to this appeal are as follows. Objectives – Immigration Objet en matière d’immigration 3.(1) The objectives of this Act with respect to immigration are 3.1 En matière d’immigration, la présente loi a pour objet: … […] (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and i) de promouvoir, à l’échelle internationale, la justice et la sécurité par le respect des droits de la personne et l’interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité; … […] Rules of interpretation Interprétation 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33. Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-5", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 13", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "… […] Organized criminality Activités de criminalité organisée 37.(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for 37.(1) Emportent interdiction de territoire pour criminalité organisée les faits suivants : (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or a) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d’un tel plan; (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime. b) se livrer, dans le cadre de la criminalité transnationale, à des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-6", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 13–16", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "(2) The following provisions govern subsection (1): (2) Les dispositions suivantes régissent l’application du paragraphe (1): (a) subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; and (a) les faits visés n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national; (b) paragraph (1) (a) does not lead to a determination of inadmissibility by reason of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity. (b) les faits visés à l’alinéa (1)a) n’emportent pas interdiction de territoire pour la seule raison que le résident permanent ou l’étranger est entré au Canada en ayant recours à une personne qui se livre aux activités qui y sont visées.\n\nThe first certified question concerns whether the words in paragraph 37(1)(a) “being a member” include a person who was not a member of a criminal organization at the time of the inadmissibility report, but was a member before that time.\n\nThis requires the Court to assess the proper interpretation of the language in paragraph 37(1)(a) of the IRPA. The interpretation of statutes is generally considered to be a question of law; therefore, the standard of review to be applied on this appeal of the case is correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paragraph 8.\n\nThe Federal Court Judge held that paragraph 37(1)(a) includes a person who was a member of a criminal organization before the inadmissibility report. For the following reasons, I agree.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-7", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 17", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "First, this meaning is consistent with the wording of the former Act. Paragraph 19(1)(c.2) of the former Act specifically referred to those who “are or were members”. It read: Inadmissible persons Personnes non admissibles 19.(1) No person shall be granted admission who is a member of any of the following classes: 19.(1) Les personnes suivantes appartiennent à une catégorie non admissible : …. […] (c.2) persons who there are reasonable grounds to believe are on were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code or Controlled Drugs and substances Act that my be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; c.2) celles dont il y a des motifs raisonnables de croire qu’elles sont ou ont été membres d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction au Code criminel ou à la Loi réglementant certaines drogues et autres substances qui peut être punissable par mise en accusation ou a commis à l’étranger un fait—acte ou omission—qui, s’il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l’intérêt national;", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-8", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 18–20", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "One of Parliament’s objectives when enacting the IRPA was to simplify the former Act. Section 33 does just that: it reduces the necessary repetition of the phrases denoting past, present and future membership in the former Act by establishing a “rule of interpretation” that permits a decision maker to consider past, present and future facts when making a determination as to inadmissibility.\n\nIf one were to interpret paragraph 37(1)(a) as including only present membership in an organization, it would, in effect, render section 33 redundant. The Board said (at page 49), and I concur, that consideration of evidence of a person’s history and future plans would be relevant to the question of whether a person is currently a member of an organization described in section 37, even without codification to such effect in legislation.\n\nIn my view, Parliament must have intended section 33 to have some meaning. The language of section 33 is clear that a present finding of inadmissibility, which is a legal determination, may be based on a conclusion of fact as to an individual’s past membership in an organization. In other words, the appellant’s past membership in the A.K. Kannan gang, a factual determination, can be the basis for a legal inadmissibility finding in the present.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-9", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 21–22", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "Second, this interpretation is consistent with the purpose of the inadmissibly provisions and the IRPA as a whole. The inadmissibility provisions have, as one of their objectives, the protection of the safety of Canadian society. They facilitate the removal of permanent residents who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism. If one were to interpret “being a member” as including only present membership in an organization described in paragraph 37(1)(a), this would have a contrary effect, by narrowing the scope of persons who are declared inadmissible, thereby increasing the potential risk to Canadian safety.\n\nThird, if the Court were to interpret “being a member” as including only current members, it would lead to absurd results that could not have be intended by Parliament. This would mean that sections 34 (terrorism/security), 35 (crimes against humanity), and 37 (organized criminality) of the IRPA, all of which use the wording “being a member” or “being a prescribed senior official,” would only refer to current circumstances.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-10", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 23–24", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "Such an interpretation would also mean that a former member of the Nazi party in Germany could not be found inadmissible because the Nazi party no longer exists, so that he is no longer a member. It would mean that a member of an international terrorist organization could renounce his or her membership immediately prior to making a refugee claim, and would not be inadmissible because he is not a current member of a terrorist organization. It would also mean that a person who spends 10 years as a member of an organization engaged in criminal activities within Canada could withdraw from the organization before being reported under the IRPA and avoid a finding of inadmissibility.\n\nFourth, the jurisprudence supports this interpretation. In Zündel (Re) (2005), 251 D.L.R. (4th) 511 (F.C.), the Federal Court addressed whether past wrongdoing can constitute the basis for inadmissibility under section 34 of the IRPA. Pursuant to paragraph 34(1)(f), a person can be found to be inadmissible for “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a) [espionage], (b) [subversion by force of any government] or (c) [terrorism].” Blais J. held (at paragraph 18) that an admissibility determination under section 34 cannot be restricted to present circumstances. Pursuant to section 33, “the [Minister] can provide evidence or information of past, present or anticipated future circumstances of . . . inadmissibility on security grounds.”", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-11", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 25", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "More recently, in Charkaoui (Re), [2005] 2 F.C.R. 299 (F.C.A.), appeal to the Supreme Court of Canada [reversed on (2007), 358 N.R. 1, 2007 SCC 9] granted, this Court was concerned with whether there were reasonable grounds to believe that Charkaoui was inadmissible pursuant to section 34 on account of being a member of a terrorist organization. Décary and Létourneau JJ.A. stated (at paragraph105): “inadmissibility must be based, under section 33 of the IRPA, on the Minister’s reasonable grounds to believe that the acts or omissions referred to in sections 34 to 37 have occurred, are occurring or, if preventive considerations are involved, may occur.”", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-12", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 26–27", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "This issue was also addressed by Russell J. in the decision of Hussenu v. Canada (Minister of Citizenship and Immigration) (2004), 247 F.T.R. 137 (F.C.). There, Hussenu argued that he was not inadmissible under paragraph 34(1)(f) of the IRPA because he had ceased to be a member of the Eritrean Liberation Front immediately prior to making a refugee claim. The Court denied the appeal, stating (at paragraph 39): Section 34(1)(f) of IRPA does use the words “being a Member of an organization . . .,” but s. 33 specifically provides that “ . . . facts that constitute inadmissibility under ss. 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts from which there are reasonable grounds to believe that they have occurred, are occurring or may occur.” [emphasis added]. If the Applicant’s argument concerning s. 34(1)(f) were correct on this issue, then s. 34 would not apply to a terrorist who resigns his or her membership in a terrorist organization immediately prior to making a refugee claim. It could not have been Parliament’s intent to exclude such an applicant from the purview of s. 34(1)(f) and s. 33 makes this position clear.\n\nThe appellant submits that an interpretation of paragraph 37(1)(a) as including past members would not permit absolution for persons who were associated with criminal organizations in the past, realized that it is not what they wanted to do with their life, and genuinely withdrew without having engaged in criminal activity.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-13", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 28–31", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "This argument is not persuasive. Subsection 37(2) of the IRPA is intended to alleviate the harshness of the inadmissibility rule where, as the appellant suggests, there is evidence of a person’s genuine withdrawal from membership. Provided the permanent resident can satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest, the inadmissibility rule in paragraph 37(1)(a) could be overcome.\n\nBased on all of the above, I answer the first certified question in the affirmative.\n\nThe second certified question in this appeal requires the Court to determine what constitutes an “organization” within the meaning of paragraph 37(1)(a), and in particular, does the A.K. Kannan gang fit within that meaning?\n\nThe answer to the first part of the question, the proper meaning of the word “organization” in view of paragraph 37(1)(a), is a legal determination and is to be reviewed on a correctness standard: Housen, at paragraph 8.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-14", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 32–33", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "The answer to the second part of the question, whether the A.K. Kannan gang falls within the meaning of “organization” for the purposes of paragraph 37(1)(a), is a mixed question of fact and law; it involves applying the legal standard to the facts and evidence in each particular case. In Housen, at paragraph 36, the Supreme Court said: Matters of mixed fact law lie along a spectrum. Where, for instance, an error. . .can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. . . . Where the legal principle is not readily extractible, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.\n\nUnless this Court finds that the Judge incorrectly characterized the law as regards paragraph 37(1)(a), the Judge’s decision that the A.K. Kannan gang falls within the meaning of “organization” will not be reviewed in the absence of a palpable and overriding error: Housen, at paragraph 10.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-15", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 34–35", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "The word “organization” is not defined in the IRPA. The appellant submits that the lack of a statutory definition creates a danger of courts over‑reaching to cover the broadest range of criminal action that may appear to be taken in association with others. According to the appellant, a precise definition is required given the serious consequences of inadmissibility and the fact that membership alone constitutes inadmissibility. In reliance on international law and criminal jurisprudence, the appellant argues that for the purpose of paragraph 37(1)(a), an “organization” must, at minimum, have a common criminal purpose and a sufficient structure to allow the benefits of its illegal conduct to be shared.\n\nIn contrast with this submission, in the case of Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 (F.C.T.D.), Rothstein J., as he then was, held that the term “member” (of an organization), found in subparagraph 19(1)(f)(iii) [as am. by S.C. 1992, c. 49, s. 11] of the former Act, dealing with terrorism and espionage threats to Canadian security, was to be given an unrestricted and broad interpretation. He said, at paragraph 52: The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not easily identifiable. . . . I think it is obvious that Parliament intended the term “member” to be given an unrestricted and broad interpretation. I find no support for the view that a person is not a member as contemplated by the provision if he or she became a member after the organization stopped engaging in terrorism.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-16", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 36–37", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, the same “unrestricted and broad” interpretation should be given to the word “organization” as it is used in paragraph 37(1)(a). The IRPA signifies an intention, above all, to prioritize the security of Canadians. This was confirmed by the Supreme Court of Canada in the decision of Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, at paragraph 10: The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. . . . the objectives of the IRPA and its provisions concerning permanent resident, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.\n\nParagraph 37(1)(a) appears to be an attempt to tackle organized crime, in recognition of the fact that non‑citizen members of criminal organizations are as grave a threat as individuals who are convicted of serious criminal offences. It enables deportation of members of criminal organizations who avoid convictions as individuals but may nevertheless be dangerous.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-17", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 38", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "Recent jurisprudence supports this interpretation. In Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 301 (F.C.), reversed on other grounds, [2006] 1 F.C.R. 474 (F.C.A.), O’Reilly J. took into account various factors when he concluded that two Tamil gangs (one of which was the A.K. Kannan gang at issue here) were “organizations” within the meaning of paragraph 37(1)(a) of the IRPA. In his opinion, the two Tamil groups had “some characteristics of an organization”, namely “identity, leadership, a loose hierarchy and a basic organizational structure” (at paragraph 31). The factors listed in Thanaratnam, as well as other factors, such as an occupied territory or regular meeting locations, both factors considered by the Board, are helpful when making a determination under paragraph 37(1)(a), but no one of them is essential.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-18", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 39–40", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "These criminal organizations do not usually have formal structures like corporations or associations that have charters, by-laws or constitutions. They are usually rather loosely and informally structured, which structures vary dramatically. Looseness and informality in the structure of a group should not thwart the purpose of the IRPA. It is, therefore, necessary to adopt a rather flexible approach in assessing whether the attributes of a particular group meet the requirements of the IRPA given their varied, changing and clandestine character. It is, therefore, important to evaluate the various factors applied by O’Reilly J. and other similar factors that may assist to determine whether the essential attributes of an organization are present in the circumstances. Such an interpretation of “organization” allows the Board some flexibility in determining whether, in light of the evidence and facts before it, a group may be properly characterized as such for the purposes of paragraph 37(1)(a).\n\nWith respect to the appellant’s argument that criminal jurisprudence and international instruments should inform the meaning of a criminal “organization”, I disagree. Although these materials can be helpful as interpretive aides, they are not directly applicable in the immigration context. Parliament deliberately chose not to adopt the definition of “criminal organization” as it appears in subsection 467.1(1) [as enacted by S.C. 1997, c. 23, s. 11; 2001, s. 32, s. 27] of the Criminal Code, R.S.C., 1985, c. C‑46. Nor did it adopt the definition of “organized criminal group” in the United Nations Convention against Transnational Organized Crime [November 2000, GA Res. 55/25] (the Convention). The wording in paragraph 37(1)(a) is different, because its purpose is different.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-19", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 41–45", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "In this case, the Judge, as did the Board, correctly considered the legislation and applied the law as set out in Thanaratnam, in the interpretation of the term “organization.” Accordingly, I find no error of law relating to the first part of the certified question.\n\nWith respect to the second part of the certified question, the appellant argues that the Judge committed a palpable and overriding error when he upheld the Board’s decision that the A.K. Kannan gang is an organization within the meaning of paragraph 37(1)(a). I disagree.\n\nThe Board considered the evidence before it and found that there were six relevant indicia of “organization” for the A.K. Kannan gang in this case: leadership, an elementary form of hierarchy, the giving of instructions from a leader, a specific and identifying name, an occupied territory, and chosen locations for meeting within their specified territory in Ontario. The Board concluded that all of the evidence taken together was sufficient to conclude that A.K. Kannan was an organization, and the Judge, considering the evidence related to most of the same factors, upheld this decision.\n\nThe appellant submits that the Board ignored his testimony that there was no organization and ignored a report prepared for the Canadian Tamil Youth Development Centre (the CTYDC report), which characterizes Tamil gangs as loose associations with no organizational structure.\n\nThe Board concluded that the appellant was not a credible witness, and gave detailed reasons for its conclusion. Further, the Board considered the CTYDC report and discussed it within its reasons. The Board was entitled to weigh the report and give it little effect in the context of the conflicting evidence. The appellant has failed to show that the Board’s decision was perverse or irrational.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-20", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 46–50", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "Accordingly, the Judge did not commit any palpable and overriding error in upholding the Board’s finding that the A.K. Kannan gang is an “organization” within the meaning of paragraph 37(1)(a) of the IRPA.\n\nParagraph 37(1)(a) of the IRPA applies where an organization of which one is a member is believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment.\n\nThe appellant argues that the Judge erred when he held that the Board was entitled to give weight to the police reports of criminal activity, unsubstantiated by conviction, as evidence of his, or the organization’s, involvement in criminal activity.\n\nIn admissibility hearings the Board is not bound by the strict rules of evidence. Once the tribunal determines that the evidence is credible and trustworthy then it is admissible, and the question of how the evidence was obtained becomes relevant merely as to the weight attached to the evidence: section 173 of the IRPA.\n\nThe jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual’s criminality: see, for example, Veerasingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 1661, at paragraph 11; Thuraisingam v. Canada (Minister of Citizenship and Immigration), (2004) 251 F.T.R. 282 (F.C.), at paragraph 35.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-21", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 51–53", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "In this regard, I agree with the Judge that the Board did not rely on the police source evidence as evidence of the appellant’s wrongdoing. Rather, it considered the circumstances underlying the charges and contemplated charges—including the frequency of the appellant’s interactions with the police and the fact that others involved were often gang members—to establish that there are “reasonable grounds to believe,” a standard that is lower than the civil standard, that the A.K. Kannan gang engages in the type of activity set out in paragraph 37(1)(a).\n\nThe appellant also submits that the police source evidence in this case is not credible and reliable evidence. Many of the police reports were made before a proper investigation, and were not supported by the testimony of the police officers and witnesses that were involved. Further, the appellant argues that the evidence hinted that the police lacked objectivity; that their view of the appellant was biased.\n\nIn this regard, I find that the Board considered the police source evidence credible and trustworthy in the circumstances of the case, and such a decision is entirely within its discretion. The Board is uniquely situated to assess credibility of evidence in an inadmissibility hearing; credibility determinations are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence: Federal Courts Act, R.S.C., 1985, c. F‑7 [section 1 (as am. by S.C. 2002, c. 8, s. 14)], paragraph 18.1(4)(d) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27].", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-22", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 54–56", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant has not demonstrated that the Board’s findings, or the Judge’s acceptance of those facts, were perverse or capricious. Therefore, I find no reviewable error in respect of this issue.\n\nI am satisfied that the Judge correctly interpreted paragraph 37(1)(a) of the IRPA when reviewing the Board’s findings. I would answer the certified questions as follows: (a) The phrase “being a member of an organization” in paragraph 37(1)(a) of the IRPA includes a person who was not a member at the time of the reporting, but was a member before that time. (b) The word “organization”, as it is used in paragraph 37(1)(a) of the IRPA, is to be given a broad and unrestricted interpretation. While no precise definition can be established here, the factors listed by O’Reilly J. in Thanaratnam, by the Board member, and possibly others, are helpful when making a determination, but no one of them is an essential element. The structure of criminal organizations is varied, and the Board must be given flexibility to evaluate all of the evidence in the light of the legislative purpose of the IRPA to prioritize security in deciding whether a group is an organization for the purpose of paragraph 37(1)(a). The A.K. Kannan gang, as found by the Board and the Judge, fits within this meaning.\n\nFor these reasons, I would dismiss the appeal. \"A.M. Linden\" J.A. “I agree. M. Nadon J.A.” “I agree. J. Edgar Sexton J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-31607-1", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 1–3", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal on a certified question from a decision of Gauthier J. dated October 21, 2003. The certified question is: Are the detention reviews made pursuant to s. 57(2) and 58 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, hearings de novo and does the detained person bear the burden of establishing that he/she is not a danger to the Canadian public or not a flight risk at such reviews? FACTS\n\nThe facts may be briefly summarized. The respondent was arrested on October 18, 2001, on an immigration warrant on the grounds that he was a danger to the public because he was one of the leaders of the VVT, a Tamil gang operating in Toronto. His detention was reviewed under the provisions of section 103 of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act) and, after it came into force, sections 57 and 58 of the Immigration and Refugee Protection Act (the new Act). At his first five detention reviews, the respondent's continued detention was ordered. On November 5, 2002, his detention was reviewed by Mr. V. Tumir, a member of the Immigration Division of the Immigration and Refugee Board, who ordered him released on conditions. The Minister applied for judicial review and, in the interim, obtained a stay until the next detention review was completed.\n\nThe next detention review was conducted by Mr. A. Iozzo of the Immigration Division, who on March 18, 2003, confirmed the findings of Mr. Tumir and ordered that the respondent be released. The Minister obtained a stay of that order and sought judicial review. It was this judicial review that was the subject matter of the Order of Gauthier J. of October 21, 2003, and which gives rise to this appeal. ISSUES", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-2", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister raises two issues. He first says that detention reviews under the new Act are not de novo and that the detained person bears the burden of proving that previous decisions to detain should be set aside. He then says that Mr. Iozzo made errors of law and patently unreasonable errors of fact. Therefore, he says, Gauthier J. erred in not overturning Mr. Iozzo's decision. RELEVANT PROVISIONS Immigration and Refugee Protection Act 57. (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention. (2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention. ... 57. (1) La section contrôle les motifs justifiant le maintien en détention dans les quarante-huit heures suivant le début de celle-ci, ou dans les meilleurs délais par la suite. (2) Par la suite, il y a un nouveau contrôle de ces motifs au moins une fois dans les sept jours suivant le premier contrôle, puis au moins tous les trente jours suivant le contrôle précédent. ... 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); ...", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-3", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada. ... 58. (1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants_: a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2); ... (2) La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi. ... Immigration and Refugee Protection Regulations, SOR/2002-227 47(2) A person who posts a guarantee must ... (b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and ... 47(2) La personne qui fournit la garantie d'exécution doit : ... b) être capable de faire en sorte que la personne ou le groupe de personnes visé par la garantie respecte les conditions imposées; ... 244.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-4", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person (a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act; (b) is a danger to the public; ... 244. Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation : a) du risque que l'intéressé se soustraie vraisemblablement au contrôle, à l'enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d'une mesure de renvoi en vertu du paragraphe 44(2) de la Loi; b) du danger que constitue l'intéressé pour la sécurité publique; ... 245. For the purposes of paragraph 244(a), the factors are the following: ... (c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding; (d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal; (e) any previous avoidance of examination or escape from custody, or any previous attempt to do so; ... (g) the existence of strong ties to a community in Canada. 245. Pour l'application de l'alinéa 244a), les critères sont les suivants : ... c) le fait de s'être conformé librement à l'obligation de comparaître lors d'une instance en immigration ou d'une instance criminelle; d) le fait de s'être conformé aux conditions imposées à l'égard de son entrée, de sa mise en liberté ou du sursis à son renvoi; e) le fait de s'être dérobé au contrôle ou de s'être évadé d'un lieu de détention, ou toute tentative à cet égard; ...", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-5", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "g) l'appartenance réelle à une collectivité au Canada. 246. For the purposes of paragraph 244(b), the factors are the following: ... (b) association with a criminal organization within the meaning of subsection 121(2) of the Act; ... (d) conviction in Canada under an Act of Parliament for ... (ii) an offence involving violence or weapons; ... 246. Pour l'application de l'alinéa 244b), les critères sont les suivants : ... b) l'association à une organisation criminelle au sens du paragraphe 121(2) de la Loi; ... d) la déclaration de culpabilité au Canada, en vertu d'une loi féd��rale, quant à l'une des infractions suivantes : ... (ii) infraction commise avec violence ou des armes; ... 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. 248. S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé; e) l'existence de solutions de rechange à la détention.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-6", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "Immigration Act 103. (1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where (a) an examination or inquiry is to be held, a decision is to be made pursuant to subsection 27(4) or a removal order or conditional removal order has been made with respect to the person; and (b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada. ... (6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-7", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond. ... 103. (1) Le sous-ministre ou l'agent principal peut lancer un mandat d'arrestation contre toute personne qui doit faire l'objet d'un interrogatoire, d'une enquête ou d'une décision de l'agent principal aux termes du paragraphe 27(4), ou qui est frappée par une mesure de renvoi ou de renvoi conditionnel, lorsqu'il croit, pour des motifs raisonnables, qu'elle constitue une menace pour la sécurité publique ou qu'elle ne comparaîtra pas, ou n'obtempérera pas à la mesure de renvoi. ... (6) Si l'interrogatoire, l'enquête ou le renvoi aux fins desquels il est gardé n'ont pas lieu dans les quarante-huit heures, ou si la décision n'est pas prise aux termes du paragraphe 27(4) dans ce délai, l'intéressé est amené, dès l'expiration de ce délai, devant un arbitre pour examen des motifs qui pourraient justifier une prolongation de sa garde; par la suite, il comparat devant un arbitre aux mêmes fins au moins une fois: a)dans la période de sept jours qui suit l'expiration de ce delai; b)tous les trente jours après l'examen effectué pendant cette période.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-8", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 4–6", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "(7) S'il est convaincu qu'il ne constitue vraisemblablement pas une menace pour la sécurité publique et qu'il ne se dérobera vraisemblablement pas à l'interrogatoire, à l'enquête ou au renvoi, l'arbitre chargé de l'examen prévu au paragraphe (6) ordonne la mise en liberté de l'intéressé, aux conditions qu'il juge indiquées en l'espèce, notamment la fourniture d'un cautionnement ou d'une garantie de bonne exécution. ... THE CERTIFIED QUESTION\n\nThere are two issues that must be decided: (1) whether detention reviews are hearings de novo; and (2) who bears the burden of proof in a detention review. Nature of the Hearing\n\nI think it is important to first clarify the use of the term de novo. Strictly speaking, a de novo review is a review in which an entirely fresh record is developed and no regard at all is had to a prior decision (see Bayside Drive-in Ltd. v. M.N.R. (1997), 218 N.R. 150 at 156 (F.C.A.); Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 at 166 (C.A.)). This is not what occurs in a detention review. In Canada (Minister of Citizenship and Immigration) v. Lai, [2001] 3 F.C. 326 at 334 (T.D.), Campbell J. held that in a detention review, \"all existing factors relating to custody must be taken into consideration, including the reasons for previous detention orders being made.\" Although Campbell J. was dealing with the former Act, there is no reason why this ruling should not apply to the new Act. Therefore, de novo review is not a precisely accurate way of describing the kind of review hearing held under sections 57 and 58 of the new Act.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-9", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 7–8", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "On the other hand, I also can not accept the submission made by the Minister in his factum that the findings of previous Members should not be interfered with in the absence of new evidence. In considering detention reviews held under the former Act, MacKay J. of the Trial Division (as it then was) held that: ... the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal. It is not sufficient, in my opinion, that the adjudicator proceed ... by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision (Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150 at 159 (T.D.)).\n\nNothing in the new sections 57 and 58 indicates that MacKay J.'s reasoning should not continue to apply to detention review hearings held under the new Act. As Adjudicators did under the former Act, the Immigration Division reviews \"the reasons for the continued detention\" [emphasis added]. Nor does the new Act draw any distinction between the first and subsequent detention reviews or impose any requirement for new evidence to be presented. Rather, at each hearing, the Member must decide afresh whether continued detention is warranted. The Treatment of Prior Decisions", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-10", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 9–12", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "The question then is what weight must be given, in subsequent reviews, to previous decisions. As became clear in oral argument, the Minister does not say that prior decisions to detain an individual are binding at subsequent detention reviews. Rather, the Minister says that a Member must set out clear and compelling reasons in order to depart from previous decisions to detain an individual.\n\nDetention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a Member, I agree with the Minister that if a Member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons.\n\nCredibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker's assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.\n\nThe best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-11", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 13–15", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way. Burden of Proof\n\nWhen determining who bears the burden of proof at a detention review hearing, it is important to remember that sections 57 and 58 allow persons to be detained for potentially lengthy, if not indefinite, periods of time, without having been charged with, let alone having been convicted of any crime. As a result, detention decisions must be made with section 7 Charter considerations in mind (Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at 225-231 (T.D.)).\n\nSubsection 103(7) of the former Act provided that an adjudicator shall order release if \"satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal.\" Under that provision, Campbell J. held that \"the initial onus of proving continued detention is warranted rests with the proposer of such an order\", i.e. the Minister (Lai at 334). If anything, this holding applies even more strongly to section 58 which provides that \"the Immigration Division shall order the release of the permanent resident or foreign national unless it is satisfied\" that one of the listed conditions is met [emphasis added]. I therefore agree with Gauthier J. that it is the Minister who must establish, on a balance of probabilities, that the respondent is a danger to the public if he wants the detention to continue.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-12", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 16–17", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention. The Minister may establish a prima facie cases in a variety of ways, including reliance on reasons for prior detentions. As Gauthier J. put it in her reasons at paragraph 75: ... at the beginning of the hearing, the burden was always on the shoulder of the proponent of the detention order, the Minister, but then this burden could quickly shift to the respondent if previous decisions to continue the detention were found compelling or persuasive by the adjudicator presiding [sic] the review. MR. IOZZO'S DECISION\n\nThe Minister has attempted to point out a number of inconsistencies in Mr. Iozzo's reasons. For the most part, the Minister is simply arguing that Mr. Iozzo did not properly assess the reliability of the evidence before him. However, as Gauthier J. determined, the Minister has not demonstrated that these factual findings are patently unreasonable.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-13", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 18", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nonetheless, the Minister argues that Mr. Iozzo failed to give clear and compelling reasons to show why he departed from the prior decisions to detain the respondent. In his decision, Mr. Iozzo stated: The decision to be made at this review is a decision de novo, where the previous decisions are considered, and given due deference and respect; ultimately, a new decision must be made on the basis of that member's judgment and assessment of the evidence. ... Deference must be shown to previous decisions, but \"error\" cannot be continued for the sake of consistency.10 In analyzing the records of previous reviews, I have pondered the reasons for detention and the reasons for release provided by previous members. For this review to have any significance, however, I have to make an honest decision on my assessment of all the evidence [Emphasis in original]. 10Cogent reasons must of course be provided by the decision maker justifying deviation from decisions of colleagues.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-14", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 19", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "From this statement, it seems apparent that Mr. Iozzo paid appropriate regard to the prior decisions. Mr. Iozzo's disagreement and the reasons for it are clearly implicit in his decision. On page 11 of his reasons, Mr. Iozzo points out that all of the previous members had recognized that there were credibility problems associated with the various witness statements and that even Minister's counsel had conceded before him that there were contradictions and inconsistencies in those statements. He then cites numerous examples of such inconsistencies. He concludes by stating at pages 14-15 that \"at the end of the day, apart [sic] the Court documents entered into evidence and the undisputed facts, I was left with a whole box of material containing statements by untrustworthy people contradicting one another's statements and contradicting their own statements.\"", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-15", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 20", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "Where Mr. Iozzo differed from the decisions of the Members who had ordered the respondent's continued detention was his unwillingness to accept the proposition that \"non-credible statements can become credible by their number, or that a lie many times told by different people becomes the truth\" (page 15). He therefore implicitly rejected the \"common thread\" approach on which the previous decisions were based (see M.C.I. v. Thanabalasingham (18 March 2002), Toronto 0003-A1-02365 at 9 and 19 (I.R.B. (Adj. Div.)), Ms. Gratton; M.C.I. v. Thanabalasingham (28 May 2002), Milton 0003-A1-02365 at 3 (I.R.B. (Adj. Div.)), Ms. Simmie (Adjudication File Summary of Detention Review Hearing); and M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 92 (I.R.B. (Imm. Div.)), Mr. Murrant). Having regard to the need to come to a fresh decision at each detention review, albeit one that pays proper attention to the previous decisions, this conclusion is one which was open to Mr. Iozzo and which Gauthier J. was correct not to disturb.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-16", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 21–22", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister also argues that Mr. Iozzo erred in law in his treatment of the respondent's previous convictions. The Minister says that Mr. Iozzo incorrectly held that previous convictions alone could not support a finding that a detainee is a danger to the public. I agree with Gauthier J. that: Mr. Iozzo could have described in more detail his reasoning, but his failure to do so does not constitute a reviewable error when it is clear from his decision itself that he had considered all the evidence relating to the context of those convictions and, nevertheless, declared himself not satisfied that they alone could support a detention order (paragraph 124). Mr. Iozzo did not hold that previous convictions alone could never support a danger finding; rather, he held that these particular convictions could not do so in the circumstances of this case. I agree with Gauthier J. that such a finding was reasonably open to him.\n\nFinally, the Minister argues that Mr. Iozzo erred in approving proposed guarantors because he did not consider whether they were \"able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed\" as required by paragraph 47(2)(b) of the Immigration and Refugee Protection Regulations and because the proposed guarantors would not be able to assert sufficient control over the respondent.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-17", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 23–24", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "Although Mr. Iozzo did not expressly refer to paragraph 47(2)(b), he did consider whether the proposed guarantors would be adequately able to control the respondent if he were released. He agreed with Mr. Tumir and Mr. Murrant who had concluded that substantial bonds would be sufficient to address this concern. Mr. Tumir (M.C.I. v. Thanabalasingham (5 November 2002), Milton 0003-A1-02365 at 25-26 (I.R.B. (Imm. Div.))) and Mr. Murrant (M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 90-91 (I.R.B. (Imm. Div.))) had already specifically addressed and rejected this concern. It was not unreasonable for Mr. Iozzo to rely on their findings on this point. CONCLUSION\n\nThe reasons of Gauthier J. are logical and clear. I am fully satisfied that she correctly applied the proper standards of review to Mr. Iozzo's findings and that she correctly interpreted the relevant law. I would dismiss the appeal. I would answer the certified question as follows: At each detention review made pursuant to sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001, c. 27, the Immigration Division must come to a fresh conclusion whether the detained person should continue to be detained. Although an evidentiary burden might shift to the detainee once the Minister has established a prima facie case, the Minister always bears the ultimate burden of establishing that the detained person is a danger to the Canadian public or is a flight risk at such reviews. However, previous decisions to detain the individual must be considered at subsequent reviews and the Immigration Division must give clear and compelling reasons for departing from previous decisions.", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-31607-18", - "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", - "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 25", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister is at liberty, at any time, to re-arrest the respondent and secure his detention and continued detention on the basis of adequate evidence. If the Minister is of the opinion that the respondent is a danger to the public, he should take the steps that are available to him under the new Act to secure the respondent's detention. \"Marshall Rothstein\" J.A. \"I agree A.J. Stone J.A.\" \"I agree K. Sharlow J.A.\" FEDERAL COURT OF APPEAL", - "current_to": "2004-01-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" - }, - { - "id": "fca-305100-1", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 1–3", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "This appeal is from the judgment of Crampton C.J. of the Federal Court (2016 FC 1199), granting five consolidated applications by the Minister for judicial review, setting aside the five corresponding orders issued by members of the Immigration Division of the Immigration and Refugee Board releasing the appellant from immigration detention on conditions, and remitting the question of release or continued detention to Member Cook of the ID, who made the most recent of the five orders.\n\nIn both their written and their oral submissions the parties focused on the application judge’s decision with respect to the order of Member Cook, which superseded the four earlier orders. It is appropriate to do the same in these reasons.\n\nHowever, my doing so leads me reluctantly but inescapably to the conclusion that this Court lacks jurisdiction to decide the appeal. The question as certified by the application judge, on which this Court’s jurisdiction depends, does not in my respectful view meet the well-established criteria for certification, and reformulation of the question would not render it compliant. I say “reluctantly” because the appeal was well and fully argued on the merits, and because underlying the certified question may well be a serious legal question of general importance that, as the application judge suggested, calls for further judicial consideration. But the question as framed is not dispositive of the appeal as it was argued, so that deciding the appeal would take the Court outside the role that Parliament envisaged for it in immigration matters. I see no alternative therefore but to dismiss the appeal.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-2", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 4–6", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In explaining why I reach this conclusion, I will first briefly outline the scheme of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as it relates to removal orders, detention and release. Next, I will set out the relevant background, addressing the circumstances relating to the appellant’s detention, Member Cook’s decision, and the decision on judicial review. I will then consider in more detail the requirements that a certified question must meet and how in my view those requirements are not met in this case. I appreciate that all of this is a rather lengthy prelude to a decision that ultimately does not address the merits of the appeal, but the context may nonetheless prove helpful in grounding the disposition that I propose.\n\nThe Immigration and Refugee Protection Act establishes a framework for immigration to Canada and the grant of refugee protection. The objectives of the IRPA are set out in subsection 3(1). By paragraphs 3(1)(h) and 3(1)(i), they include the protection of public health and safety and the security of Canadian society and the promotion of international justice and security by fostering respect for human rights and denying access to Canadian territory to persons who are criminals or security risks.\n\nBy sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, violation of human or international rights, serious criminality, criminality or organized criminality. A removal order is enforceable if it has come into force and is not stayed (subsection 48(1)). If a removal order is enforceable, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (subsection 48(2)).", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-3", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 7–9", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Act authorizes the arrest and detention of a permanent resident or foreign national who there are reasonable grounds to believe is inadmissible and a danger to the public or unlikely to appear for removal from Canada or at a proceeding that could lead to removal (subsection 55(1)).\n\nWithin 48 hours of arrest, the Immigration Division of the Immigration and Refugee Board is required to review the reasons for detention (subsection 57(1)). Following this initial review, the ID must conduct additional reviews within seven days and at least once every 30 days thereafter (subsection 57(2)).\n\nIn a detention review, the ID must assess whether there are grounds for detention: whether, among other things, the detainee is a danger to the public, a flight risk, or a foreign national whose identity has not been established. Unless it is satisfied that one or more of the specified grounds is made out, it must order the detainee’s release (subsection 58(1)). By paragraph 245(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227, the assessment whether there is a flight risk includes consideration of the detainee’s voluntary compliance with any previous departure order and, therefore, compliance with subsection 48(1) of the IRPA, which as set out above requires a foreign national to leave Canada immediately as soon as a removal order becomes enforceable.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-4", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 10–12", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "By subsection 247(1) of the Regulations, in assessing whether the identity ground is established, the ID must consider among other things the detainee’s cooperation, including whether the detainee provided or assisted the Department of Citizenship and Immigration in obtaining evidence of identity, or provided his or her date and place of birth and parents’ names. Subsection 16(3) of the Act authorizes an immigration officer to require or obtain from a detainee any evidence that may be used to establish identity.\n\nIf any of the specified grounds of detention are established, the ID is obliged to consider the factors set out in section 248 of the Regulations before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. These factors, which originated in the decision in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at p. 231, 85 F.T.R. 99 at para. 31, were incorporated into the Regulations in 2002.\n\nIf the ID orders release, it may impose any conditions that it considers necessary (IRPA, subsection 58(3)). The person concerned may apply to vary these conditions on the basis that they are no longer necessary to ensure compliance with the Act (Tursunbayev v. Canada (Public Safety and Emergency Preparedness), 2014 FC 5, 21 Imm. L.R. (4th) 302 at para. 31).", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-5", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 13–14", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant came to Canada in 1994, and was granted refugee status in 1996. He asserts that he is Jacob Damiany Lunyamila, a citizen of Rwanda, born there in September 1976. However, his identity has not been established. Among other things, he has no Rwandan identity documents, and the file associated with his refugee claim was destroyed years ago in accordance with standard Immigration and Refugee Board document retention policies.\n\nIn the period from January 1999 to June 2013, Mr. Lunyamila was charged with 94 criminal offences and convicted of 54. It appears that a number of the convictions were connected to alcohol addiction and mental health issues. In July 2012, Mr. Lunyamila was found inadmissible for criminality under paragraph 36(2)(a) of the IRPA. A deportation order was issued against him in August 2012. After a conviction for sexual assault, he was also found inadmissible for serious criminality under paragraph 36(1)(a) of the IRPA. In May 2014, a danger opinion was issued under paragraph 115(2)(a) of the IRPA, declaring that he was a danger to the public and that the risk to the Canadian public outweighed any risk he would face on return to Rwanda and any humanitarian and compassionate considerations. Leave to seek judicial review was denied.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-6", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 15–17", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Lunyamila was arrested and detained under section 55 of the IRPA in June 2013. His detention was initially continued on the grounds that he was both a flight risk and a danger to the public. On the second 30 day review, he was ordered released on conditions. The conditions included a requirement that he live at a specified addiction rehabilitation facility, complete its three month program and abide by its rules and regulations. However, he left the facility after two days and was rearrested. He has remained in detention since September 2013.\n\nUntil January 2016, successive 30 day reviews resulted in orders for continued detention, at first on flight risk and danger grounds, and then on identity grounds as well. However, beginning in January 2016 ID members issued a series of orders for Mr. Lunyamila’s release. Each of these orders was stayed, and two of them – those issued in January and February 2016 – were set aside by the Federal Court on judicial review (2016 FC 289). A further five release orders, including the order made by Member Cook, were the subject of the consolidated applications that led to this appeal.\n\nFollowing the issuance of the danger opinion in May 2014, the CBSA took steps to deport Mr. Lunyamila to Rwanda. Since Mr. Lunyamila did not have a Rwandan passport or other travel document, the Canada Border Services Agency contacted the Rwandan High Commission to ascertain the requirements for him to obtain one. The CBSA was informed that the requirements included providing certified copies of Rwandan identity documents and a statutory declaration affirming a willingness to return to Rwanda.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-7", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 18–21", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Lunyamila had stated that he did not have the required identity documents. Despite ten separate requests by CBSA officers – in June, July, November and December 2014, and February, May, July, August, November and December 2015 – he also refused to sign the required statutory declaration. In response to several of these requests, he stated, in effect, that he would never sign and would never cooperate with his deportation.\n\nIn November 2013 and in 2014, the CBSA received information suggesting that Mr. Lunyamila was actually a person with a different name and birth date who was a citizen of Tanzania. However, the CBSA’s investigation of this information led to a different individual, and the possibility that Mr. Lunyamila was Tanzanian was not pursued further at that time.\n\nThe CBSA recommenced its investigation in February 2015 when it received further information linking Mr. Lunyamila to Tanzania. It explored retaining a private investigator, made inquiries of the Tanzanian police, and arranged for a linguistic analysis, which was conducted in May 2016. The analysis concluded that it was “very likely” that Mr. Lunyamila’s linguistic background was Tanzanian, and “very unlikely” that it was Rwandan. The CBSA also sent fingerprints for analysis by Tanzanian authorities, and arranged an interview of Mr. Lunyamila by Tanzanian consular officials in September 2016.\n\nMr. Lunyamila has cooperated to some degree with this investigation, including by participating in the linguistic analysis, but he has also provided contradictory and nonsensical information in response to inquiries about his connection to Tanzania.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-8", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 22–24", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In September 2016, Member Cook made an order for Mr. Lunyamila’s release from detention, subject to conditions. Although the member was satisfied that all three grounds for continued detention asserted by the Minister – danger, flight risk and identity – were made out, he found that the risks could be sufficiently mitigated by the conditions that he imposed.\n\nIn concluding that Mr. Lunyamila remained “very much a flight risk”, and that it was very unlikely that he would appear voluntarily for removal if released, the member observed that Mr. Lunyamila had done everything in his power to prevent removal to Rwanda, including refusing to sign the declaration required for a Rwandan-issued travel document. Mr. Lunyamila seemed to have figured out, the member stated, that without his cooperation in signing the declaration the CBSA could not remove him.\n\nWith respect to identity, the member stated that “the Minister was making reasonable efforts to establish [Mr. Lunyamila’s] identity.” He noted that the Minister was “undertaking a legitimate investigation […] that [was] capable of uncovering significant evidence,” and stated that it would be improper for him to speculate on what the investigation might uncover. He found the Minister’s efforts to confirm whether Mr. Lunyamila was Tanzanian, while “not perfect,” were reasonable.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-9", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 25–26", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Having concluded that the three grounds for continued detention were established, Member Cook then turned to the factors set out in section 248 of the Regulations. He found that the first factor, the grounds for detention, weighed in favour of continuing detention. Mr. Lunyamila had been detained because he was a danger to the public, he was a flight risk, and his identity could not be established. The member stated that he had given this factor significant weight, since the danger factor alone was justification for a lengthy detention.\n\nThe member analyzed the second and third factors – the length of time in detention and whether the length of time that detention is likely to continue can be ascertained – together. He found that detention for three years amounted to lengthy detention, and that the length of Mr. Lunyamila’s further detention could not reasonably be anticipated. He concluded that these factors favoured release.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-10", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 27–28", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Member Cook noted that the reason for both the lengthy detention and the inability to ascertain the duration of continued detention was the same: the Minister did not have a valid travel document that would permit Mr. Lunyamila’s removal. His case was now “at a stalemate”: the Minister required Mr. Lunyamila’s cooperation to have any prospect of obtaining a Rwandan travel document, but he had refused to cooperate and had stated that he would never cooperate. Although the member acknowledged that Mr. Lunyamila’s cooperation in signing a declaration could lead to a valid travel document, he also noted that cooperation would not guarantee removal because Mr. Lunyamila also lacked the identity documents that Rwanda appeared to require. The Minister was unable to state whether Rwandan authorities would waive this requirement. As for the potential removal to Tanzania, the member found there was no way to reasonably anticipate whether Mr. Lunyamila was actually Tanzanian and how long a removal to Tanzania might take. There was therefore no timeline for the anticipated conclusion of the immigration process: Mr. Lunyamila’s “detention moving forward [was] indefinite” (2016 FC 1199 at paragraph 102).\n\nThe member determined that responsibility for the lengthy detention and uncertainty as to the length of future detention should be apportioned equally to both parties. He assigned a large portion of responsibility for the delay to Mr. Lunyamila. He stated that Mr. Lunyamila’s consistent refusal to cooperate in signing the declaration had stalled his removal at the travel document acquisition stage since 2014, and suggested that the detention might have already ended had he cooperated.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-11", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 29–30", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, the member also found that the Minister must share the responsibility. Despite the “stalemate” and knowledge that Mr. Lunyamila was not prepared to sign the declaration, the Minister had not undertaken alternative measures to remove him. The member acknowledged that there might not in fact be any alternatives. He also acknowledged that the Minister was now focused on Tanzania as a possible alternate destination for removal. However, he was critical of the Minister’s delay in pursuing the possibility of Tanzanian identity when information to this effect first came to light in 2013. The member accordingly found that the factor of delay and lack of diligence was neutral and favored neither continued detention nor release.\n\nThe member then turned to the last factor, alternatives to detention. He stated that any alternatives must “on balance […] have a likelihood of mitigating the grounds for detention that have been established.” He expressed his belief that if Mr. Lunyamila agreed to comply with all of the conditions he set out, “the grounds for detention [could] be mitigated to a degree whereby [his] release pending removal can be manageable” (2016 FC 1199 at paragraph 104).", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-12", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 31–32", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Member Cook set out a total of nine conditions. Condition 1 was that prior to release Mr. Lunyamila sign the declaration requested by Rwanda. Member Cook rejected the suggestion made by another ID member in an earlier review that this condition would amount to “disguised detention” given Mr. Lunyamila’s past refusals to sign. Member Cook reasoned that because Mr. Lunyamila was a criminal and a danger to the public, this condition and Mr. Lunyamila’s deportation were consistent with the immigration objectives, set out in paragraphs 3(1)(h) and (i) of the IRPA, of protecting public health and safety, maintaining the security of Canadian society, and denying criminals access to Canadian society. The condition was also consistent with the obligation imposed by subsection 48(2) of the Act on Mr. Lunyamila to leave Canada immediately, and the obligation on the CBSA to enforce the removal order as soon as possible. The member described Mr. Lunyamila’s non-cooperation as “completely contrary to what is required by Canadian law” (2016 FC 1199 at paragraph 109).\n\nThe other conditions that Member Cook imposed included cooperation with an interview with Tanzanian officials and with any additional CBSA investigation into his identity, acceptance prior to release in a residential drug and alcohol treatment facility and completion of its program, on completion of that program making efforts to enrol in a community-based violence prevention and anger management program and completing the program once enrolled, mandatory reporting to the CBSA, abstention from alcohol, and compliance with any physician-prescribed treatment program.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-13", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 33–36", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In his decision on judicial review, the application judge accepted the parties’ agreement that the appropriate standard of review was reasonableness. He considered the order made by Member Cook after having concluded that he would set aside as unreasonable the other four orders that were the subject of the consolidated applications. He determined that Member Cook’s order was also unreasonable.\n\nThe application judge framed the fundamental issue raised by the applications as “how to resolve the tension between […] an immigration detainee’s refusal to cooperate with a validly issued order for removal from Canada, and […] the length of detention and uncertainty regarding the duration of future detention that result, in whole or in part, from that refusal” (2016 FC 1199 at paragraph 1).\n\nHe expressed his resolution of this tension as follows at paragraph 2: where such a refusal has the result of impeding any steps that may realistically contribute in a meaningful way to effecting the removal of a detainee who has been designated to be a danger to the public, the tension must be resolved in favour of continued detention. The same is true where it has been determined that a detainee is unlikely to appear for removal from Canada.\n\nThe application judge reasoned that if it were otherwise, a detainee who was a danger or a flight risk could by the refusal to cooperate produce or contribute to producing a “stalemate,” resulting in release and the infliction on the public of the associated risk. This would allow detainees to “take the law into [their] own hands” (2016 FC 1199 at paragraph 4), in a manner that Parliament could not have intended.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-14", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 37–38", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In considering one of the other release orders that was the subject of the consolidated applications, the application judge addressed the suggestion made by the ID member who had granted the order that there was a conflict between two lines of cases in the Federal Court – one holding that indefinite detention cannot be treated as a determinative factor in a detention review and the other, that length of detention should be given substantial weight in the balancing process under section 248. He characterized these cases as consistent to the extent that they all properly saw it as necessary to consider and reasonably weigh all of the section 248 factors. But, he stated (at paragraph 85), “where the detainee is a danger to the public, the scheme of the IRPA and the Regulations contemplates that substantial weight should be given to maintaining the detainee in detention.”\n\nThe application judge went on in his discussion of the Federal Court case law to address a further tension identified by the member – that between cases in which the Court had set aside ID release decisions as unreasonable where the detainee’s non-cooperation was the sole cause of the indefinite nature of the detention, and those in which the Court had found unreasonableness in the failure of the member to consider factors other than the detainee’s non-cooperation. He stated (at paragraph 95) that, in his view, “the scheme of the IRPA and the Regulations […] requires resolving a stalemate that has been produced by the detainee’s failure to fully cooperate with the Minister’s removal efforts, in favour of continued detention.”", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-15", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 39–40", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The application judge found Member Cook’s decision unreasonable in several respects. First, there was an inconsistency between Member Cook’s conclusion that Mr. Lunyamila’s detention had become indefinite and the member’s own findings as to the prospects of removing Mr. Lunyamila to Rwanda or Tanzania. The member had also recognized that a large portion of the delay was attributable to Mr. Lunyamila’s refusal to cooperate, and that his non-cooperation had, in addition, contributed significantly to the uncertainty of the timing of removal. It was therefore unreasonable for the member to rely on delay and uncertainty to find that the detention had become indefinite, and then to treat these factors as favouring release: this amounted to giving Mr. Lunyamila credit for factors for which he had been largely responsible.\n\nThe application judge also found unreasonable the member’s decision to give a neutral weighting to the fourth section 248 factor, relating to delay and lack of diligence. He accepted that the Minister could have been more diligent in making efforts to remove Mr. Lunyamila to Rwanda, but observed that Mr. Lunyamila’s non-cooperation had substantially undermined those efforts. This factor should therefore, the application judge stated, have weighed strongly in favour of continued detention. The application judge found further unreasonableness in Member Cook’s determination that the Minister should have done more sooner to pursue the possibility of removal to Tanzania.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-16", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 41–42", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The application judge went on to consider the conditions of release set out by Member Cook. The application judge applauded Member Cook for including the pre-release condition that Mr. Lunyamila sign the declaration required by Rwanda. Permitting Mr. Lunyamila to obtain release while continuing to refuse to cooperate would, the application judge stated (at paragraph 119), be “tantamount to letting him take the law into his own hands, and dictate which laws of Canada he will follow and which ones he will not follow.” However, he agreed with the Minister that the conditions taken together were unreasonable because they did not adequately address Mr. Lunyamila’s violent tendencies and his flight risk. He stated (at paragraph 45) that to be reasonable in the circumstances of Mr. Lunyamila’s case, the conditions would have to “virtually eliminate” the risks that he presented.\n\nHaving concluded that the conditions of release taken as a whole were unreasonable, the application judge set aside Member Cook’s order, along with the other four orders that were subjects of the consolidated applications. Based on Member Cook’s recent familiarity with Mr. Lunyamila’s situation and his understanding of the statutory scheme and many of the relevant legal principles, the application judge remitted the matter back to Member Cook for reconsideration in accordance with his reasons.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-17", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 43–44", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Neither party proposed a question for certification under paragraph 74(d) of the IRPA. Both were of the view that the case was grounded in its particular facts and therefore presented no question of general importance. However, the application judge saw the differences of view in the Federal Court’s case law as giving rise to a question of general importance warranting this Court’s consideration. He therefore sought the parties’ comments on a question that he proposed. The parties maintained their position that the proposed question was not suitable for certification, because the appropriate balancing of the factors in section 248 will vary depending on the circumstances of each case. The application judge nonetheless certified the following question (at paragraph 137): Can a person who has been detained for removal from Canada pursuant to a valid removal order and who has been found either to be a danger to the public or unlikely to appear for his removal from Canada, avoid continued detention by (i) refusing to take steps that may realistically contribute in a meaningful way to effecting such removal, and then (ii) relying on the length of his detention to argue that his release from detention is warranted, assuming there has been no significant change in other factors to be considered in the assessment contemplated by s. 248 of the Immigration and Refugee Protection Regulations?\n\nBy paragraph 74(d) of the IRPA, this Court has jurisdiction to hear an appeal from the judgment of the Federal Court on an application for judicial review with respect to any matter under the Act only if, in rendering judgment, the Federal Court “certifies that a serious question of general importance is involved and states the question.”", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-18", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 45–46", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "As this Court observed in Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 at para. 23, this provision “fits within a larger scheme designed to ensure that a claimant’s right to seek the intervention of the courts is not invoked lightly, and that such intervention, when justified, is timely.” Other elements of the scheme include the requirement in section 72 of the IRPA to obtain leave before pursuing an application for judicial review in the Federal Court.\n\nThis Court recently reiterated in Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para. 36, the criteria for certification. The question must be a serious question that is dispositive of the appeal, transcends the interests of the parties and raises an issue of broad significance or general importance. This means that the question must have been dealt with by the Federal Court and must arise from the case itself rather than merely from the way in which the Federal Court disposed of the application. An issue that need not be decided cannot ground a properly certified question (Lai v. Canada (Public Safety and Emergency Preparedness), 2015 FCA 21, 29 Imm. L.R. (4th) 211 at para. 10). Nor will a question that is in the nature of a reference or whose answer turns on the unique facts of the case be properly certified (Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, 485 N.R. 186 at paras. 15, 35).", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-19", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 47–48", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Despite these requirements, this Court has considered that it is not constrained by the precise language of the certified question, and may reformulate the question to capture the real legal issue presented (Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175, 398 D.L.R. (4th) 685 at para. 5 per Rennie J.A. (dissenting, but not on this point); Ezokola v. Canada (Citizenship and Immigration), 2011 FCA 224, [2011] 3 F.C.R. 417 at paras. 40-44, reversed without comment on the point, Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678). Any reformulated question must, of course, also meet the criteria for a properly certified question.\n\nAt the hearing of the appeal, the Court raised with counsel for both parties concerns about the certified question as framed (reproduced at paragraph 43 above). These included concerns that the question might be in the nature of a “straw person,” in that it would admit of only one reasonable answer. However, the Court also recognized that circumstances like those in this case might give rise to a serious legal issue of general importance, and proposed possible alternative formulations for comment. Counsel were content that the Court try to reformulate the question. The Court decided that it would proceed with the hearing on the merits, leaving the possible reformulation of the certified question to be considered further during the Court’s deliberations.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-20", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 49–50", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "With the benefit of further consideration, I find myself unable to conclude that the question as certified meets the criteria for certification, or that the question can be reformulated so as to address its deficiencies. The fundamental problem as I see it is that the question does not arise from the facts of this case as it developed. The question asks, in essence, whether an immigration detainee can avoid continued detention by failing to cooperate with removal. But Member Cook’s order did not permit Mr. Lunyamila to do so. Rather, Member Cook’s order expressly imposed as a pre-release condition the requirement that Mr. Lunyamila do what he has so far refused to do – sign the declaration requested by Rwanda.\n\nCounsel’s arguments before us were directed to the reasonableness of this order, including all of its conditions. Counsel for Mr. Lunyamila argued that the order as a whole struck a careful and factually supported balance, that the application judge showed insufficient deference in finding it unreasonable, and that it should not have been set aside. Counsel for the Minister submitted that the application judge was right to find the order unreasonable, but for reasons unrelated to the pre-release condition – a condition which, as noted above, the application judge said he applauded. In sum, therefore, neither party took issue with the pre-release condition of cooperation.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-21", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 51–52", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In light of my appreciation of the issue raised by the application judge’s formulation and counsel’s comments, I considered proposing that the certified question be reformulated along the following lines: In a review under section 57 of the Immigration and Refugee Protection Act of the detention of a person against whom a removal order has been made, is the Immigration Division of the Immigration and Refugee Board entitled to rely on the factors set out in paragraphs 248(b) and (c) of the Immigration and Refugee Protection Regulations (“the length of time in detention” and “whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time”) as factors favouring release where the length of time in detention and the length of time that detention is likely to continue are attributable in whole or in part to the failure of the detainee to cooperate in his or her removal from Canada?\n\nHowever, given the terms of Member Cook’s order and the positions of the parties, it would not be necessary to decide this question either in order to decide the appeal. The reformulation could also be regarded as deficient on the basis that it is a question whose answer would turn on the unique facts of each case – for example, on the nature and extent of the non-cooperation – or that it would transform this appeal into a reference. I therefore came to the view that reformulation would not be appropriate.", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-305100-22", - "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 53–54", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", - "part": "Federal Court of Appeal", - "division": "", - "text": "For these reasons, I conclude that the certified question is not sufficient to give this Court jurisdiction to decide the appeal, which must therefore be dismissed. I do not see “special reasons” within the meaning of rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, that would warrant an award of costs.\n\nI would dismiss the appeal without costs. “J.B. Laskin” J.A. “I agree. David Stratas J.A.” “I agree. J. Woods J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2018-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" - }, - { - "id": "fca-483607-1", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 1–3", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Enforcement of removal orders by the Canada Border Services Agency (CBSA) is an everyday occurrence in this country. In most cases, removal proceeds in an expeditious manner. But sometimes it does not. The person to be removed may not report. The receiving country may delay or refuse to issue the necessary travel documents. Sometimes the political situation in the receiving country is unstable, or removal carries an unacceptable risk of human rights violations. Significant delays can result, placing the person subject to removal in an administrative and legal limbo. The person has no right to remain in Canada but Canada has no ability to effect the removal.\n\nFor certain foreign nationals, there may also be reasonable grounds to believe that they pose a danger to the public or are a flight risk and may not report to the CBSA for removal. In such cases, the Immigration Division (ID) of the Immigration and Refugee Board of Canada may order their arrest and detention pending removal (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 55 (IRPA)).\n\nOver the course of a year, over 5,000 persons, inadmissible to Canada for various reasons, are held in immigration detention, either in immigration holding centres operated by the CBSA or in provincial correctional institutions. The vast majority of detentions are of short or intermittent duration—far less than 100 days. But some detainees are held for much longer. The appellant, Alvin John Brown, is an example of the latter.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-2", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 4–6", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Federal Court has described the facts surrounding Mr. Brown’s stay in Canada and eventual removal (2017 FC 710, per Fothergill J. at paras. 9-18). He was found to be inadmissible to Canada on the basis of a series of criminal convictions. At the end of his term of imprisonment he was ordered detained pending removal because he was both a danger to the public and a flight risk. Notwithstanding the increasing length of Mr. Brown’s detention, at each of his subsequent detention reviews the ID ordered that he continue to be detained.\n\nMr. Brown was held in provincial correctional institutions in Ontario from September 2011 until his deportation to Jamaica five years later in September 2016. Despite repeated and continuous efforts, the CBSA was unable to obtain a travel document for Mr. Brown from the Jamaican High Commission during this time.\n\nIn the Federal Court, Mr. Brown, together with the End Immigration Detention Network, a third party with public interest standing, challenged the constitutionality of the immigration detention regime established under sections 57 and 58 of the IRPA and sections 244 to 248 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (Regulations). There, they contended that the regime violates sections 7, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-3", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 7–10", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Although Mr. Brown had been removed from Canada by the time of the hearing, no one asserted the objection of mootness. Nevertheless, the Federal Court considered mootness and, after reviewing the jurisprudence, exercised its discretion to hear the application in the public interest. No one raised mootness in this Court and there is no reason on this record to second-guess the Federal Court’s exercise of discretion.\n\nThe Federal Court dismissed the appellants’ Charter challenge. They now appeal to this Court on the basis of the following certified question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nOnce a question is certified, all issues that bear upon the disposition of the appeal are at large (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at para. 12 (Baker); Mahjoub v. Canada (Minister of Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at para. 50; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229 at para. 37).\n\nIn this Court, the appellants renew their constitutional challenge. They are supported by two interveners: the Canadian Association of Refugee Lawyers and the Canadian Centre for International Justice. The interveners advocate for specific procedural protections for immigration detainees including mandatory release dates, early disclosure by the Minister of Public Safety of any evidence relevant to a detainee’s case, and the imposition of an onus on the Minister of Public Safety to establish, with strong supporting reasons, that continued detention is warranted.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-4", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 11–13", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Casting a shadow on the appellants’ constitutional challenge is the Supreme Court of Canada decision, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (Charkaoui). There, the Supreme Court prescribed the process and protections required to ensure that lengthy and indeterminate detention is consistent with detainees’ rights under sections 7 and 12 of the Charter.\n\nThe Supreme Court’s conclusions in Charkaoui are set forth in paragraph 96: The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual […]\n\nElsewhere, at paragraph 105 of Charkaoui, the Supreme Court recognized that immigration detention may have to be or may practically end up being indeterminate: “[i]t is thus clear that while the IRPA in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions.” It rejected the detainee’s argument that after 5 years his detention had become indefinite and, thus, unconstitutional for that reason.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-5", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 14–16", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Supreme Court held that extended periods of detention under the IRPA do not violate the Charter if they are accompanied by regular review of the reasons for detention, the length of detention, the reasons for the delay in removal, the anticipated future length of detention and the availability of alternatives to detention such as release on conditions (at paras. 110-117).\n\nBut the Supreme Court also foresaw that cases could arise where a particular detention was not Charter compliant. In these circumstances, the Court concluded that, although prolonged detention under the regime established by the IRPA was constitutional, “[…] this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter” (at para. 123).\n\nCharkaoui stands in the way of the appellants’ argument that lengthy or indeterminate detention is per se unconstitutional. In response, the appellants launch a frontal attack on Charkaoui.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-6", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 17–19", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellants contend that where removal is no longer reasonably foreseeable, release is the only constitutionally compliant outcome, and the failure of the IRPA to expressly require release “in these circumstances” renders the scheme constitutionally deficient. Analogizing to the principles expressed in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (Jordan) the appellants contend that their section 7 and 9 Charter rights can only be protected by judicially mandated limits on the length of detention or, alternatively, that the scheme should be declared unconstitutional under section 52. They say that Charkaoui must be read in light of the principles expressed in Jordan.\n\nThe appellants advance a second attack on the detention scheme. The appellants say the fact that the legislation grants a discretionary power that may be exercised in an unconstitutional manner renders the enabling provision unconstitutional. The appellants contend that for the detention provisions of the IRPA to pass constitutional muster, it must be impossible for the ID to order detention when there is no reasonable prospect of removal.\n\nThe appellants and interveners also argue that the detention scheme offends section 7 of the Charter because it places an onus on detainees to justify why they should be released. As well, the appellants and interveners challenge the constitutionality of detention orders under section 12 of the Charter because the ID has no control over the location and conditions of detention. They also raise a procedural fairness challenge based on the limited disclosure by the Minister during detention hearings.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-7", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 20–21", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The arguments challenging the detention scheme fail and so I would dismiss the appeal. However, as will be seen, ID members conducting detention reviews and judges sitting in judicial review, must consider Charter and administrative law standards. Although the appellants’ challenge to the validity of the sections fails, many of their arguments are vindicated by what is said in these reasons concerning what judges conducting detention reviews must consider.\n\nAll Charter analysis begins with an informed understanding of the legislation in question. The legislation must first be interpreted according to the accepted principles of statutory interpretation (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21). And in examining the effects of the legislation, as is necessary when applying the Charter, we must understand how it operates against the backdrop of accepted common law and administrative law principles (see, e.g., Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 125 D.L.R. (4th) 385 at 1049; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 at paras. 43-45; R. v. Levkovic, 2013 SCC 25, [2013] 2 S.C.R. 204 at para. 78; Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016) at 315).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-8", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 22–24", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "When the detention provisions are read in light of their text, context and purpose, there is no infringement of sections 7, 9 or 12 of the Charter. The detention scheme possesses the same hallmarks of constitutionality that allowed the Supreme Court in Charkaoui to find that extended periods of detention under the IRPA’s security certificate detention scheme did not contravene sections 7 and 12 of the Charter. These hallmarks include robust and timely review of the continued need for detention, the ability to “consider terms and conditions that would neutralize the danger” and the “fashion[ing of] conditions that would neutralize the risk of danger upon release” together with power to order release if satisfied that the need for detention no longer exists (Charkaoui at paras. 117, 119-123).\n\nCharkaoui is also clear guidance from the Supreme Court, along with many other leading authorities, that the recourse against an improper exercise of discretion resulting in the over-holding of a detainee is an application to quash that exercise of discretion under administrative law principles and section 24 of the Charter, not to strike down the section under section 52 of the Constitution Act, 1982.\n\nTwo opening observations are in order.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-9", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 25–26", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "First, this appeal involves nothing more than applying settled principles to specific legislation and a specific evidentiary record. There is no real dispute between the parties on the settled principles. Thus, I will not elaborate on either the general content of section 7 (see, e.g., Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, 69 Imm. L.R. (4th) 297 at paras. 76-90; Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, 438 D.L.R. (4th) 148 at paras. 78-87) or the two-stage process to be followed when applying section 7 (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165 at para. 68 and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at para. 58). It is sufficient to say that Mr. Brown’s Charter rights are engaged, and that as a foreign national in Canada he has standing to challenge this legislative scheme using sections 7, 9 and 12 of the Charter (Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422 at 201-202; see also R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 at para. 23 (Appulonappa)). Nor is there any dispute over the scope and content of sections 7, 9 and 12.\n\nThe second observation relates to the Supreme Court decision in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, 433 D.L.R. (4th) 381 (Chhina), rendered while this appeal was under reserve and on which the parties made additional written submissions. A comment is required on the relevance of Chhina to the issues in this appeal.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-10", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 27–29", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The constitutionality of the immigration detention scheme was not in issue before the Supreme Court in Chhina. The focus of that case was the availability of habeas corpus as an alternative remedy to judicial review to determine the legality of a detention order. The case did not require a full interpretation of the IRPA detention provisions and none was done. The questions raised here have not been answered. Nor did the Supreme Court in Chhina reverse or cast any doubt on Charkaoui, which directly applies to the question before this Court.\n\nUnder sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, a violation of human or international rights, serious criminality or organized criminality. Unless the removal order is stayed by the Federal Court, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (IRPA, s. 48(2)).\n\nUnder subsection 55(1), the ID may issue a warrant for the arrest and detention of a foreign national where there are reasonable grounds to believe they are inadmissible and pose a danger to the public or are a flight risk. No warrant is required for foreign nationals that are not protected persons, as defined under subsection 95(2) of the IRPA, and are a danger to the public or a flight risk, or whose identity cannot be confirmed (IRPA, s. 55(2)).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-11", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 30", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Within 48 hours of arrest, or otherwise without delay, the ID is required to review the reasons for detention advanced by the Minister responsible for the CBSA, the Minister of Public Safety (IRPA, s. 57(1)). If the ID concludes that a detention order is appropriate, a second review must take place within the following seven days, and then again, if necessary, within every subsequent 30-day period (IRPA, s. 57(2)).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-12", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 31", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Subsection 58(1) stipulates that grounds for detention may exist in five circumstances: Release — Immigration Division 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established. Mise en liberté par la Section de l’immigration 58.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-13", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 31–32", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) La section prononce la mise en liberté du résident permanent ou de l’étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants : a) le résident permanent ou l’étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l’étranger se soustraira vraisemblablement au contrôle, à l’enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d’une mesure de renvoi en vertu du paragraphe 44(2); c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l’étranger est interdit de territoire pour raison de sécurité, pour atteinte aux droits humains ou internationaux ou pour grande criminalité, criminalité ou criminalité organisée; d) dans le cas où le ministre estime que l’identité de l’étranger — autre qu’un étranger désigné qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause — n’a pas été prouvée mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l’identité de l’étranger; e) le ministre estime que l’identité de l’étranger qui est un étranger désigné et qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause n’a pas été prouvée.\n\nThe language of Parliament in subsection 58(1) is clear and the context and purpose of section 58 does not change the plain meaning of that language. Under subsection 58(1), detention must cease unless the ID is satisfied, on a balance of probabilities, that a ground for detention exists. If a ground for detention is not established, the inquiry is at an end. Release is the default.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-14", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 33", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "But detention does not simply follow on proof of a ground for detention. Section 248 of the Regulations makes this clear. Before a detention order is made, the ID must proceed to the second stage and examine whether detention is warranted based on certain prescribed factors (see also Sasha Baglay & Martin Jones, Refugee Law, 2nd ed. (Toronto, ON: Irwin Law, 2017) at 389). The prescribed factors are as follows: Other factors 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; (e) the existence of alternatives to detention; and (f) the best interests of a directly affected child who is under 18 years of age. Autres critères 248. S’il est constaté qu’il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu’une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l’existence d’éléments permettant l’évaluation de la durée probable de la détention et, dans l’affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère, de l’Agence des services frontaliers du Canada ou de l’intéressé; e) l’existence de solutions de rechange à la détention; f) l’intérêt supérieur de tout enfant de moins de dix-huit ans directement touché.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-15", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 34–36", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "These factors were first articulated by Rothstein J., then of the Federal Court, in Sahin v. Canada (Minister of Citizenship & Immigration) (1994), [1995] 1 F.C. 214, 5 Imm. L.R. (3d) 159 (Fed. T.D.) at 231 (Sahin). They were subsequently given legislative expression in section 248 of the Regulations, which came into force in 2002 (S.O.R./2002-227).\n\nIn considering alternatives to detention, the ID may impose any conditions on the detainee that it considers necessary to mitigate the risks (IRPA, s. 58(3)). Either the Minister or the detainee may subsequently apply to vary these conditions on the basis that they are no longer necessary to ensure compliance.\n\nIf the ID orders detention, the detainee is remitted to the custody of the CBSA. The CBSA may decide to place the detainee in an Immigration Holding Centre (IHC), or transfer the detainee to provincial authorities to be housed in a provincial correctional institution. The ID has no control over the privileges a detainee has access to while detained. If a detainee is dissatisfied with the conditions of their detention, they can bring a judicial review application in the Federal Court, if housed in a federal institution, or, if in a provincial institution, in the provincial superior court using legislation such as the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-16", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 37–38", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is clear from this review that the immigration detention scheme has all of the protections mandated by Charkaoui to ensure that extended periods of detention do not violate sections 7, 9 and 12 of the Charter. Detention reviews are timely and frequent: subsection 57(2) of the IRPA requires that detention be reviewed within 48 hours of arrest, within seven days after that, and every 30 days for the detention’s duration. The onus is on the Minister to establish both a ground of detention and that detention is warranted based on mandatory, case-specific factors. Detention may only be ordered where there are no appropriate alternatives, and, in considering alternatives to detention, subsection 58(3) authorizes the ID to impose any conditions that it considers necessary to neutralize the risk associated with release. The legality of the detention is subject to judicial scrutiny in the Federal Court.\n\nThe Supreme Court has recently suggested in obiter in Chhina (at para. 60) that the factors under section 248 of the Regulation may be deficient or vague because they do not expressly require release if removal is not foreseeable. This obiter statement, made in passing, does not repeal the central holding of the Supreme Court in Charkaoui, namely that an ongoing detention does not automatically run afoul of the Charter. In Charkaoui, the section 248 factors formed the heart of the issue before the Court. It would be startling if some idle words in Chhina displaced the detailed, well-considered and necessary holding in Charkaoui, almost as if by a side-wind.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-17", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 39", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nevertheless, the appellants say that the legislation does not go far enough. They note that the IRPA is constitutionally flawed in that does not expressly say that there can be no detention in the absence of a reasonably foreseeable prospect of removal and does not impose a maximum period of time during which a person can be detained. For the reasons that follow, these arguments fail.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-18", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 40", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "A statutory power, such as the power to detain in this case, can only be used for the purposes for which it was intended. This principle of administrative law stems from the requirement that all government action must be authorized by a grant of legal authority. Whether express or implied, the text of a statute, seen in light of its context and purpose, prescribes the limits of the legal authority of a decision-maker exercising discretionary power (Brown and Evans, Judicial Review of Administrative Action in Canada, (Toronto: Thomson Reuters, 2019) at § 15:2241; Entertainment Software Assoc. v. Society Composers, 2020 FCA 100 at para. 88 (Entertainment Software Assoc.) and cases cited therein). The classic statement of this principle is found in Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (Roncarelli) where Rand J. said (at 140): In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.[...][T]here is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-19", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 41–42", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Citing Roncarelli, the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 observed (at para. 108) (Vavilov): […] while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply \"with the rationale and purview of the statutory scheme under which it is adopted\": Catalyst […]. Likewise, a decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon Equipment Ltd., 2010 FCA 193, [2011] 4 F.C.R. 203 (F.C.A.), at paras. 38-40.\n\nThe IRPA has many purposes and objectives, including ensuring the safety and security of Canadians and the promotion of international justice by denying safe harbour for criminals or those who pose a security risk (IRPA, paras. 3(1)(h), (i)). The power to detain, as set out in subsection 58(1), is one of the mechanisms by which those purposes are realized. That detention can only be ordered where it is linked, on the evidence, to one of the enumerated grounds listed in subsection 58(1) is an application of this principle. The power to detain must always remain tethered to the IRPA’s purposes and objectives.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-20", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 43–45", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The implicit requirement that the power to detain can only be exercised where it facilitates the purposes of the IRPA has guided the IRPA’s interpretation for decades. In Sahin at 226-229, Rothstein J. drew on R. v. Governor of Durham Prison, Ex parte Singh, [1984] 1 All E.R. 983, [1984] 1 W.L.R. 704 (Q.B.). There, in considering the immigration detention power provided by the Immigration Act, 1971, Woolf J. (as he then was) concluded that the Act was subject to two implicit limitations: the power to detain was limited to the purposes of removal and the responsible minister must move “with all reasonable expedition” to ensure removal.\n\nSection 58 of the IRPA authorizes detention for several purposes, including pending determination of identity, pending a determination of admissibility or on the grounds of public safety. The power of detention will be exercised principally, but not exclusively, pending removal. Where detention is for the purposes of removal, and there is no longer a possibility of removal, detention on this ground no longer facilitates the machinery of immigration control and the power of detention cannot be exercised. Detention must always be tethered, on the evidence, to an enumerated statutory purpose. To conclude, the IRPA is not constitutionally deficient because it does not state expressly that which the law already requires.\n\nThis conclusion is not altered by the Charter.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-21", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 46–47", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Interwoven with the modern approach to the interpretation of legislation is the presumption that Parliament intends to enact legislation in conformity with the Charter. If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416 at 1078 (Slaight); R. v. Swain, [1991] 1 S.C.R. 933, 125 N.R. 1 at 1010; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 93 D.L.R. (4th) 36 at 660; R. v. Lucas, [1998] 1 S.C.R. 439, 157 D.L.R. (4th) 423 at para. 66).\n\nThe presumption of compliance is that “the legislature intends to make legislation that complies with the constitution, and to the extent possible legislation is therefore interpreted to achieve that result” [emphasis in original] (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: Lexis Nexis, 2014) 523, at § 16.3 (Sullivan on the Construction of Statutes)). This principle is engrained in Supreme Court of Canada jurisprudence dating back over half a century (see McKay et al. v. The Queen, [1965] S.C.R. 798, 53 D.L.R. (2d) 532 at 803-804). In R. v. Sharpe, 2001 SCC 2, [2001] S.C.R. 45 at para. 33, McLachlin C.J.C. confirmed the presumption’s application in situations where Charter rights are implicated. More recently, the Supreme Court has said that the detention provisions of the IRPA, the very legislation in question here, ought to be interpreted “harmoniously with the Charter values that shape the contours of its application” (Chhina at para. 128, Abella J., dissenting but not on this point).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-22", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 48–51", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nevertheless, the appellants and interveners contend that the Supreme Court has changed the law in the relatively recent, post-Charkaoui decision of Jordan. They say that the Supreme Court has now recognized that in some situations maximum time limits must be imposed to ensure Charter compliance. Mr. Brown argues the appropriate maximum limit in detention is six months, while the End Immigration Detention Network argues that it is three months; after expiry of those limits, they say the detention is arbitrary and violates sections 7 and 9.\n\nJordan does not alter the constitutional holdings in Charkaoui. It is not authority for the proposition that sections 7 and 9 of the Charter require fixed limits on detention.\n\nIn Jordan, the Supreme Court established ceilings beyond which pre-trial delay becomes presumptively unreasonable under section 11(b) of the Charter. Beyond the ceiling, the burden shifts to the Crown to rebut the presumption of unreasonable delay based on exceptional circumstances. The ceiling was set at 18 months for offences tried in provincial court, and 30 months for those tried in the superior court or those tried in provincial court after a preliminary inquiry (Jordan at para. 105).\n\nThe objective of the guidelines established in Jordan was to protect the constitutional right to trial within a reasonable time under section 11(b) of the Charter. But the considerations which prompted the Court to establish those guidelines contrast markedly with those surrounding immigration detention. As I will explain, the differences between the criminal justice system and that of immigration detention could not be greater.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-23", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 52–53", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Together, the federal and provincial governments have complete control over almost every aspect of the criminal justice system and the variables that affect delay. The federal government has responsibility for substantive criminal law and criminal procedure via the Criminal Code, R.S.C. 1985, c. C-46. The construction of courtrooms, appointment of judges, staffing of provincial courts and prosecutors, and the resources available to police to organize disclosure are all within the legislative competence of either the federal or provincial governments.\n\nIn contrast, while removal is one of the objectives of detention, Canada does not have complete control over its realization. Removal may be frustrated by political turmoil in the receiving state. Removal may be delayed by a dearth of evidence as to identity (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Rooney, 2016 FC 1097, [2017] 2 F.C.R. 375). Travel documents must be obtained from a great number and diversity of countries, some of which may not be in a hurry to have a particular national returned. Each will have a different view of what constitutes a timely administrative response to requests for travel documents. Removal is dependent on the cooperation of the receiving state, which, for a myriad of reasons, may be reluctant to or incapable of issuing a travel document. Mr. Brown’s situation is a good example. In spite of various, often unanswered, entreaties on the part of the CBSA, it took the Jamaican government nearly five years to confirm Mr. Brown’s nationality and issue a travel document. With the document finally in hand, the CBSA deported Mr. Brown the next day.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-24", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 54–56", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellants rely on international law and the law of foreign jurisdictions to argue that a textual reading of the IRPA pertaining to immigration detention is inconsistent with basic international norms.\n\nThere is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 53 (Hape)). “Where possible” is a key qualifier (Entertainment Software Assoc. at paras. 76-92). Absent contrary indication, legislative provisions are also presumed to observe “the values and principles of customary and conventional international law” (Hape at para. 53; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704 at para. 47; Sullivan on the Construction of Statutes at §18.6; see also de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 at paras. 82–87 and Entertainment Software Assoc. at paras. 89-90).\n\nTherefore, both Canada’s international treaty obligations and the principles underlying international law can play a role in the interpretation of Canadian laws. This is reinforced by paragraph 3(3)(f) of the IRPA, which directs that the Act “is to be construed and applied in a manner that […] complies with international human rights instruments to which Canada is signatory.”", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-25", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 57–58", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "There is, however, an important counterweight to these principles—the doctrine of Parliamentary supremacy. An unambiguous provision must be given effect even if it is contrary to Canada’s international obligations or international law (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 at para. 35; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269 at para. 50; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, 74 D.L.R. (4th) 449 at 1371; Gitxaala Nation v. Canada, 2015 FCA 73 at para. 16; Hape at para. 54; and see generally the comprehensive discussion in Entertainment Software Assoc. at paras. 76-92).\n\nThere is no doubt as to the design, operation or effect of the detention provisions. The appellants have not identified ambiguities or duelling interpretations that would open the door to an interpretation most consistent with international law. Reduced to its essence, the appellants’ argument is simply that in some jurisdictions immigration detention is dealt with somewhat differently. Leaving section 1 of the Charter aside, in light of Parliament’s clear legislative choice as to the design of the immigration detention scheme, the practices or legislative frameworks of other jurisdictions are irrelevant.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-26", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 59–60", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "In any event, as the Federal Court concluded, the Canadian immigration detention scheme is consistent with that of the United Kingdom. The UK legislation does not mandate fixed periods of maximum detention but, as in section 248 of the Regulations, articulates a number of discretionary considerations relevant to whether a detention order should issue. Turning to the European Union, while the EU Return Directive does set a maximum period of detention of 18 months, member states are not required to comply with this limit where third country nationals are denied entry at a country’s border or where, like Mr. Brown, they are being returned following inadmissibility rulings arising from criminal convictions. The Ontario Court of Appeal, in hearing Mr. Brown’s habeas corpus application, did not find his arguments grounded in international law to be persuasive (Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124 at paras. 37-38).\n\nThe immigration detention regime is constitutionally sound and does not infringe sections 7 or 9 of the Charter. No principle of statutory interpretation requires that, to ensure constitutionality, the legislature must state that which the law already requires. To require an express statement that the power of detention can only be exercised where there is a real possibility of removal would be to read in a redundancy. The statute books of our land would read very differently if, to ensure constitutionality, they had to codify all the applicable common law and constitutional law principles that frame the interpretation and understanding of legislation.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-27", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 61–63", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellants advance an alternate argument. They contend that the question to be answered is not whether the legislation can be applied in a constitutionally sound manner, but rather whether the ID is empowered by the legislation to violate the detainees’ Charter rights. Put otherwise, because the discretion in section 248 is not expressly subordinated to the obligation to release in the face of an unreasonably lengthy detention or a removal that is not reasonably foreseeable, the scheme is constitutionally defective. The appellants focus on the scope of the word “consider” and the fact that the duration of detention is but one factor to be considered in section 248 of the Regulations. They say that a constitutionally compliant statute is one under which unconstitutional over-holding is impossible.\n\nThis argument is inconsistent with established methodology of Charter analysis. As I will explain, the appellants’ argument invites this Court to do precisely what the Supreme Court has instructed us not to do since the inception of the Charter.\n\nThe first question a court must ask in any Charter challenge is whether the infringement arises from the provisions of the legislation or whether it arises from a discretion granted by the legislation.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-28", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 64", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "A statutory provision cannot be interpreted in a manner that grants discretion to infringe the Charter unless such infringement is mandated by Parliament. The comments of Lamer J. (as he then was) in Slaight are apposite (at 1078): […] As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. [Emphasis added]", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-29", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 65–66", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "When a party attacks the validity of a legislative provision, the relevant inquiry is whether the law being attacked produces an unconstitutional effect. Where unconstitutional acts are committed under constitutional laws, the Supreme Court has noted that “[t]he acts of government agents acting under such regimes are not the necessary result or ‘effect’ of the law, but of the government agent’s applying a discretion conferred by the law in an unconstitutional manner. Thus, section 52(1) is not applicable. The appropriate remedy lies under s. 24(1)” (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 59-60 (Ferguson); see also Schachter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1 at 719-720, Lamer C.J.C.).\n\nLittle Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 (Little Sisters) is also instructive. In that case, the appellants argued that the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and Customs Tariff, R.S.C. 1985, c. 41 (3rd Supp.) infringed their section 2(b) and section 15 Charter rights. The argument focused in part on the unconstitutionality of the prohibition against obscenity, set out in the Criminal Code, R.S.C. 1985, c. C-46 when applied by customs officers, with Little Sisters arguing that a regulatory structure open to maladministration was unconstitutionally under-protective of their constitutional rights (at para. 71).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-30", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 67–70", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Supreme Court held that there is no constitutional rule that requires Parliament to address, affirmatively, the customs treatment of constitutionally protected expressive material by legislation rather than by way of regulation, ministerial directive or even departmental practice. Parliament is entitled to proceed on the basis that its enactments “will be applied constitutionally” by the public service (at para. 71).\n\nThe Supreme Court found that the source of the problem lay with customs officials who had been acting outside of the constitutionally sound statutory framework by specifically targeting homosexual erotica in violation of section 15(1) of the Charter. Binnie J., writing for the majority of the Court, stated “[...] there is nothing on the face of the Customs legislation, or in its necessary effects, which contemplates or encourages differential treatment based on sexual orientation” (at para. 125).\n\nAs in the case before us, the appellants’ complaint in Little Sisters was about what Parliament did not enact, rather than what it did enact. For this reason, Binnie J. distinguished cases like R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 where the legislative scheme itself was held to be unworkable (Little Sisters at paras. 72, 128).\n\nThe appellants rely on Appulonappa for the proposition that the legislation at issue is defective because it does not preclude the possibility of unconstitutional over-holding.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-31", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 71–74", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Appulonappa the Supreme Court found that section 117 of the IRPA, which criminalized the smuggling of aliens into Canada, was unconstitutionally overbroad and contrary to section 7 insofar as it captured humanitarian efforts, mutual aid amongst asylum-seekers or individuals who assisted close family members. The Court found that subsection 117(4), which required that the Attorney General must consent for a prosecution to proceed under section 117, could not save the provision because it was not impossible that the Attorney General could consent to prosecution in a case that was overbroad of the legislative purpose (at paras. 74-77).\n\nAppulonappa does not stand for the proposition that constitutional compliance depends on the “impossibility” of an unconstitutional exercise of discretion.\n\nIn that case, the residual prosecutorial discretion of the Attorney General was advanced as an alternate argument to cure the admittedly overbroad and constitutionally infringing provision of the Criminal Code. Put otherwise, it was argued that the overbreadth of section 117 was remedied by the Attorney General’s discretion to choose not to prosecute. The Supreme Court rejected that argument. The standard of “impossibility” was premised on a finding that the charging provisions were, in and of themselves, infringing.\n\nHere, in contrast, the scheme is constitutional. Where there are regular detention reviews that give full and fair consideration to the non-exhaustive considerations in section 248, prolonged detention is constitutional. Rather than being a source of unconstitutionality, the existence of discretion ensures that the Charter rights of detainees receive full consideration in light of their particular circumstances.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-32", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 75–77", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, 433 D.L.R. (4th) 157 (Civil Liberties) the Ontario Court of Appeal considered a constitutional challenge to sections 31-37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. The Court held that the provisions, which confer discretion on the administrative head of a federal penitentiary to order administrative segregation of inmates based on a number of factors, infringed section 12 of the Charter. The Court, in analyzing the scheme, considered whether the scheme itself was unconstitutional or whether it simply permitted unconstitutional maladministration.\n\nBefore the Court of Appeal, the Attorney General argued that the Act, properly interpreted, had safeguards that rendered it capable of constitutional compliance (Civil Liberties at para. 102). The applications judge had accepted this argument, and concluded that the legislative scheme, even though it permits prolonged segregation, would not “inevitably result in the treatment of an inmate which is grossly disproportionate to the safety risk the inmate presents” [emphasis added] (Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491, 140 O.R. (3d) 342 at para. 269).\n\nThe Ontario Court of Appeal disagreed. It held, in part because the discretion granted under the Act only required the institutional head to “consider” the inmates’ health prior to making segregation decisions, that it was “not impossible” the legislation’s application could result in grossly disproportionate treatment (at paras. 105, 110, 113). Based on this and other factors, the Court found the legislation to infringe section 12.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-33", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 78–79", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "For the reasons I have given, I do not agree that the litmus test for constitutionality is that it must be impossible to exercise discretion in an unconstitutional manner. The word “consider”, if one follows the reasoning of the Ontario Court of Appeal, is not to be read in a manner that is consistent with the Charter. However, this is the opposite of what the Supreme Court, from Slaight, through to Ferguson and Little Sisters and beyond, has instructed. A statutory grant of discretionary power should be read to require that it be exercised in a constitutional way, unless the statutory power itself impliedly or expressly authorizes infringement of the Charter, in which case the statutory grant itself may be subject to Charter challenge (Slaight at 1078). In this case, the statutory grant of discretionary power uses the word “consider”, an open-ended grant of discretion. Far from precluding the decision maker from having regard to Charter standards when assessing the appropriateness of detention, it requires it.\n\nThe guidance arising from Slaight, Ferguson and Little Sisters directly applies to and disposes of the appellants’ argument that the legislation is defective because it does not expressly prohibit detention when removal is not reasonably foreseeable. There is no proposition of law that legislation, to pass constitutional muster, must exclude all possibility of unconstitutional exercises of discretion. If that were the case, the Supreme Court would have been mistaken in Charkaoui when it determined that the remedy for an immigration detention beyond a permissible length lay in section 24(1) (at para. 123).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-34", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 80–81", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Charter does not require that the possibility of maladministration pursuant to a statutory grant of discretion be eradicated from statutes. Rather, the Charter requires that discretion be guided by objective criteria that are capable of identification, articulation and judicial supervision. This is readily demonstrated by three analogous situations: section 24(2) of the Charter, pre-trial detention or bail provisions, and the provisions of the Criminal Code dealing with release pending appeal of a conviction. A comparative review of the broad discretion granted under these provisions demonstrates that the discretion to detain under section 58 of the IRPA and section 248 of the Regulations is constitutionally compliant.\n\nIn Mills v. The Queen, [1986] 1 S.C.R. 863, 29 D.L.R. (4th) 161 (Mills), McIntyre J. commented on section 24(2) of the Charter and the authority of a court to grant any remedy which it considers “appropriate and just in the circumstances”, and concluded that it was “difficult to imagine language which could give the court a wider and less fettered discretion” (at 965). Nonetheless, section 24(2) was “an acceptable statutory standard to overcome vagueness” (R. v. Farinacci (1993), 109 D.L.R. (4th) 97, 86 C.C.C. (3d) 32 (Ont. C.A.) at 115 (Farinacci)).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-35", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 82–83", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The circumstance of bail pending appeal also illustrates the point that broad statutory language will not offend constitutional standards where it is capable of judicial definition. In Farinacci, the Ontario Court of Appeal considered the constitutionality of subsection 679(3) of the Criminal Code, which leaves to appellate courts to determine whether detention pending appeal is “necessary in the public interest.” Citing Mills, Arbour J.A. concluded that the discretion to balance the public interest and public safety was not vague or unfettered (at paras. 114-115).\n\nThe discretion conferred by the Criminal Code provisions in respect of initial show-cause hearings and bail review hearings also serves as a useful comparator against which the discretion granted under section 248 of the Regulations can be tested. These provisions confer a broader and vaguer discretion on the judge or justice of the peace at the initial show cause hearing than the detention provisions of the IRPA. They too have survived constitutional challenge.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-36", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 84–85", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "As under the IRPA, under subsection 515(1) of the Criminal Code release is the default outcome at the initial bail hearing (R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105 at para. 1). Mirroring the language and structure of section 58 of the IRPA and section 248 of the Regulations, subsection 515(1) states that the accused shall be released unless the prosecutor can show cause why the accused should be detained or released under conditions. Some of the grounds under which a justice may deny bail mirror the grounds for detention under the IRPA scheme. In order for a justice of the peace or a judge to order pre-trial detention, the Crown must establish that there is a flight risk or that detention is necessary for the protection or safety of the public (Criminal Code, s. 515(10)(a) and (b)).\n\nOther grounds bear no resemblance. In contrast to the immigration detention regime, paragraph 515(10)(c) of the Criminal Code grants a right to detain if the judge is of the view that “detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances” surrounding the offence. The exercise of that discretion is informed by a number of statutory criteria, but no instruction is given as to how these criteria are to be weighed or how they relate to the grounds of detention (see, e.g., R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (St. Cloud)). These are the same criticisms that the appellants make of the immigration detention regime.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-37", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 86–87", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "In respect of certain offences, there is a reverse onus at the initial show cause hearing on the accused to demonstrate that they should be released. The reversal of onus is constitutional (R. v. Morales, [1992] 3 S.C.R. 711, 144 N.R. 176). In contrast, there are no reverse onus provisions under the IRPA and the onus is always on the Minister to justify detention at each and every detention review.\n\nBail reviews under sections 520 and 521 of the Criminal Code are distinguishable from the current case. They are not de novo hearings and a detention or release order is only set aside where admissible new evidence shows a material or relevant change in circumstances, where there has been an error of law or where the decision is clearly inappropriate (St. Cloud at paras. 6, 94, 110, 120-121, 139). In the last of these situations, “a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision” (St. Cloud at para. 6). In sharp contrast to bail review, and as will be discussed, each and every immigration detention review is a fresh, de novo determination of whether detention is warranted.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-38", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 88–90", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Whether to order the pre-trial release of an accused involves a delicate balancing of all of the relevant circumstances (St. Cloud at para. 6). The same is true for whether to order detention pending deportation. As McLachlin C.J.C. noted in Charkaoui, the section 248 criteria—rather than being a source of some deficiency—are the guarantors of constitutional compliance (at paras. 110-117). The section 248 factors are “prescribed” factors which “must” be taken into account and ensure that extended periods of detention do not violate the Charter (paras. 109-123). The discretion the factors confer is precisely what ensures sensitivity to the context and circumstances of the individual case—a requirement under Charkaoui for constitutional prolonged detention (at para. 107).\n\nWhat are the defining characteristics of a detention review that complies with the Charter and administrative law? This engages substantive legal questions concerning the need for a nexus to an immigration purpose, compliance with sections 7, 9 and 12 of the Charter, the burden of proof, the relevance of previous detention decisions, and the content of procedural fairness.\n\nThe factors in section 248 of the Regulation, as law, must be followed. But on top of that, in order for continued detention to be legal under IRPA, there must be a nexus between detention and an immigration purpose. If that is missing, detention under IRPA is no longer possible.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-39", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 91–93", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Once again, the Supreme Court has already gone some way towards giving us guidance on this. Detention in this context is available only where it is reasonably necessary for immigration purposes: Charkaoui at para. 124, citing R. v. Governor of Durham Prison, ex parte Singh, [1984] 1 All E.R. 983 (Q.B.) and Zadvydas v. Davis, 533 U.S. 678 (2001). Absent a “possibility of deportation”, detention in this context is no longer possible: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department, [2005] 3 All E.R. 169, [2004] UKHL 56.\n\nIn assessing the presence of an immigration nexus, Charkaoui tells us that detention may be lengthy and it may be indeterminate. Charkaoui instructs that length itself is not the only relevant metric, nor is the fact that the date of removal is unknown; indeed, if the date of removal were known, it is doubtful that the parties would be before the court. When examining the constitutionality of indeterminate detention the question is whether removal, and not the precise date on which removal will occur, remains a possibility: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department.\n\nThe appellants contend that the test for a nexus to an immigration purpose is whether removal is reasonably foreseeable. I do not agree that this is the test. There are problems in this, not the least of which is that it is not the test established by the Supreme Court of Canada, which is that removal be a possibility (Charkaoui at 125-127). As noted, if Charkaoui is read properly, detention is warranted where it is “reasonably necessary” and removal “a possibility.” The Court makes no mention of a test of foreseeability.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-40", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 94–95", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Reasonable foreseeability, on its own, offers no clear guidance to the factors, considerations or evidentiary thresholds relevant to its application. It raises the questions “foreseeable by whom?” and “reasonable according to whom?” and, perhaps for these reasons, as the habeas cases which have adopted the test demonstrate, it leads to inconsistent results. The rule of law mandates, and the jurisprudence on bail demonstrates, that in matters where liberty interests are engaged, discretion should, to the extent possible, be exercised on clear and discernable criteria, as consistently as possible. “Reasonable foreseeability” does not do this. It also invites the unhelpful exercise of assessing what is “reasonable” in the context of countries with legal, political and structures of public administration vastly different than ours and with which judges have no experience.\n\nThe focus of the “possibility” test is, to the contrary, on the existence of objective, credible facts. The decision maker must be satisfied, on the evidence, that removal is a possibility. The possibility must be realistic, not fanciful, and not based on speculation, assumption or conjecture. It must be grounded in the evidence, not supposition, and the evidence must be detailed and case-specific enough to be credible. In my view, as far as a nexus to an immigration purpose is concerned, despite the different wording, there is a general congruence between the detention review and habeas tests.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-41", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 96–98", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The foregoing concerns only the starting requirement that there be a nexus to an immigration purpose, in other words whether continued detention can be ordered. But just because it can be ordered does not mean it should. It is at a second stage, namely whether detention should be ordered, that proximity or remoteness of a removal date is engaged. The length of the detention to date and the conditions of the detention are also relevant to that question, i.e., the judge’s discretion, informed by the Charter, as to whether continued detention should be ordered. There may be circumstances where a detention, by virtue of its duration or the conditions of detention affects the liberty interest of the detainee so significantly that the Charter rights of the detainee are offended and release is warranted. We leave definitive consideration of this for a future day on the specific facts of a live case.\n\nI offer a few further comments to guide that consideration.\n\nWhile duration of the detention matters, duration alone is instructive of nothing, and, as several habeas corpus cases that follow Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401 (Chaudhary)) demonstrate, a narrow focus on duration leads to a range of subjective and inconsistent decisions (see, e.g., Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220; Canada (Minister of Citizenship and Immigration) v. Dadzie, 2016 ONSC 6045, [2016] O.J. No. 5185; Scotland v. Canada (Attorney General), 2017 ONSC 4850, 52 Imm. L.R. (4th) 188; Ali v. Canada (Attorney General), 2017 ONSC 2660, 26 Admin. L.R. (6th) 78).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-42", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 99–101", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Detention cannot be ordered on the basis of non-cooperation alone—to do so would be contrary to sections 7 and 9. But where the impasse in effecting removal is disputed identity and the detainee has refused to cooperate in confirming their identity, delays in removal cannot count against the Minister. Release in these circumstances would encourage detainees to be less than forthcoming. Where a detainee is uncooperative, detention cannot be classified as indefinite because it is within the detainee’s control to change their destiny. That said, there will be cases where the receiving country alone disputes identity. Care must be taken not to attribute this to the detainee, who should not bear the burden of the country’s recalcitrance to confirm identity.\n\nThe presence of good faith is necessary. In assessing the Ministers’ efforts to effect removal, attention should be paid to all steps taken or that could reasonably be taken to procure the necessary travel documents, and whether the CBSA has actively used the time between periods of detention and release to advance the detainee’s removal.\n\nAs the facts of this case amply demonstrate, Canada’s efforts at removal may be frustrated by the receiving country. Even if a detainee consents to removal, removal depends on the receiving country issuing the necessary travel documents.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-43", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 102–105", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The conduct of the receiving country may explain the delay. Canada has the tools necessary to obtain cooperation, whether through escalating levels of diplomatic and political pressure, negotiated bilateral return agreements or placing visa or other entry requirements on nationals from the delinquent country. The question in these circumstances, where there is an impasse, is whether there is a proposed demarche or next step that is likely to advance the process. In other words, does the Minister have a plan to circumvent the impasse and is there a real possibility that it will lead to removal?\n\nThe variable conditions of detention (in a maximum security facility instead of an IHC) are not pertinent to whether detention is necessary to achieve removal. The conditions of detention are relevant to the legality of detention and the consideration of proportionality, whether under section 12 of the Charter or under judicial review.\n\nThe appellants maintain that because the ID lacks jurisdiction to control the conditions of detention when the detainees are in provincial institutions, the ID cannot ensure proportionality between detention and the reasons for detention. Detention is therefore arbitrary and results in cruel and unusual punishment. In the same vein, the appellants contend that the absence of an explicit power of the ID to consider “harsh or illegal” conditions of detention undermines the regime’s constitutionality.\n\nThis argument fails, both on the law and the evidence.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-44", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 106–107", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "There is a duty on ID members to exercise their discretion in a manner consistent with the Charter (Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572 at para. 14 (Thanabalasingham); Sahin at 228-229). As Abella J. observed in Chhina, “[t]he Charter both guides the exercise of discretionary administrative decision making under [the] IRPA and informs our interpretation of the scheme itself” (at para. 128).\n\nAn express power for the ID to consider the nature or conditions of detention is not required (R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at para. 78). The ability, indeed obligation, to consider sections 7, 9 and 12 is inherent in the exercise of the discretion concerning whether or not detention is warranted. As a tribunal of competent jurisdiction capable of providing Charter remedies, the ID can order release of a detainee on the grounds that the conditions of detention, on their own or in conjunction with other factors, are disproportionate (Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240 at para. 29; Chaudhary at para. 77).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-45", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 108–109", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "As the Supreme Court has explained, a section 12 issue of “cruel and unusual” treatment is intertwined with section 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty (Charkaoui at para. 96). But, as the Court in Charkaoui noted, it is not the detention itself, or its length, that is objectionable; detention is only cruel and unusual in the legal sense if it violates “accepted norms of treatment” (para. 96). As such, denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrary and support the argument that it is cruel or unusual, but a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual (Charkaoui at para. 96).\n\nContrary to the appellants’ argument, Charkaoui does not stand for the proposition that the body reviewing detention must have control over the location and conditions of detention. To be clear, the Supreme Court said that, for an immigration detention scheme to be compliant with sections 7 and 12 of the Charter, it must provide a mechanism for review of detention that permits the reviewing body to set conditions that would neutralize the risk upon release, and that conditions of release must be subject to ongoing, regular review (Charkaoui at paras. 107, 117, 121). The Supreme Court’s focus in Charkaoui is on jurisdiction to impose conditions of release and on the detainee’s opportunity to challenge those conditions, not on the place and conditions of detention.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-46", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 110–111", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "In R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599 (Boudreault), the Supreme Court reiterated that demonstrating a breach of section 12 is a high bar: the treatment or punishment must be more than merely disproportionate or excessive—it must be so excessive as to “outrage standards of decency” and be “abhorrent or intolerable” to society (at para. 45; see also R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 at para. 24). It is only in very rare and unique occasions that a treatment or punishment will infringe section 12, as the test is “very properly stringent and demanding” (Boudreault at para. 45; see also R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 at para. 26; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, 121 N.R. 198 at 1417).\n\nAgainst this jurisprudential backdrop, including Charkaoui, many of the appellants’ arguments regarding the conditions of detention were dismissed by the Federal Court. No reviewable error in that finding has been demonstrated. The evidence of conditions of detention falls far short of the threshold of cruel and unusual punishment set by the Supreme Court, and does not support the broad declaration sought by the appellants.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-47", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 112–113", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellants rely on the Ontario Court of Appeal decision P.S. v. Ontario, 2014 ONCA 900, 379 D.L.R. (4th) 191 (P.S.). In P.S., the Court found that non-punitive detention under the Mental Health Act, R.S.O. 1990, c. M-7 did not comply with section 7 of the Charter because the Consent and Capacity Board’s powers were inadequate. The review board lacked the jurisdiction to supervise the security level and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees’ liberty interests (P.S. at para. 115). The objective of reintegrating patients into the community was frustrated by the fact that the Board could not direct that certain types of treatment or therapies be made available to the detainees. The purpose of detention was to facilitate re-integration and, without those tools, detention was not linked to the legislative objective.\n\nUnder the IRPA, inadmissible foreign nationals are detained in order to ensure that they do not flee or harm the public before they are deported from the country. The purpose of detention is to facilitate public safety and removal. Unlike the Consent and Capacity Board, the ID has all the tools necessary to effect these objectives and, importantly, the jurisdiction to impose conditions on release, which reflects an appropriate balance between the objectives of the Act and the detainees’ liberty interest. The problem in P.S. was that the legislative tools granted to the Board were insufficient in relation to its objectives. Here, in contrast, it is argued that the powers of the ID are overbroad in relation to the objective. The case is of no assistance.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-48", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 114–117", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "More relevant is the Ontario Court of Appeal decision in Toure v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 681, 40 Admin. L.R. (6th) 261 (Toure).\n\nIn Toure, the Ontario Court of Appeal took no issue with the CBSA criteria that govern the location of detention, and held that the location of detention was a proper issue for immigration detainees to raise with the CBSA (at para. 72). If the location of detention is not consistent with how a detainee fits within the CBSA's own criteria, the decision is the proper subject of judicial review in the Federal Court (at para. 72). I agree with these observations.\n\nThe CBSA’s decision to stream a detainee into a provincial institution as opposed to an IHC is a reviewable decision or order under section 2 of the Federal Courts Act, R.S.C. 1985, c. F-7. Similarly, a detention order that does not take into account the proportionality of the risk and the conditions of detention, can be tested in the Federal Court, on both Charter and administrative law principles. A decision that fails to consider the proportionality between the risk and the measures to mitigate that risk will be set aside, as will a decision that reached an unreasonable conclusion in that regard.\n\nIn any event, as the Federal Court noted, both the federal and Ontario statutes governing the detention of persons in correctional facilities state that any designation of a particular penitentiary in a warrant of committal is of no force or effect (Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 11; Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 17; see Federal Court reasons at para. 136). Neither the appellants nor the interveners point to authorities which deem those provisions to be unconstitutional.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-49", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 118–120", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The detention review scheme established by Parliament imposes a continuing and overarching legal burden on the Minister to establish that detention is lawfully justified according to section 58 of the IRPA, section 248 of the Regulations, and the Charter. The Minister bears the legal burden of establishing, on a balance of probabilities, that there are grounds for detention. If the Minister succeeds in that, the legal burden remains on the Minister to establish, in light of the section 248 criteria, that detention is warranted. This burden rests on the Minister throughout the detention review and re-surfaces every 30 days.\n\nThere are only two burdens in Canadian law: the legal or persuasive burden, sometimes called the onus of proof, and the evidentiary burden.\n\nWhile the terms legal and persuasive burden are interchangeable, “legal burden” is arguably more apt a term than “persuasive burden” because it emphasises the obligation on the asserting party, the plaintiff or the Crown, to establish the requisite substantive factual elements of a cause of action or offence (R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at paras. 10-12). Those facts must be established on a balance of probabilities in a civil matter and beyond a reasonable doubt in a criminal proceeding (F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paras. 40-41; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 at para. 94). Importantly, barring a statutory or common law rule, the legal burdens associated with a party never shift (Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman, & Bryant’s The Law of Evidence in Canada, 5th ed. (Toronto, ON: Lexis Nexis, 2018) at § 3.46 (The Law of Evidence in Canada)).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-50", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 121–122", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "If the evidence establishes a ground for detention under the Act and suggests that detention is justified under section 248 of the Regulations, it may be in a detainee’s interest to introduce evidence in favour of release. This is not a shifting of the legal burden. It is, rather, descriptive of the tactical decision whether to lead evidence to prevent a potentially unfavourable outcome (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, 175 D.L.R. (4th) 193 at para. 53; The Law of Evidence in Canada at 116, § 3.56; Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289 at 329-330; see also R v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at para. 50). The appellants are right to point to some passages in Federal Court detention reviews that do not respect the difference. The distinction is important, as is the language used. The two ought not be confused.\n\nThe legal burden does not shift or change should the Minister establish a prima facie case of grounds for detention. The detainee is not required in law to do anything. Establishing grounds for detention does not mean that a detention order should issue. It simply means that there is a basis to consider making a detention order. Even when no evidence is offered by the detainee in response, the legal burden is on the Minister to make the case for detention on a balance of probabilities in respect of each of the section 248 factors. A detainee’s decision to introduce evidence in response is entirely tactical.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-51", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 123–124", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nor does the legal burden on the Minister change with successive detention reviews. Whether it is the first or the tenth detention review, the Minister must establish on a balance of probabilities that a ground for detention exists, the existence of a nexus to an immigration purpose and the appropriateness of the detention. What may often change with the passage of time is the quantity and quality of evidence required to justify detention. The longer the period of detention, the more time and opportunity the government has had to make the necessary arrangements with the receiving country and to execute removal. With the passage of time, the assertion that removal remains possible requires a more probing inquiry. Reflecting this reality, in Charkaoui, the Supreme Court stated that the burden on the Minister becomes heavier over time (at para. 113); I take the Supreme Court to have been speaking of an evidentiary or tactical burden here, not a persuasive burden.\n\nThe Supreme Court observed in Mission Institute v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at paragraph 40 (Khela) that the shift in onus from the prisoner to the detaining authority is unique to the writ of habeas corpus. But there is no reason why a statutory detention regime cannot achieve the same effect as habeas corpus. Parliament has crafted such a regime here.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-52", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 125–127", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Indeed, the scheme in the IRPA offers procedural and substantive advantages over a habeas corpus application. Properly interpreted, the IRPA requires the Minister to establish afresh the justification for detention every thirty days. The detention review occurs without any action on the part of the detainee, and for the entirety of the inquiry the burden is on the Minister to justify detention. The detainee is not required to do anything, procedurally or substantively. This can be contrasted to an application for habeas corpus where the applicant must initiate the application, establish that they have been deprived of liberty and that there is a legitimate ground to question their detention before the onus shifts to the responding authorities to show that the deprivation was lawful (Khela at para. 30).\n\nThere remain the observations of the Supreme Court in Chhina that the burden on the Minister decreases with time and that the requirement not to depart from prior decisions without clear and compelling reasons leads to self-referential reasoning and, in effect, shifts the onus to the detainee.\n\nChhina must be understood in light of the principles articulated by the Supreme Court in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (Henry). Henry instructs that reasons move along a spectrum—from the ratio, which is binding, to guidance that, although not strictly binding, is expected to be followed, to commentary (at para. 57). The Court’s comments in Chhina on Thanabalasingham fall within the last-mentioned category.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-53", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 128–130", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thanabalasingham does not stand for the proposition that the burden shifts to the detainee. To the contrary, in Thanabalasingham, this Court held precisely the opposite: that “[t]he onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention” (at para. 16). Similarly, contrary to what the Court said in Chhina, in Charkaoui the Supreme Court held that the burden and evidentiary challenges on the Minister increase with the passage of time.\n\nThe Court in Chhina did not conduct a statutory interpretation exercise of the detention provisions in the IRPA, examine Thanabalasingham in depth or reconsider Charkaoui. For these reasons, the observations in Chhina, above, should not be regarded as binding upon us.\n\nThe appellants argue that the scheme is unconstitutional because the collective weight of past decisions to detain creates a strong incentive to defer to those decisions and maintain detention. Once detained, always detained. The appellants say that this flows from the jurisprudence, which requires an ID member to provide “clear and compelling reasons” if they wish to depart from a prior detention decision (Thanabalasingham at para. 10) and the recent observations of the majority of the Supreme Court in Chhina that the ID’s periodic reviews are susceptible to “self-referential” reasoning (see also Chaudhary at paras. 85-88).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-54", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 131–132", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "If this were a consequence of either the statutory scheme or the effect of Thanabalasingham, these arguments would have substance. But they have no foundation, either in the statutory scheme or in the jurisprudence. I have already explained how nothing in the IRPA or the Regulations places an obligation on a detainee to lead fresh evidence between detention reviews in order for the ID to reach a different result. Nothing in the IRPA requires the detainee to demonstrate a change in circumstances, and neither does the jurisprudence.\n\nIn Thanabalasingham, Rothstein J. expressly and unequivocally rejected the argument that the findings of previous members “should not be interfered with in the absence of new evidence” and held that “at each hearing, the Member must decide afresh whether continued detention is warranted” (at paras. 7-8). Guidelines issued on April 1, 2019, by the Chair of the Immigration and Refugee Board pursuant to paragraph 159(1)(h) of the IRPA reinforce this point and align with the instructions of the Federal Court to the ID in Canada (Public Safety and Emergency Preparedness) v. Hamdan, 2019 FC 1129 (Hamdan) (see Immigration and Refugee Board of Canada, Chairperson Guideline 2: Detention (Ottawa: Immigration and Refugee Board of Canada, April 1, 2019)).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-55", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 133", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Members of the ID are obligated, under their oath and by law, to consider the circumstances of the particular individual whose detention or liberty is in issue in a fair and open-minded way. Each member is required to undertake their own independent assessment of the case for and the case against detention. Abella J. returns to this point in Chhina, noting that “[t]he integrity of the IRPA process is dependent on a fulsome review of the lawfulness of detention, including its Charter compliance, at every review hearing” (at para. 127). Abella J.’s dissenting reasons, which were not contradicted by the majority on the point mentioned here, were foreshadowed in Federal Court jurisprudence (see, e.g., Sahin at 228-230; Thanabalasingham at para. 14).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-56", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 134", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thanabalasingham creates no special rule for ID reviews. The requirement to give reasons when departing from a prior decision is directed to the well-understood requirement, essential to the integrity of administrative and judicial decision making, that if there is a material change in circumstances or a re-evaluation of credibility, the ID is required to explain what has changed and why the previous decision is no longer pertinent. This reinforces the values of transparency, accountability and consistency. As was explained by the Supreme Court of Canada in Vavilov, the primary purpose of reasons is to demonstrate justification, transparency and intelligibility (at para. 81). To promote “general consistency”, any administrative body that departs from its own past decisions typically “bears the justificatory burden of explaining that departure in its reasons” (at paras. 129-131). Moreover, reasons are the primary mechanism by which affected parties and reviewing courts are able to understand the basis for a decision (at para. 81; see also Canada (Public Safety and Emergency Preparedness) v. Berisha, 2012 FC 1100, [2014] 1 F.C.R. 574 at para. 52).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-57", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 135", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "I note, parenthetically, that the role of reasons when making a decision to depart from a previous decision is no different if habeas corpus is sought. The requirement for clear and compelling reasons does not change with the forum. As Professor Paul Daly observed in his commentary on Chhina, where a habeas corpus application is unsuccessful, a detainee may re-apply, and apply again after that. The provincial superior court hearing the habeas corpus application will be faced with the same challenges as the ID in justifying its decision; the same danger of self-referential reasoning remains, one way or another. In part for this reason, the Supreme Court’s solution to the problem in Chhina has been criticized (see, e.g., Paul Daly, “To Have the Point: Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29” (5 June 2019) online (blog): Administrative Law Matters ). As Professor Daly notes, the solution to the self-referential reasoning lies not in offering detainees a different procedure for the assessment of the legality of detention, but rather, as Abella J. stressed in her dissent in Chhina, ensuring that at each detention review detainees’ Charter rights remain front and centre.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-58", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 136–137", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Where a decision affects the rights, privileges or interests of an individual, the common law duty of fairness is triggered (see, e.g., Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653; Baker at para. 20). The greater the effect a decision has on the life of an individual, the more robust will be the procedural protections required to fulfill the duty of fairness and the requirements of fundamental justice under section 7 of the Charter (Charkaoui at para. 25, quoting Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 118). At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The procedural rights afforded under section 7 of the Charter provide the same protection for detainees (Charkaoui at paras. 28-29, 53).\n\nAlthough the content of the duty of fairness varies with the context within which it is applied, proceedings with stakes analogous to those in criminal proceedings “will merit greater vigilance by the courts” (Charkaoui at para. 25, quoting Dehghani v. Canada (Minister of Employment & Immigration), [1993] 1 S.C.R. 1053, 101 D.L.R. (4th) 654 at 1077). Because the liberty of the subject is involved, such is the case here.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-59", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 138–139", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Administrative bodies enjoy the autonomy to control their own procedures, but they must nonetheless observe procedural fairness. Only statutory language or necessary implication can displace the duty of procedural fairness (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 at para. 22; Kane v. Bd. of Governors of U.B.C., [1980] 1 S.C.R. 1105, 110 D.L.R. (3d) 311 at 1113). There is no statutory language in the immigration detention scheme of the IRPA that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law.\n\nThe Immigration Division Rules, S.O.R./2002-229 provide in section 26 that documents the parties intend to rely on must be provided in advance: 26. If a party wants to use a document at a hearing, the party must provide a copy to the other party and the Division. The copies must be received: (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and (b) in all other cases, at least five days before the hearing. 26. Pour utiliser un document à l’audience, la partie en transmet une copie à l’autre partie et à la Section. Les copies doivent être reçues : a) dans le cas du contrôle des quarante-huit heures ou du contrôle des sept jours, ou d’une enquête tenue au moment d’un tel contrôle, le plus tôt possible; b) dans les autres cas, au moins cinq jours avant l’audience.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-60", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 140–141", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The interveners assert that detainees do not receive sufficient and timely disclosure to allow them to know the case they have to meet and to respond. They argue that the Immigration Division Rules fall short of what fairness requires because they, and the relevant policy guidelines, require disclosure of only the documents on which the Minister intends to rely. They also point to evidence that says that the disclosure that is made is often late and leaves counsel with no ability to adequately represent the detainee’s interests.\n\nThe existence of a legislated disclosure requirement does not dispose of the question whether procedural fairness has been met. The Court must still examine whether the duty of fairness has been fulfilled. The Federal Court observed that Mr. Brown raised “legitimate concerns about the timeliness and quality of pre-hearing disclosure” (Federal Court reasons at para. 127). I agree that those concerns are substantiated by the evidence. Mr. Singh, a hearings officer with the CBSA, admits that, although disclosure is to be provided in advance, “there are times where it is not provided in advance” (Federal Court reasons at para. 110).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-61", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 142–144", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The need for detainees to know the case against them creates a disclosure obligation. To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed, including information that is only to the advantage of the detainee. This includes information pertaining to the grounds for the detention, information pertaining to the section 248 criteria, the existence of an immigration nexus, and the factors that bear upon the judge’s assessment whether continued detention is warranted and consistent with Charter and administrative law principles. While the disclosure obligation necessarily encompasses information that is helpful to the detainee, it is not unlimited. It is always tempered by the requirement that the information be relevant to the circumstances of the particular detainee.\n\nSection 26 of the Immigration Division Rules, even if followed, does not fulfill the minimum requirements of the common law duty of fairness. This is because the requirement to introduce evidence arises only where information provided is contradicted by another party (Canada, Citizenship and Immigration Canada, ENF 3: Admissibility, Hearings and Detention Review Proceedings, (Ottawa: April 29, 2015) at 34 (ENF 3)).\n\nENF 3 states that “[i]f the hearings officer recommends continued detention, the hearings officer should submit all available evidence to the ID in support of continued detention” (at 38). This falls short of what procedural fairness requires. Procedural fairness requires that the detainee have advance disclosure of all evidence relevant to the section 248 criteria, regardless of whether the Minister relies on it to support continued detention.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-62", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 145", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The legality of a detention order pending removal is underpinned by a finding, on the evidence, that removal remains a possibility. For this reason, disclosure of evidence concerning the likelihood of removal is also central to the legality of a detention order. This in turn requires the ID to assess the Minister’s efforts respecting removal and the reasons for delay at each and every hearing. Detainees are entitled to know what evidence the Minister relies upon for an argument that removal remains a possibility. Subject to recognized public interest privileges arising under section 38.01 of the Canada Evidence Act, R.S.C. 1985, c. C-5, relevant evidence of communications with a receiving country ought to be disclosed in advance of the hearing. Given the obligation imposed by section 248 of the Regulations, it would be a rare case where a member could properly exercise their discretion to continue detention in the absence of this evidence.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-63", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 146–147", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The common law obligation on the Minister to disclose—subject to public interest privileges—all pertinent documents is also consistent with Canada’s international law obligations. The United Nations High Commissioner for Refugees’ Detention Guide emphasizes that a “minimum procedural protection” for detainees is that an immigration detainee’s lawyer “have access […] to records held on their client” (United Nations High Commissioner for Refugees, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention, 2012 at para. 47(ii)). The United Nations Basic Principles and Guidelines on the right of anyone deprived of their liberty to bring proceedings before a court, 4 May 2015, WGAD/CRP.1/2015 (UN Basic Principles and Guidelines) requires that disclosure include information that could assist the detainee, and that it be provided to the detainee “without delay so as to provide adequate time to prepare the challenge” (UN Basic Principles and Guidelines, Guideline 5 at 14, and Guideline 13 at 17-18). The common law requires the same protections.\n\nThe interveners point to the Federal Court’s recent decision, Allen v. Canada (Public Safety and Emergency Preparedness), 2018 FC 486 (Allen), as demonstrative of how the regime lacks procedural protections. In Allen, the Federal Court found that the duty of fairness did not require disclosure of the CBSA’s communications with Jamaica, even though they had been specifically requested by the detainee. The Federal Court’s decision turned in part on the fact that the detainee had been uncooperative (Allen at para. 62).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-64", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 148–149", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The cooperation of a detainee is a relevant consideration for the ID in determining alternatives to detention, the cause of delay in removal and the assessment of the reasonableness of the Minister’s efforts to effect removal. Lack of cooperation, however, is irrelevant when it comes to deciding which procedural protections are afforded to a detainee by the duty of fairness. To the extent that Allen stands for the proposition that lack of cooperation vitiates the Minister’s disclosure obligations, it should not be followed.\n\nThe lawful exercise of the power to order detention requires an adequate evidentiary foundation. This includes all relevant evidence relating to the factors under section 248. In cases of inadequate disclosure, judicial review can be sought, on an expedited basis, and interim orders can be made compelling disclosure (see section 18.2 of the Federal Courts Act). Importantly, a detention decision may be vitiated if it is established that there has not been timely disclosure of material documents which results in a breach of procedural fairness.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-65", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 150–153", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "As I have noted, the conclusion of the majority of the Supreme Court in Chhina that recourse to habeas corpus should be allowed does not flow from any conclusion regarding the constitutionality of the IRPA. The issue before the Supreme Court was whether habeas corpus was available as an alternative remedy to detention reviews and judicial review. The focus of this case, in contrast, is the constitutionality of the scheme that governs detention and review before the ID. Nonetheless, given the importance of judicial oversight to ensuring the lawful integrity of ID decisions, and considering the submissions received from the parties subsequent to the release of Chhina while this case was under reserve, certain observations are in order.\n\nThe first observation is that whether viewed from a procedural or substantive perspective, judicial review provides a remedy that is fully responsive to the seriousness of the issues under consideration. I will deal with the substantive considerations first.\n\nA majority of Supreme Court in Chhina finds that the ID “does not conduct a fresh review of each periodic detention” and “as such, the scope of review before the Federal Courts is correspondingly narrower than review on habeas corpus” (at para. 64).\n\nTo the contrary, the ID must look at the detainee’s entire detention history. The Regulations themselves require no less. Three of the five criteria in section 248 require the ID to have regard to the length of time in detention, which mandates a consideration of the entire history. The detainee’s entire detention history necessarily forms part of the evidence before the ID, as it will before the Federal Court.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-66", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 154–156", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "Neither the ID, nor the Federal Court assesses the legitimacy of detention blinded to the overall history of detention. Each 30-day detention review requires consideration of the detention as a whole. Indeed, a cursory review of ID and Federal Court decisions demonstrates this to be the case (see, e.g., Canada (Citizenship and Immigration) v. Li, 2009 FCA 85, [2010] 2 F.C.R. 433 at paras. 66-67; Hamdan at paras. 29-30; Canada (Public Safety and Emergency Preparedness) v. Arook, 2019 FC 1130; Canada (Public Safety and Emergency Preparedness) v. Taino, 2020 FC 427; and the Federal Courts Rules, S.O.R./98-106, r. 306-309, r. 317).\n\nWhere the legislation prescribes a set of considerations, and mandates the default outcome of release, departure or deviance from either results in an unlawful decision (Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203). In a detention review, the range of lawful decisions available to the ID member is constrained by section 58 of the IRPA and section 248 of the Regulations. If a detention order has not been made according to law, it will be set aside. For example, an ID member’s failure to consider the likelihood of removal, relevant factors in section 248 or beyond, or alternatives to detention, would result in the decision being set aside. Release would follow unless the Federal Court order is stayed.\n\nMy second observation is that the assertion made to this Court, and to the Supreme Court in Chhina, that judicial reviews were invariably moot has no foundation in the evidence.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-67", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 157–158", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The evidence paints a different picture. As Abella J. noted in Chhina, the Federal Court heard and disposed of Mr. Chhina’s judicial review application in one week less time than the habeas corpus application was heard and decided (at para. 119). Again, a cursory review of Federal Court jurisprudence with respect to detention review demonstrates that applications for judicial review are often heard and disposed of in the Federal Court on an urgent basis (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Shen, 2020 FC 405; Hamdan; Arook; and Taino).\n\nI agree with my colleague, Justice Stratas, who has recently observed that the “factual spin and speculation about the procedural flexibility, innovative capability and remedial effectiveness of the Federal Courts” in Chhina and R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 at paras. 57-61 is “false and unsupported” (Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 at para. 22).", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-68", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 159", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Federal Court is accessible 24 hours a day, 365 days a year, from coast to coast for urgent applications, in both official languages. Interim stay orders are frequently issued (Federal Courts Act, section 18.2). Time frames are routinely abridged (see, e.g., MPSEP v. Mustafa Abdi Faarah ((IMM-1347-19); MPSEP v. Martin Sevic (IMM-1375-20); Canada (Public Safety and Emergency Preparedness) v. Ahmed, 2019 FC 1006; MPSEP v. Baniashkar, 2019 FC 729; Hamdan and Arook). Hearing dates are routinely expedited. Hearings may be by teleconference, or in person, in Federal Court facilities across Canada. Cases are heard and disposed of as quickly as the parties request or circumstances require (see, e.g., MPSEP v. Malkei, IMM-2466-20; MPSEP v. Shen, IMM-1626-20). Federal Court judges assigned to hear judicial review applications of detention decisions understand that liberty interests are at stake. The remedies can be innovative and creative (see, e.g., Fond du Lac First Nation v. Mercredi, 2020 FCA 59 at para. 5; Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93; D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167). Further, and unlike many superior courts, there is a standing liaison committee between the Federal Court and representatives of the specialized immigration bar. This committee, including the sub-committee on immigration detention, serves as a vehicle for addressing any matter of concern relating to the efficient and expeditious disposition of immigration proceedings.", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-69", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 160–163", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "In any event, the possibility that an ID decision may be moot is not pertinent. Technically moot decisions may be reviewed where the failure to do so would render the decision evasive of judicial review (Democracy Watch v. Canada (Attorney General), 2018 FCA 195 at para. 14).\n\nTo conclude, judicial review, like habeas corpus, tests the legality of a detention decision against the Charter and common law principles. But it also does much more; it tests the reasoning process, its transparency and its integrity. It examines the treatment of the discretionary factors and whether they were properly taken into account. It holds up the reasons to independent scrutiny to determine whether they pass legal muster, from both a Charter and administrative law perspective. As the Supreme Court concluded in Charkaoui, the remedy of judicial review is “robust” (at para. 123).\n\nThe Federal Court certified the following question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nI would answer the question in the negative and would dismiss the appeal. Consistent with the request of the parties, I would make no order as to costs. \"Donald J. Rennie\" J.A. “I agree. Johanne Gauthier, J.A.” “I agree. David Stratas, J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-36347-1", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 1–4", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal from a decision of the Federal Court, 2008 FC 341, dated March 13, 2008, pursuant to which Madam Justice Dawson dismissed the appellants’ judicial review application on the ground that it was moot. In so concluding, the learned Judge certified the following question: Where an applicant has filed an application for leave and judicial review challenging a refusal to defer removal pending a decision on an outstanding application for landing, and a stay of removal is granted so that the person is not removed from Canada, does the fact that a decision on the underlying application for landing remains outstanding at the date the Court considers the application for judicial review maintain a “live controversy” between the parties, or is the matter rendered moot by the passing of scheduled removal date?\n\nAs the certified question makes clear, the appellants filed an application for leave to commence a judicial review following the refusal by an enforcement officer to defer their removal from Canada until a decision had been rendered with regard to a humanitarian and compassionate application (“H&C application”) made by them pursuant to section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).\n\nTwo issues arise in this appeal. The first one is the issue of mootness to which the certified question pertains. The second issue, which we need address only if we conclude that the judicial review application is not moot, concerns the reasonableness of the enforcement officer’s decision to refuse to defer the appellants’ removal from Canada.\n\nI now turn to the facts relevant to the disposition of the appeal. THE FACTS", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-2", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 5–8", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellants are citizens of Argentina who entered Canada in April 2000 as visitors. In November 2000, shortly after their visas expired, they filed claims for refugee protection which were rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board on May 30, 2002. As a result, the departure orders made against them when they filed their refugee claims became effective. On October 16, 2002, their application for leave to commence a judicial review application was dismissed by the Federal Court.\n\nOn November 30, 2004, counsel for the appellants made an inquiry with regard to an H&C application which, according to counsel, had been submitted on behalf of the appellants in March 2003. The Case Processing Centre in Vegreville responded to this inquiry and advised counsel that it had no record of an H&C application having been filed on behalf of the appellants.\n\nIn January 2006, warrants were issued against the appellants by reason of their failure to report for a pre-removal interview. The warrants were executed against them in March and July 2006, at which time they were again informed that there was no record of a pending H&C application made on their behalf.\n\nOn September 5, 2006, the appellants filed an H&C application which was returned to them for insufficient funds. The application was resubmitted on December 8, 2006, this time with the proper funds. During that period, the appellants also filed a pre-removal risk assessment (a “PRRA”) which was refused. As a result, the appellants were served with a direction to report for removal from Canada on January 18, 2007.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-3", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 9–12", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellants having purchased airline tickets for themselves and their children for a return to Argentina on February 15, 2007, their removal was deferred to that date so as to allow them extra time to make necessary arrangements for their departure from Canada. I should point out here that the appellants have two Canadian-born children, Yan Sebastian who is 7 seven years and Zoe who is 4 years old (respectively 5 and 2 years old at the time of the enforcement officer’s decision)..\n\nNotwithstanding the foregoing, on January 26, 2007, the appellants made a further request to have their removal deferred, i.e. that deferral be granted until such time as their H&C application had been decided. On January 29, 2007, the enforcement officer refused to defer their removal.\n\nThis led the appellants to seek leave of the Federal Court to commence a judicial review application of the enforcement officer’s decision. On February 9, 2007, O’Keefe J. stayed the appellants’ removal from Canada until a decision had made on their judicial review application and on October 19, 2007, leave to pursue a judicial review was granted by the Federal Court.\n\nThe appellants’ judicial review application was heard by Dawson J. on January 17, 2008. She dismissed it on March 13, 2008. It is to that decision that I now turn. DECISION OF THE FEDERAL COURT", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-4", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 13", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Dawson J. found the appellants’ judicial review application to be moot. In her view, a decision on the merits of the application would not resolve any controversy between the parties. The substance of the learned Judge’s reasoning appears from paragraphs 33 to 38 of her Reasons, which I reproduce: [33] The applicants are subject to a valid removal order and were directed to report for removal on January 18, 2007, on Air Canada flight #92. In order to issue the direction to report, the CBSA was first required to make a number of travel arrangements, including ensuring the availability of travel documents, an itinerary and airline tickets, and to notify the airline of its requirement to carry a foreign national from Canada. [34] The effect of the stay issued by the Court was to render those arrangements nugatory when the date scheduled for removal passed and the applicants remained in Canada. Whether the Court now decides that the decision of the enforcement officer was reasonable or not, the applicants have received the deferral that the officer refused. It is now an abstract question whether the enforcement officer ought to have deferred removal. [35] For the following reasons, I can see no practical effect on the rights of the parties if this case is decided on its merits. If the case is decided and dismissed, the stay will come to an end, the CBSA can make new removal arrangements, and the applicants can request deferral again. That same result will occur if the application is allowed on the same basis as in Samaroo, cited above. The validity of the removal order is not affected; the applicants remain subject to removal. [36] In either event, the parties will only have the benefit of the Court's view of the propriety of removal on stale-dated facts.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-5", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 13", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, the exercise of discretion to defer removal is very fact-based. There is no way of knowing whether, since the decision at issue was made, there have been intervening circumstances of risk, pregnancy, birth, illness, or the like. Further, the jurisprudence of the Court is to the effect that the length of time that a humanitarian and compassionate application has been outstanding is a relevant consideration when considering requests for deferral. In the present case, the applicants' humanitarian and compassionate application has now been outstanding for an additional 12 months. A decision on stale facts will be of little use to the parties if further removal arrangements are made. [37] Even if the application is allowed, remitted to a new officer for determination and updated information about the applicants' circumstances is obtained, the parties will be in the same position as if the Court had dismissed the application, either on the merits or on the basis of mootness, and new removal arrangements were made. [38] Thus, any decision on the merits of this application will not resolve any controversy between the parties. The application is therefore moot and, further, no useful purpose would be served by determining the application on its merits. [Emphasis added]", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-6", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 14–15", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Dawson J. then went on to deal with the respondent’s argument that the proper characterization of the controversy between the parties was whether the appellants ought to be removed before their H&C application was dealt with. In Dawson J.’s view, that characterization was in error. She explained her opinion as follows at paragraphs 44 and 45: [44] The officer is charged with the duty of effecting removal as soon as is “reasonably practicable.” Equally, subsection 48(2) of the Act requires the subject of an enforceable removal order to leave Canada immediately. In the face of a looming removal date, the officer is presented with a series of facts that are said to warrant deferral at that point in time. The officer then decides whether the facts are such to render removal impracticable, and thus relieve the applicant of his or her obligation to leave immediately. For example, the officer may be asked to defer removal because a humanitarian and compassionate application has been outstanding for 18 months at the time of removal. The officer is not asked to consider, and does not consider, whether removal would be deferred if the application had instead been outstanding for 30 months. [45] For that reason, I find that the proper characterization of the dispute is whether an applicant should be removed, and is obliged to leave, on the scheduled removal date. [Emphasis added]\n\nDawson J. also declined to exercise her discretion to decide the judicial review application. Although she was of the view that an adversarial relationship still existed between the parties, deciding the case on the merits would have, in her view, no practical effect or useful purpose with regard to the parties’ rights.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-7", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 16–17", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "I should point out that Madam Justice Dawson’s decision is only one of a number of recently-determined cases by the Federal Court where it has been held that a judicial review application of an enforcement officer’s decision refusing to defer a person’s removal from Canada is moot (see: Higgins v. M.P.S.E.P., 2007 FC 377; Solmaz v. M.P.S.E.P., 2007 FC 607; Maruthalingam v. M.P.S.E.P., 2007 FC 823; Vu v. Minister of Citizenship and Immigration, 2007 FC 1109; Madani v. M.P.S.E.P., 2007 FC 1168; Adams v. M.P.S.E.P., 21 November 2007 (Court file IMM-4121-07) (F.C.); Kovacs v. M.P.S.E.P., 2007 FC 1247; Baron v. M.P.S.E.P., 2008 FC 341; Islami v. M.P.S.E.P., 2008 FC 364; Leung v. M.P.S.E.P., 17 April 2008 (Court file IMM-3712-07) (F.C.); Palka v. M.P.S.E.P., 2008 FC 342; Lewis v. M.P.S.E.P., 2008 FC 719; and Gumbura v. M.P.S.E.P., 2008 FC 833). THE PARTIES’ SUBMISSIONS\n\nThe appellants submit that the Judge mischaracterized the nature of the dispute between the parties as being “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date.” Rather, the appellants contend that they had requested that their removal from Canada be deferred “pending a determination of their H&C application.” Therefore, the dispute between the parties was not simply whether the appellants’ removal should proceed or not on the scheduled removal date, but whether it should be deferred pending determination of the H&C application. The appellants submit that this controversy remained live at the time of the judicial review application hearing, and remains alive today, since the decision on the appellants’ H&C application remains pending.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-8", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 18–19", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "In the alternative, the appellants submit that the Judge erred in declining to exercise her discretion, even if the judicial review application was moot. The appellants contend that the Judge erred in finding that there would be no practical effect on the rights of the parties if she decided the case.\n\nWith respect to the decision challenged by the judicial review application, the appellants submit that this Court should find that the enforcement officer erred in refusing to defer their removal pending the determination of their outstanding H&C application. They submit that a very long time has passed since they first attempted to file an H&C application and that the best interests of their Canadian children militate in favour of a deferral.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-9", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 20–21", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "The respondent submits, as the appellants do, that the judicial review application is not moot. He argues that the correct characterization of the controversy between the parties is whether the appellants should be removed prior to the happening of a particular event, i.e. prior to the determination of their pending H&C application. It is then not the passing of the scheduled removal date which renders the judicial review application moot, but the happening of the event. The respondent disagrees with the Judge’s conclusion that a determination on the merits of the application would be of little use to the parties, and argues that a decision on the merits of the enforcement officer’s decision would provide a real remedy to the parties. Furthermore, the respondent submits that the mootness determination yields an inequitable outcome, since all stay motions where a stay of removal is granted will pre-judge the outcome of the leave and judicial review application, essentially turning stay motions into judicial review applications on short notice and often on a deficient record. The respondent contends that it could not have been intended for the application of the tri-part test to have this effect (see: Manitoba (A.G.) v. Metropolitan Stores (MPS) Ltd., [1987] 1 S.C.R. 110; Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.); R.J.R. MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311).\n\nWith respect to the merits of the application, the respondent submits that the enforcement officer did not err in refusing to defer removal until a decision had been made on the appellants’ pending H&C application. The respondent argues that in light of section 48 of the Act, the Minister was bound to execute the removal order as soon as reasonably practicable.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-10", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 22–25", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Finally, the respondent says that the enforcement officer considered all of the appellants’ circumstances, including the best interests of their children. THE ISSUES\n\nThe questions which we must determine in the present appeal are the following: 1. Did the Applications Judge err in law by dismissing the judicial review application for mootness and by refusing to exercise her discretion to hear the case? 2. If the answer to the first question is in the affirmative, did the enforcement officer make a reviewable error in refusing to defer the appellants’ removal from Canada pending the determination of their outstanding H&C application? ANALYSIS A. Standard of Review\n\nThere is no dispute between the parties that the appropriate standard of review with respect to the mootness issue is the correctness standard. I agree (See: Housen v. Nikolaisen, [2002] 2 S.C.R. 235).\n\nWith respect to the enforcement officer’s decision refusing to defer the appellants’ removal from Canada, I cannot see how it can be disputed that the applicable standard is that of reasonableness (See: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190). B. Did the Applications Judge Err in Law by Dismissing the Judicial Review Application for Mootness and by Refusing to Exercise her Discretion to Hear the Case?", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-11", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 26–28", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Both the appellants and the respondent submit that the Judge erred in law in dismissing the application for judicial review on the basis that it was moot. They argue that a live controversy continues to exist between them and that it is not the passing of the scheduled date of removal, i.e. February 15, 2007, which renders the application moot. In their view, although put forward in slightly different terms, it is the rendering of a decision on the appellants’ H&C application that would render the judicial review moot.\n\nI have come to the conclusion that a live controversy still exists between the parties and that, as a result, the appellants’ judicial review application is not moot.\n\nTo begin with, it is important to make clear what the appellants were seeking when they requested deferral of their removal from Canada on February 15, 2007. As the enforcement officer says in her decision, the appellants’ request was put forward on the grounds that they had an outstanding H&C application [which the appellants say they had attempted to file in March 2003] and that it was in the best interest of their Canadian-born children that removal be deferred until the H&C application had been dealt with. In other words, the appellants were not simply asking that they not be removed on February 15, 2007, but that their removal not take place until the determination of their H&C application.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-12", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 29–30", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "I agree entirely with the parties that the determination of the mootness issue depends on the proper characterization of the controversy that exists between them. In this regard, the parties implicitly concede that if the characterization of the dispute as found by the Judge, i.e. “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date” (paragraph 45 of her Reasons), is correct, then the judicial review application is moot. However, they submit that the proper characterization is whether the appellants should be removed prior to the determination of their H&C application. At paragraph 33 of his Memorandum of Fact and Law, the respondent formulates his submission as follows: 33. The correct characterization of the controversy, however, is whether an applicant should be removed prior to the happening of a particular event, such as prior to the determination of a pending H & C application. It is then not the passing of the removal date which renders the judicial review application moot, but the happening of the event. This characterization of whether removal is reasonably practicable prior to the happening of the event is entirely consistent with the enforcement officer’s mandate under section 48 of the IRPA to execute a removal order as soon as reasonably practicable. It is this characterization of the controversy that the Applications Judge should have adopted, and erred in failing to do so.\n\nSince the appellants’ H&C application had not been dealt with at the time of the hearing before the learned Applications Judge [and I am not aware of any determination having been made since Dawson J. rendered her decision], the parties take the position that the controversy still exists between them and thus that the matter is not moot.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-13", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 31–33", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, the parties have properly characterized the nature of the controversy which exists between them. I find support for this view in the Reasons given by Strayer D.J. in Amsterdam v. M.C.I., 2008 FC 244, where he dismissed an application for judicial review of the decision of an enforcement officer who had refused to defer the applicant’s removal from Canada. Although Strayer J. was of the view that on the facts before him, the judicial review application was moot, he nonetheless exercised his discretion to decide the application on its merits.\n\nIn Amsterdam, supra, the applicant was scheduled to be removed from Canada on June 6, 2007. On May 31 of that year, he sought a deferral of his removal so as to allow him to attend a Family Court conference scheduled for July 31, 2007, and to see a medical specialist with whom he had an appointment on September 27, 2007. Notwithstanding this information, the enforcement officer advised the applicant on June 4, 2007, that it would not be appropriate to defer his removal from Canada.\n\nOn June 5, 2007, the applicant filed an application for leave and for judicial review and he applied for a stay of removal, which was successful. Leave to commence a judicial review application was subsequently granted and the application on its merits was heard by Strayer J. on February 12, 2008.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-14", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 34–35", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "As I indicated earlier, Strayer J. believed that the application was moot. At paragraph 11 of his Reasons, he said the following: [11] I am satisfied that the judicial review of the Enforcement Officer’s refusal to defer removal is moot due to a stay having been issued by this Court to permit the Applicant’s presence in Canada for two events which have long since passed, the very events for which delay was refused in the decision under review. The evidence put before the Court was that it was necessary that the Applicant remain in Toronto to be present at a Family Court Case Conference in the Ontario Superior Court set for July 31, 2007 and for an appointment with a specialist which, by the date of the stay hearing, had been fixed for September 27, 2007. [Emphasis added]\n\nAs I also indicated earlier, Strayer J. then went on, notwithstanding his view on the mootness issue, to deal with the merits of the application. After concluding that the enforcement officer’s decision was not unreasonable, he dealt with a request by the applicant that he certify a question very similar to the one certified in this appeal. The question read as follows: Where an applicant has filed an application for leave and judicial review of a decision not to defer the implementation of a Removal Order outstanding against him or her, does the fact that the applicants’ removal is subsequently halted by operation of a stay Order issued by this Court render the underlying judicial review application moot?", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-15", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 36–37", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Strayer J. was of the view that the above question ought not to be certified. In so concluding, he gave the following explanation at paragraph 15 of his Reasons: [15] Nevertheless, I am not prepared to certify such a question. In the first place if I did, and an appeal were taken, an answer to this question would not be determinative of this case because I have determined that the judicial review should also be dismissed on its merits apart from being moot. Secondly, with respect I do not think it is a serious question requiring an answer. There seems to be a wide measure of consensus in this Court, indicated in the cases cited above, that such a question should be answered in the affirmative. I find it hard to see how it could be otherwise: if the complaint in the judicial review is that the Enforcement Officer did not defer removal until the occurrence of some event which the Applicant considered justified the deferral, and as a result of a stay granted by this Court that event has in the meantime occurred. In such circumstances there can be no practical effect of a judicial review decision. [Emphasis added]\n\nAs I understand Strayer J.’s Reasons, it is the passing of the events in respect to which the applicant was seeking a deferral of his removal, i.e. a Family Court conference and a medical appointment, which rendered the judicial review application moot. In those circumstances, as Strayer J. says above, “… there can be no practical effect of a judicial review decision”. I cannot but agree with that statement in light of the facts before the learned Judge. It is clear, however, that Strayer J. did not conclude that the application before him was moot simply because the removal date had come and gone, which is the position adopted by the Applications Judge.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-16", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 38–40", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus, in my view, since the event which the appellants invoke in seeking a deferral has not occurred, I cannot see how it can be said that there is no existing controversy between the parties and that no practical effect can result from a decision on the judicial review. While the specific timing of the removal arrangements which had been made prior to the issuance of the stay by O’Keefe J. is no longer valid, this does not, in my respectful view, render the issues raised in the judicial review application moot. The concrete or real controversy between the parties, i.e. the execution of the removal order prior to the determination of the appellants’ H&C application, remains alive.\n\nI will briefly examine what effect a decision on the merits of the appellants’ judicial review application might have. Prior to such a determination, the appellants could not be removed by reason of the stay granted by O’Keefe J. However, different consequences will follow, depending on the determination of the application.\n\nShould this Court decide the judicial review in favour of the appellants, the matter would then be remitted to an enforcement officer for redetermination in the light of the Court’s Reasons. On redetermination, the enforcement officer might grant the request for deferral until the H&C application has been dealt with. As a result of such a determination, the appellants would not be removed until a negative decision, if that be the case, had been rendered on their H&C application. On the other hand, the enforcement officer might again refuse to defer removal and the appellants might challenge that decision by way of a new judicial review application.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-17", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 41–43", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Should the Court dismiss the judicial review application on its merits, the stay order would no longer be in effect and a new removal date would most likely be scheduled. While it is true that the appellants could once again ask the enforcement officer for a deferral, new facts, in my view, would have to be put forward, failing which the likely scenario is that the enforcement officer would dismiss the request for deferral. It is also possible that absent new facts, the appellants would not seek a deferral and would leave Canada.\n\nI might add that should the appellants, in the absence of additional material facts, seek a deferral which results in a refusal by the enforcement officer, and should the appellants, in those circumstances, seek to obtain leave to commence a judicial review application and to obtain a stay of removal, it would certainly be open to the Federal Court to take the view that the appellants’ proceedings constitute an abuse of process and deal with those proceedings accordingly.\n\nI am therefore of the view that should this Court dispose of the judicial review application on its merits, it cannot be said that the parties would be in the same position as if the Court had dismissed the application for mootness. I would also add that mootness does not necessarily follow because a decision on the merits will not entirely settle the debate between the parties.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-18", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 44–46", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "A final comment on this issue. In Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, at paragraphs 29 to 42, the Supreme Court identified three factors that a court should consider in deciding whether or not to exercise its discretion to hear the merits of an action or an application for judicial review which it finds to be moot: (1) the existence of an adversarial relationship between the parties; (2) the concern for judicial economy; and (3) the need for the court not to intrude into the legislative sphere.\n\nIn the present matter, it is undisputed that there remains an adversarial relationship between the parties with respect to the execution of a removal order prior to the determination of an H&C application. With respect to judicial economy, a decision from this Court on whether or not a pending H&C application and the interests of Canadian-born children in that specific context warrant a deferral of removal will certainly provide guidance to parties in future cases as well as to the parties in this appeal. Furthermore, these cases are of a recurring nature, in that the dismissal of a judicial review application for mootness means that the case will be returned to the enforcement officer to set a new date for removal, which will likely trigger a new request for deferral of removal and potentially a new application for a stay of removal. Lastly, a decision on the merits of the application will clearly not intrude into the legislative scheme.\n\nBearing in mind the factors identified by the Supreme Court in Borowski, supra, had I been of the view that the application was moot, I would have had no hesitation in deciding that this Court ought to deal with the merits of the application.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-19", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 47–48", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "I now turn to the second issue. C. Did the Enforcement Officer Err in Refusing to Defer the Appellants’ Removal from Canada Pending a Determination of Their Outstanding H&C Application?\n\nIn dealing with the enforcement officer’s discretion to defer removal pursuant to section 48 of the Act, it is important to keep in mind the wording of that provision, which is as follows: 48. (1) A removal order is enforceable if it has come into force and is not stayed. (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as soon as is reasonably practicable. [Emphasis added] 48. (1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis. (2) L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être appliquée dès que les circonstances le permettent. [Non souligné dans l’original] Thus, where a removal order is enforceable, any person subject thereto must leave the country and the enforcement officer is bound to enforce the order “as soon as is reasonably practicable”.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-20", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 49–50", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is trite law that an enforcement officer’s discretion to defer removal is limited. I expressed that opinion in Simoes v. Canada (M.C.I.), [2000] F.C.J. No. 936 (T.D.) (QL), 7 Imm.L.R. (3d) 141, at paragraph 12: [12] In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is \"reasonably practicable\" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. For instance, in this case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000. Furthermore, in my view, it was within the removal officer’s discretion to defer removal until the Applicant’s eight-year old child terminated her school year.\n\nI further opined that the mere existence of an H&C application did not constitute a bar to the execution of a valid removal order. With respect to the presence of Canadian-born children, I took the view that an enforcement officer was not required to undertake a substantive review of the children’s best interests before executing a removal order.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-21", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 51", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Subsequent to my decision in Simoes, supra, my colleague Pelletier J.A., then a member of the Federal Court Trial Division, had occasion in Wang v. Canada (M.C.I.), [2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the execution of a removal order, to address the issue of an enforcement officer’s discretion to defer a removal. After a careful and thorough review of the relevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the boundaries of an enforcement officer’s discretion to defer. In Reasons which I find myself unable to improve, he made the following points: - There are a range of factors that can validly influence the timing of removal on even the narrowest reading of section 48, such as those factors related to making effective travel arrangements and other factors affected by those arrangements, such as children’s school years and pending births or deaths. - The Minister is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect this imperative of the Act. In considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicants are successful in their H&C applications, they can be made whole by readmission. - In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-22", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 51–53", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety. - Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application. I agree entirely with Mr. Justice Pelletier’s statement of the law.\n\nWith these principles in mind, I now turn to the enforcement officer’s decision.\n\nIt is clear from the enforcement officer’s decision that she considered all of the relevant facts which were before her. First, she addressed the fact that the appellants had a pending H&C application. She correctly noted that the filing of such an application, at a late stage in the removal process, was not per se an impediment to removal. She remarked that the appellants had been informed in 2004 that no H&C application had been filed by them, contrary to what they apparently believed, and that they waited until 2006 to make their application. As a result, she was of the view that deferral on that ground was not warranted.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-23", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 54–56", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "The enforcement officer then turned her attention to the best interests of the children. She was of the view that if the children left Canada with their parents, “any kind of emotional disturbance the children may suffer due to their removal from Canada will likely be one of a temporary nature”. She also noted that the children were young and that they could easily adapt to a new environment. She also noted that no evidence had been adduced that the children could not enrol in an English medium school where they could learn English as a first or second language. Lastly, she indicated that since both parents would be present in the children’s lives in Argentina and that the appellants’ parents also lived in Argentina, the children would have adequate emotional support and an existing support base in their new country.\n\nThe enforcement officer concluded her decision by making it clear that had there been a true impediment to removal or if a decision on the H&C application had been imminent, she would have granted a deferral.\n\nIn making their submission that the enforcement officer made reviewable errors, the appellants make the following points.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-24", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 57", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "With respect to the best interests of the children, they state that the officer ought to have deferred their removal pending the determination of their H&C application so as to fulfill Canada’s obligations under the Convention on the Rights of the Child. In my view, this argument is without merit. The enforcement officer considered the children’s best interests and concluded that no serious practical impediment existed to prevent removal of their parents to Argentina. The fact that the appellants intend to take their children with them to Argentina and that the children might not be able to return until their parents regularize their status in Canada or until they become adults is not, in my view, an impediment to the removal of the parents. The jurisprudence of this Court has made it clear that illegal immigrants cannot avoid the execution of a valid removal order simply because they are the parents of Canadian-born children (see: Legault v. M.C.I, 2002 FCA 125, para. 12; see also with respect to international law: Baker, supra; Langner v. M.E.I., [1995] F.C.J. No. 469 (C.A.) (QL)). I might add that the officer went further than required in her consideration of the children’s best interests. As I stated in Simoes, supra, an enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order. I believe that Pelletier J.A.’s Reasons in Wang, supra, support this view.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-25", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 58–59", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "With respect to their pending H&C application, the appellants submit that the enforcement officer erred in failing to have regard to the special circumstances surrounding their application. They say that the issue was not whether they had submitted an application in 2003 or 2004, but rather that they had attempted, through their former attorney, to submit such an application in March 2003, adding that for reasons unknown to them, the application had never been received in Vegreville. They also say that it is only in 2006 that they became aware of the fact that their March 2003 application had never been received. The appellants further point out that a new delay occurred when a second application in September 2006 was returned to them by reason of insufficient funds, which application they resubmitted in early December 2006. It is for these reasons, the appellants submit, that their attorneys requested that their H&C application be expedited because of almost a four year delay due to no fault on their part.\n\nThus, in the appellants’ submission, the enforcement officer asked herself the wrong question when she focussed her attention on whether the “original” H&C application had been submitted in 2003 or 2004, and on the fact that their second application had been filed late in the day.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-26", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 60–63", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, these arguments cannot succeed. First, I have not been persuaded that the enforcement officer made a reviewable error in her review and consideration of the evidence. What the appellants are asking us, in effect, is to reassess the evidence so as to reach a different conclusion. In my view, that is not open to us. Second, in the light of the principles enunciated in both Simoes, supra and Wang, supra, I fail to see on what ground this Court could interfere with the enforcement officer’s decision.\n\nI therefore conclude that the enforcement officer’s decision to refuse deferral of the appellants’ removal from Canada was reasonable and that the decision must stand.\n\nThis is sufficient to dispose of the appeal. However, before concluding, I feel compelled to make a few additional remarks.\n\nIt is important to note that in concluding that a deferral was not warranted in the circumstances before her, the enforcement officer emphasized the fact that the appellants had failed to report for their pre-removal interviews of January 21, 2006. The enforcement officer also emphasized the fact that it had been necessary to issue warrants against the appellants, which were executed in March and July of 2006. She could also have emphasized the fact that the appellants, in order to delay their removal scheduled for January 18, 2007, had undertaken to leave the country with their children on February 15, 2007, which undertaking they failed to respect. The enforcement officer could have also considered relevant the fact that the departure orders made against the appellants at the time they filed their refugee claims had become effective on May 30, 2002.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-27", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 64", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Events of this type, i.e. where persons fail to comply with the requirements of the Act or act in a way so as to prevent the enforcement thereof, should always be high on the list of relevant factors considered by an enforcement officer. It is worth repeating what this Court said at paragraph 19 of its Reasons in Legault, supra. Although the issue before the Court in Legault, supra, pertained to the exercise of discretion in the context of an H&C application, the words of Décary J.A. are entirely apposite to the exercise of discretion by an enforcement officer: [19] In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. [Emphasis added]", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-28", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 65", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus, if the conduct of the person seeking a deferral of his or her removal either discredits him or creates a precedent which encourages others to act in a similar way, it is entirely open to the enforcement officer to take those facts into consideration in determining whether deferral ought to be granted. Neither enforcement officers nor the courts, for that matter, should encourage or reward persons who do not have “clean hands”.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-29", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 66", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "One last remark. In her discussion of the mischief which might arise as a result of the view that applications such as the one before us in this appeal are moot by reason of the passing of the scheduled removal date, Madam Justice Dawson made a number of highly relevant remarks. One of these remarks is found at paragraph 65 of her Reasons, where she says: [65] Further, the potential for abuse will be mitigated significantly by the Court's continued discipline when considering stay requests and, where a stay is granted, by careful consideration by the CBSA, before new removal arrangements are made, of the serious issue identified by the Court. It should be remembered that, for a stay to be granted, the Court will have identified at least one issue that carries with it the likelihood of success on the underlying application. It is not enough for the Court to simply find that an issue is not frivolous or vexatious. (See: Wang, cited above). […] [Emphasis added] These comments take me back to Pelletier J.A.’s Reasons in Wang, supra, where he dismissed the motion before him for a stay of removal because the applicant had not satisfied him that the underlying application raised a serious issue. This conclusion was the result of his view that on such a motion, in determining the “serious issue” prong of the tripartite test enunciated in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 (and adopted by this Court for the purposes of determining applications for a stay of removal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587), the Judge ought to “go further and closely examine the merits of the underlying application” (paragraph 10 of his Reasons).", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-30", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 66–68", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "In other words, the Judge should take a hard look at the issue raised in the underlying application.\n\nWhile I agree entirely with my colleague’s approach to the “serious issue” prong of the tripartite test in the context of a motion to stay a removal order, I would add the following. In determining whether a serious issue exists so as to warrant the granting of a stay of removal, the Judge hearing the motion should clearly have in mind, first of all, that the discretion to defer the removal of a person subject to an enforceable removal order is limited, as explained in Simoes, supra, and, particularly, in Wang, supra. Second, the Judge should also have in mind that the standard of review of an enforcement officer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such a decision, he or she must be able to put forward quite a strong case. In my view, the appellants herein clearly did not have such a case to put forward.\n\nHad O’Keefe J. turned his mind to the limited nature of the enforcement officer’s discretion and to the applicable standard of review, he would not have concluded that the judicial review application raised a serious issue and, hence, would not have granted a stay.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-31", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 69–72", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is also clear, in my respectful opinion, that there was no basis for him to conclude that irreparable harm would occur if the removal order was not stayed. As this Court and the Federal Court have constantly repeated, one of the unfortunate consequences of a removal order is hardship and disruption of family life. However, that clearly does not constitute irreparable harm. To paraphrase the words of Pelletier J.A. found at paragraph 88 of his Reasons in Wang, supra, family hardship is the unfortunate result of a removal order which can be remedied by readmission if the H&C application is successful. Further, the fact that the appellants’ children might have to pursue their education in Spanish, because of their parents’ removal to Argentina, clearly does not constitute irreparable harm.\n\nAs a result, I would dismiss the appeal and I would answer the certified question as follows: Because the underlying application for landing remains outstanding at the date the Court considers the application for judicial review, there remains a “live controversy” between the parties and, as a result, the matter is not rendered moot by the passing of the scheduled removal date. “M. Nadon” J.A. “I concur. Alice Desjardins J.A.” BLAIS J.A. (Reasons concurring in the result)\n\nI have read the reasons of my colleague, Nadon J.A., and I respectfully disagree in part.\n\nI will rely on the facts as presented by the Federal Court judge, Justice Dawson, and my colleague in lieu of reproducing them here.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-32", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 73–76", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "With respect to my colleague’s analysis of the enforcement officer’s refusal to defer the appellants’ removal, I agree. The determination made by the enforcement officer was well within her narrow discretion, was well reasoned and was within the parameters of previous statements of this Court and the Court below.\n\nWith respect to my colleague’s strong statement regarding the granting of a stay on the basis that the pending judicial review of the enforcement officer’s refusal constituted a serious issue, I firmly agree with both my colleague and with Justice Dawson. Recently, claimants have entered into an abusive cycle of deferral requests, judicial review applications and stay of removal applications. This abusive cycle can be mitigated if judges considering stay applications properly determine whether a serious issue exists by reviewing the judicial review application for at least one issue with a probability of success. The judicial review underlying the application for a stay of removal in this case reveals little probability of success considering the enforcement officer’s discretion and the ample support she cites in her reasons. The decision granting the appellants’ stay has caused them to remain in Canada for an additional two years, allowing for their children to become more settled and for adaptation to be more difficult should the appellants and their children to return to Argentina.\n\nWith respect, I must disagree with my colleague’s conclusion in regards to the certified question of mootness.\n\nThe parties argue, and my colleague agrees, that the characterization of the root controversy of the judicial review involves whether the appellants should be removed prior to the determination of their pending humanitarian and compassionate (H&C) application.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-33", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 77–78", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "While it is true that the bases of the appellants’ deferral request were the best interest of their children and the determination of their H&C application, the decision for review in this case is whether the enforcement officer properly refused to defer the appellants’ removal in January, 2007. It is not whether the enforcement officer properly determined that the removal would at no time take place before the determination of the H&C application. This is clear from the enforcement officer’s notes to file, where she wrote: In conclusion, this officer realizes that she has limited discretion to defer removal. She would do so if there is [sic] an impediment to removal or if a decision was imminent on the H&C application. However, this is not the case.\n\nIt is of no consequence to determine whether the enforcement officer properly refused the request to defer in January, 2007 since that removal date has passed. In addition, the circumstances will have changed such that the enforcement officer’s conclusions may no longer be pertinent to the facts as they now stand. In my view, Justice Dawson was correct in characterizing the dispute as whether the appellants should have been required to leave on the scheduled removal date. Further, since the granting of a stay has allowed the appellants to receive the deferral that the enforcement officer refused, the review of the enforcement officer’s decision will not change the factual consequence.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-34", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 79–80", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "The parties argue that the controversy is whether the appellants should be removed prior to the determination of the H&C application. However, this was not the question before the enforcement officer. In fact, the conclusion of the enforcement officer regarding the lack of imminence of a determination on the H&C application makes it clear that her decision was temporally based.\n\nBy virtue of section 48(2) of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 29 (IRPA), once a “removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.” I agree with my colleague that jurisprudence is conclusive that the enforcement officer’s discretion is limited. However, ultimately an enforcement officer is intended to do nothing more than enforce a removal order. While enforcement officers are granted the discretion to fix new removal dates, they are not intended to defer removal to an indeterminate date. On the facts before us, the date of the decision on the H&C application was unknown and unlikely to be imminent, and thus, the enforcement officer was being asked to delay removal indeterminately. An indeterminate deferral was simply not within the enforcement officer’s powers. (my emphasis)", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-35", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 81–83", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Over the years, the duties of enforcement officers have not changed, and yet, the bases upon which applicants rely to obtain deferrals have dramatically increased. I am of the view that the scope of the enforcement officer’s discretion cannot be changed by virtue of the requests made. An enforcement officer’s role is not to assess the best interests of the children or the probability of success of any application. An enforcement officer’s role should remain limited and deferral should be contemplated in very limited circumstances.\n\nThe legislation has not, to my knowledge, provided a new step to claimants who desire yet another assessment of their circumstances. Claimants already have the refugee application process, the pre-removal risk assessment (PRRA) process and the H&C application in addition to judicial reviews of those processes and the stay before removal.\n\nIn this case, it appears that the claimants want to open yet another avenue of review by asking the enforcement officer to reassess information that has already been examined by administrative tribunals and that was the subject of judicial review. For the enforcement officer to comply with this request for reassessment would be akin to the enforcement officer making a quasi-judicial order without the benefit of hearing from opposing counsel. It’s time to stop this abusive cycle.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-36", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 84–85", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "To further illustrate why the question before Justice Dawson was moot, consider the following hypothetical situation: if Justice O’Keefe had not granted the stay, and the appellants had been removed to Argentina, the judicial review before Justice Dawson would still have proceeded. Seeing as the appellants had already been removed on the scheduled removal date, Justice Dawson would likely still determine that the issue was moot, for the decision regarding the specified date had passed. But, if instead of making a finding of mootness, Justice Dawson found that the enforcement officer had made an error in not deferring the removal date, what would be the result? Would the appellants be permitted to return to Canada just for a second removal date to be set to have them removed? Would they request yet another deferral from a second enforcement officer? The possibility risks nonsense.\n\nThe more likely consequence is that the appellants would wait in Argentina for a determination of their H&C application and, if the application is successful, would be readmitted.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-37", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 86", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Under subsection 11(1) of the IRPA, a foreign national wishing to establish permanent resident status must apply for a visa before entering Canada. The IRPA makes it clear that H&C applications are intended to be used only as exceptions to this requirement. H&C applications are meant to allow for an application to be processed from within Canada where the Minister considers that humanitarian and compassionate grounds make this exemption justified: 25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. (2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national. 25.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-38", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 86–88", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative ou sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient. (2) Le statut ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.\n\nH&C applications are not intended to obstruct a valid removal order. Where a PRRA has revealed that the applicants are not at risk if they are returned, then the applicants are intended to make future requests for permanent residence from their home country.\n\nIn the appellants’ case, the H&C application is still pending. It is my view that this still does not prevent their removal. Removing the appellants will not cause irreparable harm to them or their Canadian-born children. Should a new removal date be scheduled, the appellants are likely to ask the enforcement officer for a deferral. I believe my colleague’s indication that new facts would need to be put forward to support such a request is optimistic. These appellants have continued to raise the same arguments throughout their dealings with immigration officials in Canada and the likelihood that they will continue to raise these arguments, or versions thereof consistent with the passing of time, is high.", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-36347-39", - "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 89", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", - "part": "Federal Court of Appeal", - "division": "", - "text": "Therefore, I would dismiss this appeal with costs and answer the certified question as follows: The removal date having passed, the determination of the reasonableness of the enforcement officer’s refusal to defer the removal date in January 2007 is without consequence and therefore the matter is rendered moot. “Pierre Blais” J.A. FEDERAL COURT OF APPEAL", - "current_to": "2009-03-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" - }, - { - "id": "fca-520921-1", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 1–3", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Maria Camila Galindo Camayo is a citizen of Colombia. As a child, she and members of her family were found to be people in need of protection in Canada, based upon her mother having been targeted for extortion by the Fuerzas Armadas Revolucionarias de Colombia.\n\nWhen it came to the attention of the Minister of Citizenship and Immigration that Ms. Galindo Camayo had used a Colombian passport to take numerous trips to Colombia and other countries, the Minister commenced an application for the cessation of her protected person status. The Refugee Protection Division (RPD) of the Immigration and Refugee Board found that Ms. Galindo Camayo had voluntarily reavailed herself of the diplomatic protection of Colombia. As a result, the Minister’s application was granted, and Ms. Galindo Camayo’s claim for protection was deemed to have been rejected.\n\nIn reasons reported as 2020 FC 213, the Federal Court set aside the RPD’s decision on the basis that the RPD’s finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unreasonable. The Federal Court ordered that the matter be remitted to a differently constituted RPD panel for redetermination. The Federal Court did, however, certify the following questions: 1) Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27, c.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-2", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 3–5", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "27 (“IRPA”)] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? 2) If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? 3) If yes to Question 1, can evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] be relied on to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nI understand from the parties that the first question is no longer in issue as this Court has previously held that a minor who obtains refugee protection as a dependant under a parent’s claim is indeed subject to the same immigration consequences as the parent claimant: Canada (Minister of Citizenship and Immigration) v. Tobar Toledo, 2013 FCA 226.\n\nInsofar as the second question is concerned, the Minister asserts that the Federal Court erred in finding the RPD’s decision to be unreasonable. The Federal Court found that Ms. Galindo Camayo’s lack of knowledge of the Canadian immigration consequences of travelling internationally using a Colombian passport was sufficient to rebut the presumption of intent to reavail. According to the Minister, the state of the individual’s knowledge is not the legal test for cessation nor is it a factor for consideration under that test.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-3", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 6–8", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "With respect to the third question, the Minister observes that refugee protection is available to individuals who can establish on a balance of probabilities that they would be at risk of facing persecutory treatment in their country of nationality. Implicit in such a finding is that the person cannot protect themselves from their agent of persecution or obtain such protection anywhere in that country. It is therefore inconsistent with a finding that a person is in need of protection for the individual to later claim that they are able to protect themselves sufficiently as to allow them to return to their country of nationality. The Minister says that the Federal Court thus erred in considering the fact that Ms. Galindo Camayo obtained private security while she was in Colombia as evidence that she did not intend to reavail herself of the protection of the state.\n\nFor the reasons that follow, I have concluded that the Federal Court did not err in finding that the Board’s decision was unreasonable. Consequently, I would dismiss the appeal. I would only answer the second and third questions and I would answer them in the affirmative.\n\nMs. Galindo Camayo was a minor when she arrived in Canada. She received protected person status in Canada in 2010, when she was 15 years old (for the sake of simplicity, the terms “person in need of protection”, “protected person”, and “refugee” will be used interchangeably in these reasons). Ms. Galindo Camayo returned to Colombia five times since 2010, taking her last trip in late 2016 and early 2017, when she was a 21-year-old college student.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-4", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 9–12", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Ms. Galindo Camayo travelled on a Colombian passport on each of these occasions. She initially used the passport that her mother had obtained for her. However, she turned 18 during her second trip to Colombia and she was advised by Colombian authorities that she had to apply for an adult passport in order to be able to return to Canada. Ms. Galindo Camayo received a new adult Colombian passport in August of 2013, returning to Canada shortly thereafter.\n\nIn addition to the five trips to Colombia that Ms. Galindo Camayo took after receiving protected person status, she visited Mexico three times, and she took trips to the United States and Cuba. Ms. Galindo Camayo travelled on her Colombian passport on each occasion.\n\nOn January 27, 2017, the Minister applied to cease Ms. Galindo Camayo’s protected person status, pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Subsection 108(2) provides that “[o]n application by the Minister, the Refugee Protection Division may determine that refugee protection … has ceased for any of the reasons described in subsection (1)”.\n\nParagraph 108(1)(a) of IRPA provides that “[a] claim for refugee protection shall be rejected, and a person is not … a person in need of protection … [if] the person has voluntarily reavailed themself of the protection of their country of nationality”. The full text of these and other relevant statutory provisions is attached as an appendix to these reasons.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-5", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 13–16", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister asserts that Ms. Galindo Camayo had voluntarily and intentionally reavailed herself of the protection of her country of nationality by obtaining a Colombian passport and by using it to travel to Colombia and elsewhere. As a result, the Minister says that Ms. Galindo Camayo’s claim for protected person status should be deemed to have been rejected.\n\nMs. Galindo Camayo argued before the RPD that she did not voluntarily reavail herself of Colombia’s protection under section 108 of IRPA by acquiring Colombian passports. It was her mother, and not Ms. Galindo Camayo herself, who had applied for her first passport while she was still a minor, and Ms. Galindo Camayo was compelled to obtain her second Colombian passport in 2013 in order to be able to return to Canada.\n\nMs. Galindo Camayo testified that she travelled to Colombia to assist her sick father and to volunteer for a humanitarian mission, and that she did not understand the consequences of her travel for her status in Canada. Ms. Galindo Camayo further stated that she did not avail herself of Colombia’s protection while she was there, as she hired armed private security guards to provide her with protection during each of her trips.\n\nThe RPD agreed with the Minister, finding that Ms. Galindo Camayo had voluntarily reavailed herself of Colombia’s protection as described in paragraph 108(1)(a) of IRPA. The Minister’s application for the cessation of Ms. Galindo Camayo’s status as a protected person was therefore allowed, and her claim for protection was deemed to have been rejected in accordance with subsection 108(3) of IRPA.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-6", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 17–19", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In coming to the conclusion that the Minister’s application should be granted, the RPD only focused on the cessation principles discussed in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UNHCR, 2019, UN Doc. HCR/1P/4/ENG/REV.4 (Refugee Handbook). Although it acknowledged (at para. 19) that it was “not bound” by the Refugee Handbook and the guidelines set out in it, the RPD found them “useful and relevant”.\n\nThe RPD noted that in accordance with Article 1C(1) of the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137 (Refugee Convention) there are three implied criteria to be considered in determining whether cessation had occurred. These are: (1) Voluntariness: The refugee must have acted voluntarily; (2) Intention: The refugee must have intended by his or her actions to reavail him or herself of the protection of their country of nationality; and (3) Reavailment: The refugee must actually obtain state protection.\n\nIn reality, when the RPD decision is examined in its totality in light of the record before it, it is clear that the RPD fastened onto the Refugee Handbook and the particular wording of the Refugee Handbook as if it was domestic law that was binding on the RPD. At paragraph 17 of its reasons, the RPD set out the text of section 108 of IRPA, but it did not interpret it. Indeed, at no time did the RPD attempt to interpret section 108 by examining its text, context and purpose.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-7", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 20–22", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Accepting that on a proper interpretation of section 108 of IRPA the three criteria of voluntariness, intention and reavailment are part of the inquiry required by law, what do these terms mean? For example, what acts or statements are relevant to voluntariness or intention?\n\nThe questions can multiply and become more focused, especially in a fact-laden case such as the one at bar. Is the RPD to look solely at the actual subjective intention of the relevant individual and accept it, or is the RPD able to import an objective element into the analysis, such as the reasonableness of the actions and intentions of the relevant individual? These and other questions that can arise in a particular case involve questions of statutory interpretation: exactly when does section 108, properly interpreted, apply to allow the RPD to deem a person’s claim for refugee protection to have been rejected?\n\nInsofar as the question of voluntariness was concerned, the RPD accepted that Ms. Galindo Camayo did not act voluntarily in obtaining her Colombian passports. Her first passport was acquired by her mother when she was a minor, which was a matter outside Ms. Galindo Camayo’s control, and she was compelled to obtain her second Colombian passport in order to be able to leave the country.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-8", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 23–24", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The RPD asserted, however, without any analysis of the requirements of section 108, that the acquisition of passports is not the only relevant factor to consider in assessing the voluntariness of Ms. Galindo Camayo’s actions, and that her use of those passports also had to be considered. In this regard, the RPD found that Ms. Galindo Camayo acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016, and there was insufficient evidence before it to establish that Ms. Galindo Camayo was compelled to use her Colombian passports to take any of these trips.\n\nWith respect to the question of Ms. Galindo Camayo’s intention in using her Colombian passports, the RPD was concerned with respect to her evidence regarding the need for her to care for her father in Colombia. It observed that Ms. Galindo Camayo’s father (who was a permanent resident of Canada) was actually in Canada during one of the periods that Ms. Galindo Camayo was in Colombia, purportedly caring for him there, and that he had visited Canada on numerous other occasions. The RPD further noted that Ms. Galindo Camayo claimed that her father had stayed in Colombia rather than come to Canada with the rest of his family, as he did not want to impose a burden on his family. It found, however, that this assertion was undermined by the fact that her father’s conduct regularly exposed Ms. Galindo Camayo to a dangerous situation in Colombia, thus imposing a significant burden on her.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-9", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 25–28", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Notwithstanding its concerns with respect to Ms. Galindo Camayo’s evidence on this point, the RPD did not find in clear and unmistakeable terms that her evidence lacked credibility: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199 (F.C.A.). Thus, the facts the RPD had to work with were those presented by the parties, and the case turned solely on whether the facts met the requirements of section 108.\n\nIn the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 means. I will return to these assertions later on in these reasons.\n\nThe RPD thus found that the Minister had established that Ms. Galindo Camayo had acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016. The Minister had further established that Ms. Galindo Camayo had intended by her actions to reavail herself of Colombia’s protection as contemplated by paragraph 108(1)(a) of IRPA, and that she had in fact done so.\n\nConsequently, the RPD allowed the Minister’s application for cessation and Ms. Galindo Camayo’s protection claim was deemed to have been rejected.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-10", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 29–31", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Federal Court was satisfied that the RPD had reasonably found that while Ms. Galindo Camayo’s acquisition of her Colombian passports was involuntary, her subsequent use of them to return to Colombia and to travel to other countries was voluntary. The Federal Court further found that the RPD had reasonably relied on the presumption of reavailment—both with respect to Ms. Galindo Camayo’s intention to reavail, and whether she actually had reavailed. The RPD also observed that the presumption of reavailment arises when a protected person acquires, renews, or uses a passport issued by their country of nationality.\n\nHowever, the Federal Court observed that the presumption of reavailment is a rebuttable one. The RPD thus had to consider whether Ms. Galindo Camayo had rebutted the presumption in this case. The Federal Court identified the question for determination as being whether the RPD had reasonably considered Ms. Galindo Camayo’s subjective intent to reavail and her efforts to obtain private security to protect her during her visits to Colombia as evidence that could rebut the presumption of reavailment.\n\nThe Federal Court noted that the outcome in each cessation case will be largely fact-dependent. However, by interpreting Ms. Galindo Camayo’s use of her passport as satisfying all three essential and conjunctive elements of the reavailment test (voluntary, intentional, and actual reavailment), no room was left for Ms. Galindo Camayo to demonstrate that despite her acquisition and use of her Colombian passport, she did not intend to avail herself of the protection of the state. In other words, intention in the cessation context cannot be based solely on intending to complete the underlying act itself; one also has to understand the consequences of one’s actions.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-11", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 32–36", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "As can be seen, the Federal Court developed its own view of section 108 and how it should operate, and then applied it to the RPD’s decision. In so doing, it departed from its role as a reviewing court and delved into issues that were for the RPD to consider.\n\nIn the end result, the Federal Court granted Ms. Galindo Camayo’s application for judicial review, certifying the three questions identified at the beginning of these reasons.\n\nAs noted earlier, the first of the questions certified by the Federal Court is no longer in issue. The second question was not appropriate for certification in its original form, as its premise does not fully accord with the facts of this case.\n\nIt will be recalled that the second question certified by the Federal Court was: If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? [my emphasis]\n\nIt is undisputed that Ms. Galindo Camayo did not just use her Colombian passport to travel to third countries, but that she also used it to travel to Colombia on five separate occasions. Consequently, I would first reformulate this question as follows: Can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection?", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-12", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 37–39", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is well established that the certification requirement in subsection 74(d) of IRPA is to serve as a control on the types of cases that can be placed before this Court. However, once a question is certified for the consideration of this Court, this Court is entitled to deal with all of the issues that arise in the appeal: Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para. 28; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at para. 50.\n\nOften, as here, the central issue before the reviewing court is whether the RPD’s decision was reasonable. In an appeal from a decision of the Federal Court in an application for judicial review, this Court’s task is to determine first, whether the Federal Court identified the appropriate standard of review, and second, whether it properly applied that standard: Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47. This has often been described as requiring that this Court “step into the shoes” of the Federal Court judge, and focus on the administrative decision. This is the approach to be followed even where the Court is dealing with questions of general importance that have been certified by the Federal Court: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44 (Kanthasamy SCC).\n\nI understand the parties and the interveners to agree that the Federal Court correctly identified reasonableness as the standard to be applied in reviewing the RPD’s cessation findings. The focus is therefore on the way that the Federal Court applied the reasonableness standard to the RPD’s decision.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-13", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 40–41", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, the fact that we have certified questions before us gives rise to an awkward situation. Certified questions generally raise questions of law, including, as in this case, questions of statutory interpretation. However, the questions, as phrased by the Federal Court, require a yes or no answer. This invites correctness review by this Court. That said, as described above, this Court is required to engage in reasonableness review on questions of statutory interpretation. This creates the possibility that, in some cases, this Court may find the RPD’s interpretation of a statutory provision to be reasonable, yet this Court may say something entirely different in providing its own view of the matter in answering the certified question—something that the Supreme Court expressly tells us not to do: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 83 (Vavilov SCC), citing Delios v. Canada (Attorney General), 2015 FCA 117 at para. 28.\n\nThis Court raised this awkward situation—the misfit between answering the certified question properly and conducting reasonableness review—in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paragraphs 30 to 37. One solution suggested by this Court in Kanthasamy was to regard the Court’s need to answer certified questions as a statutory indication that correctness should be the standard of review. This solution would seem to gain greater credence now that the Supreme Court has held that statutory standards can have a bearing on the standard of review: Vavilov SCC at paras. 34-35.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-14", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 42–44", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nevertheless, the Supreme Court subsequently confirmed that certified questions are not decisive of the standard of review, and that reasonableness should remain the standard of review applied by this Court: see Kanthasamy SCC, above at paras. 43-44. The Supreme Court appeared to recognize that this effectively renders the answer to the certified question mere surplusage, relegating the role of such questions to fulfilling a gatekeeping function.\n\nThis situation was replicated in Vavilov. The certified question in Vavilov v. Canada (Minister of Citizenship and Immigration), 2017 FCA 132 posed a yes-no question. This Court conducted a reasonableness review of the administrative decision but gave a precise answer, akin to a correctness review answer, to the question. In dismissing the appeal, the Supreme Court in effect ratified how this Court approached the certified question.\n\nThe potential misfit between reasonableness analysis and the definitive correct answer required by a certified question can, however, be avoided if the Federal Court were to formulate certified questions in a manner that asks whether a particular statutory interpretation or approach is reasonable. In this case, the second and third questions, as stated, call for a correctness response. I would therefore amend them to ask whether the particular statutory interpretation or approach suggested by the question is or is not reasonable.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-15", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 45–47", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Consequently, I have reformulated the second and third questions as follows: (2) Is it reasonable for the RPD to rely on evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? (3) Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nThe Supreme Court stated in Vavilov that “[r]easonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law”: Vavilov SCC, above at para. 82.\n\nReasonableness review involves both an assessment of the outcome of the case and of the reasoning process leading to that outcome: Vavilov SCC, above at para. 83. The Supreme Court further affirmed that it is not sufficient for the outcome of a decision to be justifiable. Where reasons are required, the decision must also be justified by the decision maker to those to whom the decision applies: Vavilov SCC, above at para. 86.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-16", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 48–49", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Vavilov teaches that reasons “must not be assessed against a standard of perfection” and that administrative decision makers should not be held to the “standards of academic logicians”: Vavilov SCC, above at paras. 91, 104. Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis”: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 25 (Newfoundland Nurses); Vavilov SCC, above at para. 128. Nor are they required to “make an explicit finding on each constituent element, however subordinate, leading to [their] final conclusion”: Newfoundland Nurses, above at para. 16.\n\nThat said, reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable”: Vavilov SCC, above at para. 81. The principles of justification and transparency thus require that administrative decision makers’ reasons “meaningfully account for the central issues and concerns raised by the parties”: Vavilov SCC, above at para. 127. The failure of a decision maker to “meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it”: Vavilov SCC, above at para. 128. As a result, “where reasons are provided but they fail to provide a transparent and intelligible justification ... the decision will be unreasonable”: Vavilov SCC, above at para. 136.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-17", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 50", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention: Vavilov SCC, above at para. 133. The failure to grapple with the consequences of a decision should thus be considered: Vavilov SCC, above at para. 134, citing Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-18", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 51–52", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In this case, the seriousness of the impact of the RPD’s decision on Ms. Galindo Camayo increases the duty on the RPD to explain its decision. Specifically: a) The loss of refugee or protected person status unquestionably has serious consequences for the affected individual and persons like her, and legislative changes have made those consequences harsher in the last decade. In the past, protected persons who became permanent residents and who were then subject to cessation findings were able to maintain their permanent resident status in Canada. However, with changes brought about by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, sections 18 and 19, this is no longer the case. b) Moreover, a cessation finding cannot be appealed to either the Immigration Appeal Division or the Refugee Appeal Division of the Immigration and Refugee Board: IRPA, subsections 63(3) and 110(2). Individuals whose refugee protection has been ceased are also barred from seeking a Pre-removal Risk Assessment or an application for permanent residence on humanitarian and compassionate grounds for at least one year: IRPA, sections 25(1.2)(c)(i), 40.1, 46(1)(c.1), 63(3), 101(1)(b), 108(3), 110(2), and 112(2)(b.1). They are also inadmissible to Canada for an indeterminate period: IRPA, subsection 40.1(2) and paragraph 46(1)(c.1), and are subject to removal from Canada “as soon as possible”: IRPA, subsection 48(2).\n\nWhere, as here, the administrative decision maker has to deal with issues of statutory interpretation, certain additional considerations must be kept in mind by both the administrative decision maker and the reviewing court.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-19", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 53–55", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "First, the administrative decision maker must deal with any statutory interpretation issues by examining the text, context and purpose of the relevant provisions. Its analysis need not be the sort of formalistic statutory interpretation exercise that a court would perform: Vavilov SCC, above at paras. 92 and 119; Canada (Minister of Citizenship and Immigration) v. Mason, 2021 FCA 156 at para. 39. Due allowance must be made for the fact that Parliament has given the responsibility to interpret the statutory provisions to an administrative decision maker, not a court, and certainly not to the reviewing court.\n\nSecond, in conducting reasonableness review, a reviewing court must be on guard not to engage in what is called “disguised correctness” review. It should not interpret the statutory provision itself and then use its own interpretation as a yardstick to measure the interpretation reached by the administrative decision maker: Delios, above at para. 28; Mason, above at para. 12. Reviewing courts can adopt specific techniques to avoid doing this: Mason, above at paras. 15-20, citing Hillier v. Canada (Attorney General), 2019 FCA 44 at paras. 13-17.\n\nThird, largely in pre-Vavilov jurisprudence, the Federal Court has offered interpretations of section 108 that shed light on when cessation under section 108 will be warranted. While in some cases, decisions of the Federal Court disagree with each other, it must again be remembered that under Vavilov, the Federal Court is not the body that interprets section 108. Rather, it is restricted to the role of a reviewing court.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-20", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 56–58", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nevertheless, the leading interpretations of section 108 offered by the Federal Court that are relevant to the case at hand should be considered and assessed by the RPD, with supporting reasoning. As a general matter, judicial interpretations of statutory provisions bind the RPD unless the RPD can distinguish them or explain why a departure from them is warranted.\n\nIn the end result, in cases where the administrative decision maker has to consider the proper meaning of a statutory provision, the reviewing court must be satisfied that the administrative decision maker is “alive [either implicitly or explicitly] to [the] essential elements” of text, context and purpose and has touched on at least “the most salient aspects of the text, context [and] purpose”: Vavilov SCC, above at paras. 120-122; Mason, above at para. 42.\n\nIn my view, the decision of the RPD was not reasonable. As set out above, many questions arise as to the proper interpretation of section 108 of IRPA. The RPD simply stated its own view of what section 108 requires, without any real analysis. In broad terms, it set out the text of section 108, fastened onto the Refugee Handbook, and then asserted its own views of what section 108 requires, without considering the text, context and purpose of section 108. It also failed to analyze and consider the Federal Court’s jurisprudence in order to see whether its decision was legally constrained in any way. It then stated its conclusion on various issues, but did not provide a sufficient pathway of reasoning to explain how it got there.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-21", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 59", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In saying this, I recognize that due allowance must be made for the fact that the RPD is an administrative decision maker, often staffed by lay people, with its own way of dealing with and articulating legal issues. That said, even affording that allowance to the RPD, it fell short of the mark in this case.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-22", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 60", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 of IRPA means. However, it adopted these views without conducting any statutory interpretation analysis. Examples include the following: (a) The RPD rejected Ms. Galindo Camayo’s claim that she was unaware of the potential consequences of using her Colombian passport. Noting that ignorance of the law was no excuse, the RPD observed that Ms. Galindo Camayo was an educated, sophisticated adult who could have sought information about the steps that she needed to take to secure her status in Canada. At root here was the bare assertion that ignorance of the law is no excuse under section 108, an assertion adopted without any statutory interpretation analysis. (b) Referring to Ms. Galindo Camayo’s evidence that she had engaged private security to protect her while she was in Colombia, the RPD stated that Ms. Galindo Camayo knew enough about the threats or harm that she faced in that country to hire private security to accompany her while she was there. According to the RPD, this indicated that Ms. Galindo Camayo recognized the dangers associated with travel to Colombia. However, the RPD never explains what the legal relevance of this was for the analysis under section 108. An interpretation of section 108 in light of its text, context and purpose would have assisted in this regard. (c) The RPD noted that refugee protection lasts only as long as the reasons for fearing persecution in the country of nationality persist. It accepted that merely obtaining a Colombian passport may not, by itself, be evidence of an individual’s intent to use it. However, Ms.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-23", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 60–61", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Galindo Camayo’s repeated use of her Colombian passport to visit Colombia and other countries was an indication that she intended to travel under the protection of the Colombian government and that she intended to reavail herself of the protection afforded her by her Colombian passport. However, the leap from merely carrying a Colombian passport to a finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unexplained. The RPD’s reasoning implies some undisclosed and unexplained understanding of what “intention” means, and by extension, an undisclosed and unexplained interpretation of section 108 of IRPA. (d) Finally, insofar as actual reavailment was concerned, the RPD found that Ms. Galindo Camayo’s years of travel to third countries on Colombian passports (where she could seek the assistance of the Colombian government if something went wrong), and her repeated trips to Colombia for reasons that were neither necessary nor compelling, demonstrated that she had actually reavailed herself of Colombia’s protection. This involved an unexplained determination of what falls within or outside section 108, and, more particularly, the meaning of the elements of intention, voluntariness and reavailment.\n\nKey to the assessment of the reasonableness of the RPD’s decision is whether it could rely on evidence of a refugee’s lack of subjective knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by her country of nationality has intended to avail herself of that state’s protection. On this point, there is jurisprudence in the Federal Courts that constrains the RPD’s decision-making in this area.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-24", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 62–64", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "It will be recalled that the first element of the test for cessation relates to the voluntariness of the individual’s actions. The RPD found that Ms. Galindo Camayo did not act voluntarily when she obtained and renewed her Colombian passports, but that she did act voluntarily when she used those passports to return to Colombia. No issue has been taken with respect to this latter finding. The question for the RPD then was whether Ms. Galindo Camayo intended by her actions to reavail herself of Colombia’s protection.\n\nAs noted earlier, there is a presumption that refugees who acquire and travel on passports issued by their country of nationality to travel to that country or to a third country have intended to avail themselves of the protection of their country of nationality. This is because passports entitle the holder to travel under the protection of the issuing country. This presumption is even stronger where refugees return to their country of nationality, as they are not only placing themselves under diplomatic protection while travelling, they are also entrusting their safety to governmental authorities upon their arrival.\n\nAs the Federal Court observed in Ortiz Garcia v. Canada (Minister of Citizenship and Immigration), 2011 FC 1346, “[r]eavailment typically suggests an absence of risk or a lack of subjective fear of persecution. Absent compelling reasons, people do not abandon safe havens to return to places where their personal security is in jeopardy”: at para. 8.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-25", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 65–67", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Constraining case law from the Federal Court, suggests, however, that the presumption is a rebuttable one. The onus is on the refugee to adduce sufficient evidence to rebut the presumption of reavailment: Canada (Minister of Citizenship and Immigration) v. Nilam, 2015 FC 1154 at para. 26; Li v. Canada (Minister of Citizenship and Immigration), 2015 FC 459 at para. 42.\n\nThe RPD should therefore have carried out an individualized assessment of all of the evidence before it, including the evidence adduced by the refugee as to her subjective intent, in determining whether the presumption of reavailment has been rebutted in this case.\n\nMs. Galindo Camayo testified that she was not aware that using her Colombian passport to travel to Colombia and elsewhere could have consequences for her immigration status in Canada. The RPD rejected this claim, not because Ms. Galindo Camayo was not credible, but because it found that ignorance of the law was not a valid argument. The RPD noted that Ms. Galindo Camayo was an educated and sophisticated individual who could have sought information as to the requirements that she had to uphold in order to maintain her status in Canada. With respect, this misses the point.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-26", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 68–70", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "If it were acting reasonably, at this point in its analysis, the RPD should have considered not what Ms. Galindo Camayo should have known, but rather whether she did subjectively intend by her actions to depend on the protection of Colombia. Having failed to find that Ms. Galindo Camayo’s testimony on this point lacked credibility, the RPD is deemed to have accepted her claim that she did not know that using her Colombian passport to return to Colombia and to travel elsewhere could result in her being deemed to have reavailed herself of Colombia’s protection, and that this was not her intent.\n\nThe Minister contends that the cessation provisions of IRPA would be stripped of any meaning if it was sufficient for an individual faced with a cessation application to simply state that they did not know that their actions could put their status in Canada in jeopardy. Not only did the Federal Court explicitly reject this argument, it also overstates the issue.\n\nAn individual’s lack of actual knowledge of the immigration consequences of their actions may not be determinative of the question of intent. It is, however, a key factual consideration that the RPD must either weigh in the mix with all of the other evidence, or properly explain why the statute excludes its consideration.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-27", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 71–74", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In order for it to make a reasonable decision, the RPD was required to take account of the state of Ms. Galindo Camayo’s actual knowledge and intent before concluding that she had intended to reavail herself of Colombia’s protection. I agree with the Federal Court that without this analysis, the RPD’s conclusion on reavailment was not a defensible outcome based on the constraining facts and law, and that it was thus unreasonable: Cerna v. Canada (Minister of Citizenship and Immigration), 2015 FC 1074 at paras. 18-19; Mayell v. Canada (Minister of Citizenship and Immigration), 2018 FC 139 at paras. 17-19.\n\nThe RPD also conflated the question of voluntariness with that of intention to reavail and this led, in part, to an unreasonable decision. Much of the RPD’s analysis of the intention issue is taken up with an examination of the reasons cited by Ms. Galindo Camayo for returning to Colombia. I agree with Ms. Galindo Camayo that the question of whether one intended to reavail oneself of the protection of one’s country of origin has nothing to do with whether the motive for travel was necessary or justified: Federal Court decision at para. 31.\n\nKey to the assessment of the reasonableness of the RPD decision is whether it could rely on evidence that Ms. Galindo Camayo took measures to protect herself against her agent of persecution while she was in Colombia to rebut the presumption of reavailment.\n\nAccording to Ms. Galindo Camayo, her family engaged the services of professional security guards to protect her on each of her trips to Colombia, and documentary evidence from security companies was provided to support her evidence in this regard.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-28", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 75–78", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The RPD appears to have accepted Ms. Galindo Camayo’s evidence on this point. It found however that while she might not have been fully aware of the reasons why her family had fled Colombia, Ms. Galindo Camayo knew enough about the dangers associated with travel to Colombia to engage private security personnel to accompany her while she was there.\n\nGiven that the discussion with respect to Ms. Galindo Camayo’s use of private security takes place in the section of the RPD’s reasons dealing with intention, it appears that the RPD understood this evidence to support its conclusion that by travelling to Colombia, Ms. Galindo Camayo intended to reavail herself of that country’s protection.\n\nI agree with Ms. Galindo Camayo that this was an unreasonable finding: the evidence with respect to her use of private security while she was in Colombia speaks not to her intention to entrust her protection to Colombia, but is, rather, to the opposite effect. It is evidence of Ms. Galindo Camayo’s ongoing subjective fear of the situation in Colombia, and her lack of confidence in the ability of the state to protect her.\n\nOnce again, Ms. Galindo Camayo’s evidence on this point was not necessarily determinative of the issue of intent, and it was open to the RPD to reject it. However, it had to at least consider it properly and, if it found it not to be probative or persuasive, to explain why that was the case. Its failure to do so in this case is a further reason for concluding that the RPD’s decision was unreasonable.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-29", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 79–81", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Before concluding this portion of these reasons, I would note that the RPD appears to have considered Ms. Galindo Camayo’s use of her passport to travel to Colombia as satisfying all three elements of the test for reavailment (voluntary, intentional, and actual reavailment). This is evident from paragraph 22 of its reasons, where it found that Ms. Galindo Camayo’s use of her Colombian passport for travel was voluntary. Similarly, at paragraph 31 of its reasons the RPD found that Ms. Galindo Camayo’s use of her Colombian passport showed her intention to travel under the protection of Colombia, and paragraph 34 of its reasons, where the RPD found that Ms. Galindo Camayo’s use of her Colombian passport to travel to Colombia and elsewhere was evidence of actual reavailment. This approach left little room for Ms. Galindo Camayo to demonstrate that even though she had used her Colombian passport for travel, she did not intend to avail herself of the protection of that country.\n\nThis case represents the first opportunity that our Court has had to deal with a cessation case since the Supreme Court’s decision in Vavilov. As such, the RPD may benefit from our guidance in this area. It would also be unfortunate if we remitted this case for redetermination and the RPD was to repeat some of the errors that occurred in this case, potentially leading to the “endless merry-go-round of judicial reviews and subsequent reconsiderations” that the Supreme Court cautioned against in Vavilov: above, at para. 142.\n\nIt should be noted, however, that in providing this guidance, the Court is not recommending or suggesting any outcome one way or the other in relation to the cessation application involving Ms. Galindo Camayo. The merits of the redetermination are for the RPD to determine.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-30", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 82–83", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "As noted earlier, the RPD’s reasons on the redetermination need not involve a microscopic examination of everything that could possibly be said on the matter. There need only be a reasoned explanation concerning the relevant evidence and key issues, including the key arguments made by the parties: Sexsmith v. Canada (Attorney General), 2021 FCA 111 at para. 36.\n\nMoreover, as the Federal Court observed in this case, the outcome in each cessation proceeding will be largely fact-dependent. I further agree with the submission of the intervener, United Nations High Commissioner for Refugees, that the test for cessation should not be applied in a mechanistic or rote manner. The focus throughout the analysis should be on whether the refugee’s conduct—and the inferences that can be drawn from it—can reliably indicate that the refugee intended to waive the protection of the country of asylum.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-31", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 84", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus, in dealing with cessation cases, the RPD should have regard to the following factors, at a minimum, which may assist in rebutting the presumption of reavailment. No individual factor will necessarily be dispositive, and all of the evidence relating to these factors should be considered and balanced in order to determine whether the actions of the individual are such that they have rebutted the presumption of reavailment. The provisions of subsection 108(1) of IRPA, which operate as a constraint on the RPD in arriving at a reasonable decision: Vavilov SCC, above at paras. 115-124; The provisions of international conventions such as the Refugee Convention and guidelines such as the Refugee Handbook, as international law operates as an important constraint on administrative decision makers such as the RPD. Legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with ... the values and principles of customary and conventional international law”: Vavilov SCC, above at para. 114, citing R. v. Hape, 2007 SCC 26 at para. 53; R. v. Appulonappa, 2015 SCC 59 at para. 40; see also IRPA, paragraph 3(3)(f). The severity of the consequences that a decision to cease refugee protection will have for the affected individual. Where the impact of a decision on an individual's rights and interests is severe, the reasons provided to that individual must reflect the stakes: Vavilov SCC, above at paras. 133-135; The submissions of the parties. The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully engage with the central issues and the concerns raised by the parties: Vavilov SCC, above at paras.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-32", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 84", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "127-128; The state of the individual’s knowledge with respect to the cessation provisions. Evidence that a person has returned to her country of origin in the full knowledge that it may put her refugee status in jeopardy may potentially have different significance than evidence that a person is unaware of the potential consequences of her actions; The personal attributes of the individual such as her age, education and level of sophistication; The identity of the agent of persecution. That is, does the individual fear the government of her country of nationality or does she claim to fear a non-state actor? Evidence that a person who claims to fear the government of her country of nationality nevertheless discloses her whereabouts to that same government by applying for a passport or entering the country may be interpreted differently than evidence with respect to individuals seeking passports who fear non-state actors. In this latter situation, applying for a passport or entering the country will not necessarily expose the individual to their agent of persecution. This may be especially so when all the individual has done is apply for a passport: applying for a passport may have little bearing on the risk faced by a victim of domestic violence, for example, or her level of subjective fear; Whether the obtaining of a passport from the country of origin is done voluntarily; Whether the individual actually used the passport for travel purposes.", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-33", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 84", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "If so, was there travel to the individual’s country of nationality or to third countries? Travel to the individual’s country of nationality may, in some cases, be found to have a different significance than travel to a third country; What was the purpose of the travel? The RPD may consider travel to the country of nationality for a compelling reason such as the serious illness of a family member to have a different significance than travel to that same country for a more frivolous reason such as a vacation or a visit with friends; What the individual did while in the country in question; Whether the individual took any precautionary measures while she was in her country of nationality. Evidence that an individual took steps to conceal her return, such as remaining sequestered in a home or hotel throughout the visit or engaging private security while in the country of origin, may be viewed differently than evidence that the individual moved about freely and openly while in her country of nationality; Whether the actions of the individual demonstrate that she no longer has a subjective fear of persecution in the country of nationality such that surrogate protection may no longer be required; and Any other factors relevant to the question of whether the particular individual has rebutted the presumption of reavailment in a given case. · The frequency and duration of the travel;", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-520921-34", - "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 85", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", - "part": "Federal Court of Appeal", - "division": "", - "text": "For these reasons, I would dismiss the appeal. I would answer the certified questions and, in the case of the second and third questions, the questions as reformulated, as follows: (1)Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? This question no longer needs to be answered. (2)Is it reasonable for the RPD to rely upon evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? Yes. (3)Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection? Yes. \"Anne L. Mactavish\" J.A. “I agree. David Stratas J.A.” “I agree. Marianne Rivoalen J.A.”", - "current_to": "2022-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" - }, - { - "id": "fca-501244-1", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 1–4", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal by the Attorney General of Canada from a decision of the Canadian International Trade Tribunal (CITT), reported as Best Buy Canada Ltd., 2019 CanLII 110846 (CA CITT), 2019 CarswellNat 14479 (WL Can) [Best Buy (CITT 2019)]. In that decision, the CITT classified television stands imported by the respondent, Best Buy Ltd., as “parts” of televisions, under tariff item No. 8529.90.90 of the schedule to the Customs Tariff, S.C. 1997, c. 36.\n\nThe CITT decision under appeal was itself a reconsideration of an earlier CITT decision, reported as Best Buy Canada Ltd., 2017 CanLII 149295 (CA CITT), 22 T.T.R. (2d) 57 [Best Buy (CITT 2017)]. Canada appealed the 2017 decision to this Court, which remitted the matter back to the CITT, Canada v. Best Buy Canada Ltd., 2019 FCA 20, 2019 CarswellNat 168 (WL Can) [Best Buy (FCA 2019)], which in turn maintained its original result. Canada once again appeals the CITT’s decision.\n\nThis appeal raises the question of whether this Court may review a CITT decision for issues other than questions of law, contrary to the wording of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). In my view, subsection 67(3) and section 68 of the Customs Act preclude this Court from reviewing CITT decisions for errors of fact or mixed fact and law that are not so egregious as to rise to the level of errors of law.\n\nCanada alleges the CITT both erred in law, and in applying the law to the facts of the case. I am not convinced that the CITT made an error of law. Further, given my conclusion that this Court may only review CITT decisions on questions of law, I would accordingly dismiss the appeal.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-2", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 5–8", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The goods in issue, which I refer to as “the Best Buy stands”, are metal and wooden models of floor stands for flat-panel televisions. On October 2, 2014, Best Buy requested an advance ruling from the CBSA on the tariff classification of the goods. Best Buy, relying on an earlier CITT decision dealing with similar floor stands, Sanus Systems v. President of the Canada Border Services Agency (8 July 2010), AP-2009-007 (CITT), 2010 CarswellNat 5288 (WL Can), 14 T.T.R. 576 [Sanus Systems], sought to have the goods classified under tariff item No. 8529.90.90.\n\nPrior to issuing its advance ruling on the Best Buy stands, the CBSA, in August 2015, filed a request with the World Customs Organization (WCO) Harmonized System Committee (the “WCO Committee”) for guidance on the tariff classification of audio-visual carts designed to hold televisions and other audio-visual apparatuses. The request informed the WCO Committee of the CITT ruling in Sanus Systems and set out the CBSA’s position that the goods in Sanus Systems were not “parts” of televisions but instead “furniture”.\n\nThe WCO Committee held a vote and decided to direct the Secretariat to prepare Classification Opinions classifying television stands like those at issue in Sanus Systems as “furniture”, not “parts” of televisions. The Classification Opinions were published on June 1, 2016. I refer to the stands covered by these Classification Opinions as “the WCO stands”.\n\nIn July 2016, the CBSA provided Best Buy with its advanced ruling on the goods in issue, classifying them as “furniture” under tariff heading No. 94.03, in accordance with the Classification Opinions.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-3", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 9–11", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Best Buy appealed to the CITT, which allowed the appeal: Best Buy (CITT 2017). Canada appealed the CITT’s decision to this Court, which allowed the appeal and remitted the matter back to the CITT for reconsideration.\n\nIn remitting the matter, this Court relied on section 11 of the Customs Tariff, which reads: Interpretation Interprétation de la liste des dispositions tarifaires 11 In interpreting the headings and subheadings, regard shall be had to the Compendium of Classification Opinions to the Harmonized Commodity Description and Coding System and the Explanatory Notes to the Harmonized Commodity Description and Coding System, published by the Customs Co-operation Council (also known as the World Customs Organization), as amended from time to time. 11 Pour l’interprétation des positions et sous-positions, il est tenu compte du Recueil des Avis de classement du Système harmonisé de désignation et de codification des marchandises et des Notes explicatives du Système harmonisé de désignation et de codification des marchandises et de leurs modifications, publiés par le Conseil de coopération douanière (Organisation mondiale des douanes).\n\nThis Court found that, “[a]lthough the Opinions were relevant because they dealt with goods that were materially the same as those before the Tribunal, the Tribunal failed to consider or have regard to the Opinions as required under the Customs Tariff”: Best Buy (FCA 2019) at para. 5. It thus remitted the matter with instructions to the CITT to have regard to the Opinions in its redetermination.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-4", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 12–13", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The CITT maintained its position that the WCO Classification Opinions, which dealt with wheeled audio/video equipment floor stands, were not relevant in the classification of the Best Buy stands, the latter being television-specific, non-wheeled floor stands. It reiterated that, “[h]aving had regard to the classification opinions, the Tribunal finds that they cover goods of different form and function than the goods at issue”: Best Buy (CITT 2019) at para. 14. This was material because, in the CITT’s view, the goods in issue were more like cases and cabinets than those covered by the classification opinion. The explanatory notes to heading No. 85.29, which captures “Parts suitable for use solely or principally with the apparatus of headings 85.25 to 85.28”, explicitly includes cases and cabinets specialized to receive televisions: Best Buy (CITT 2019) at para. 14.\n\nFinally, the CITT repeated at length its rejection, as set out in its original decision, of Canada’s argument that “parts” of televisions must be articles essential to the functionality of the devices: Best Buy (CITT 2019) at paras. 19–20. It therefore maintained its original decision, namely that the floor stands are “parts” of televisions, rather than “furniture”.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-5", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 14–15", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Canada launched this appeal in September 2019, prior to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1. It also filed its written submissions in March 2020, prior to this Court’s decisions in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 (WL Can) [Neptune]; and Canada (Attorney General) v. Impex Solutions Inc., 2020 FCA 171, 2020 CarswellNat 4332 (WL Can) [Impex]. In Vavilov, the Supreme Court of Canada changed how courts must treat appeals from administrative tribunals. In Neptune and Impex, this Court addressed how these changes impact the way it must conduct appeals from CITT decisions under section 68 of the Customs Act, which are limited to questions of law. In Neptune, Rennie J.A. posited that “[t]here may nonetheless be judicial review of questions of fact or mixed fact and law from which a legal issue cannot be extricated by virtue of general principles and section 28 of the Federal Courts Act”: at para. 15. However, in both Neptune and Impex, this Court found that the issues before it were questions of law that fell within the ambit of section 68. Rennie J.A.’s comments in Neptune were therefore obiter dicta.\n\nIn its written submissions, Canada argued that it is a question of law whether the CITT had sound reason to, in this case, disregard the WCO Classification Opinion. The standard of review on an appeal from a CITT decision on a question of law, by way of section 68 of the Customs Act, is now correctness: Vavilov at para. 37; Neptune at para. 18; Impex at para. 32.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-6", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 16–19", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, Canada also argued that the CITT’s application of the law to the facts was unreasonable. Canada argued that the CITT considered irrelevant factors in reaching its conclusion about the inapplicability of the WCO Classification Opinion: namely, the practices and procedures of the WCO Committee; and the opinion of an interior designer who testified as a witness. Canada acknowledged that these were, in both instances, issues of mixed fact and law.\n\nIn light of the obiter comments made in Neptune, Canada requested, and was granted, time after the hearing of this case to make additional submissions on the issue of whether matters other than questions of law are reviewable and, if so, via what procedure and under which standard of review?\n\nIn its supplementary submissions, Canada argued that judicial review of CITT decisions on questions of mixed fact and law that do not rise to the level of an error of law is available via an application for judicial review, under paragraph 28(1)(e) of the Federal Courts Act, R.S.C. 1985, c. F-7. In its supplementary submissions, Best Buy agreed with this proposition. Both parties agreed that the standard of review on such questions of fact or mixed fact and law is reasonableness.\n\nHowever, Canada also acknowledged that the Supreme Court’s decision in Vavilov has now cast doubt on this proposition and, performing a role it submitted was somewhat akin to that of an amicus curiae, Canada presented arguments against this Court accepting jurisdiction to review CITT decisions on the basis of errors of fact or mixed fact and law that are not sufficiently egregious to rise to the level of questions of law as contemplated by the operation of subsection 67(3) and section 68 of the Customs Act.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-7", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 20–21", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus, before addressing the issue of whether the CITT’s application of the law to the facts was reasonable, this Court must first decide whether it has jurisdiction to review the CITT’s decision on such questions of mixed fact and law.\n\nFinally, if this Court did conclude that it has jurisdiction to review CITT decisions for errors beyond the scope of the appeal as set out in section 68 of the Customs Act, it would also be required to determine how, as a matter of procedure, this review can be conducted. Generally, past practice in statutory appeals under the Customs Act was to review the CITT decision for reasonableness on the whole: see e.g. Igloo Vikski Inc. v. Canada (Border Services Agency), 2014 FCA 266, 2014 CarswellNat 4603 (WL Can) at para. 2 [Igloo Vikski (FCA)], reversed but not on that point, Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski (SCC)]. Both parties agreed that, after Vavilov, a separate application for judicial review would be necessary. Thus if this Court were to decide it could review the CITT decision for errors beyond those contemplated by section 68 of the Customs Act, it would also have to determine how to deal with the procedural challenge caused by requiring separate proceedings for review of matters of law—under section 68 of the Customs Act—and on any of the other grounds for review under the Federal Courts Act.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-8", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 22–24", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, the CITT did not err in law by declining to classify the Best Buy stands in accordance with the WCO Classification Opinion. Further, the only mechanism for review of a CITT decision made under the Customs Act is the section 68 appeal. Given that appeals under section 68 are limited in scope to questions of law, I am of the view that CITT tariff classification decisions may not be interfered with unless an extricable legal error warrants this Court’s intervention. Given my conclusion on this issue, it is unnecessary to deal with the procedural problems conducting such a review would pose.\n\nCanada contends that the CITT, by considering the process by which the WCO produces a classification opinion, made an error in law when it decided the Opinions do not apply in this case. According to Canada, interpreting and applying WCO Explanatory Notes and Classification Opinions are questions of law, reviewable on a correctness standard.\n\nIn my view, Canada has failed to demonstrate that the appeal raises an extricable legal question to which this Court must provide the correct answer. While I agree that interpretation of how the different provisions of the Customs Tariff interact will generally raise questions of law (see e.g. Impex at para. 40; Neptune at para. 18), the actual application of the provisions to a set of facts is more likely to be a matter of mixed fact and law: Impex at para. 34, citing Canada (Border Services Agency) v. Decolin Inc., 2006 FCA 417, 356 N.R. 284 at para. 41. In other words, whether a specific product fits the description of a tariff item number, in light of its physical characteristics and relevant Explanatory Notes and Classification Opinions, will generally not be a question of law.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-9", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 25–26", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is possible that a reviewable error of law may be extricated from a CITT finding of fact or application of law to the facts. For example, findings of fact must generally be supported by evidence, and making a finding of fact without any supporting evidence has often been characterized as an error of law, as opposed to one of fact: see e.g. Schuldt v. The Queen, [1985] 2 S.C.R. 592, 24 D.L.R. (4th) 453 at p. 604, cited with approval in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 at para. 25. Thus an egregiously incorrect and unsupported finding of fact would be reviewable on a section 68 appeal.\n\nThe CITT’s application of the relevant law may also be reviewable for an error of law if, in applying a legal rule or principle, it effectively misinterpreted or undermined the rule or principle. As the Supreme Court, Iacobucci J.A., put it in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at para. 39: […] After all, if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-10", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 27", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, this Court’s analysis of one of the issues raised in Impex illustrates this principle at work with regard to a CITT tariff classification decision. The case dealt with whether certain disposable shoe coverings were plastic or textile. This Court determined that, in misapplying the tariff schedule, the CITT had effectively erred in law. The relevant portion reads as follows: [41] I am also satisfied that the appellant’s second ground of appeal, which concerns the Tribunal’s alleged failure to consider Note 1 to Chapter 39 upon determining that the goods in issue were articles of plastics, raises a question of law. The appellant contends that this Note directed the Tribunal to determine first whether the goods’ constituent material was a textile defined in Section XI, and more particularly a nonwoven defined in the Explanatory Notes to heading No. 56.03, before even considering whether Chapter 39 covered the goods in issue. In refusing or in neglecting to do so, the argument goes, the Tribunal overlooked a crucial analytical step prescribed by Note 1 to Chapter 39. [42] This second issue requires the Court to determine whether Note 1 to Chapter 39 entails that the goods’ constituent material must be assessed in light of Section XI before turning to Chapter 39. In other words, the issue is whether the logic and structure of the Tariff Schedule require that a constituent material that combines textiles and plastics be assessed in a specific order. If they do, then it is an error of law not to assess that material in that order. This, again, is a question of law reviewable on a standard of correctness.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-11", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 28–29", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus in Impex, the issue was not that the CITT allegedly erred in weighing certain factors against each other, or in unreasonably exercising a discretionary power conferred to it. Instead, this Court concluded that the CITT’s reasoning evidenced a misapprehension of the requirements of the tariff schedule—in other words, of the applicable law. Had this Court not intervened, the proper functioning of the legal rule—the interplay of the different sections of the tariff schedule involved—would have been undermined. The appellant successfully demonstrated that the CITT’s tariff classification decision on the merits raised an extricable question of law, reviewable on a section 68 appeal.\n\nHowever, in this case, no question of law was properly raised. A question of law is defined by its substance, not its form: see Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at paras. 49–50 [Emerson Milling]. In substance, this appeal is not about whether the CITT must have regard to WCO Classification Opinions, as that question is settled: see Best Buy (FCA 2019). Section 11 of the Customs Tariff requires the CITT have regard to WCO Classification Opinions when determining a tariff classification: see also Best Buy (FCA 2019).", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-12", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 30–31", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "What having proper regard entails is also settled. In its earlier decision in this matter, this Court, in remitting the matter to the CITT, summarized what this provision requires, at paragraph 4: The phrase “regard shall be had” under section 11 of the Customs Tariff entails that, while not binding, opinions of the WCO must “at least be considered” in determining the classification of goods imported into Canada (Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 at para. 8, [2016] 2 S.C.R. 80 [Igloo Vikski]). Similarly, this Court has examined the definition of “regard” in the context of section 11 of the Customs Tariff, and found that it means “to consider, heed, take into account, pay attention to, or take notice of” (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131 at para. 13, [2004] F.C.J. No. 615 [Suzuki]). Having “regard” further entails that the Tribunal should respect WCO opinions unless there is “sound reason” to do otherwise (Suzuki at para. 13). The Tribunal may ultimately disagree with the Opinions but it must consider them and provide a sound reason as to why it chose not to follow them.\n\nI would reiterate that, generally, the CITT should respect and follow WCO Classification Opinions. This means that the CITT should seek to, if possible, make tariff classifications that are in harmony with WCO Classification Opinions, rather than in opposition to them.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-13", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 32–33", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, where the CITT is of the view that such a harmonious classification is not possible, the CITT is not bound to follow the WCO Classification Opinions: see Best Buy (FCA 2019) at para 4; (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131, 319 N.R. 299 at paras. 14–17 [Suzuki]. The language of section 11 makes the WCO Explanatory Notes and Classification Opinions factors that must be weighed in the tariff classification process, not binding criteria. It must balance the WCO Classification Opinions and Explanatory Notes against any other factors it considers relevant. For example, it might weigh WCO Classification Opinions against apparently contradictory expert evidence: see e.g. Suzuki at para. 17. The appropriate weight to place on a WCO Classification Opinion will vary depending on the specific facts of the case and, most importantly, the characteristics of the goods in issue as compared to those covered by relevant Classification Opinions.\n\nAs a matter of law, the CITT is entitled to classify a product contrary to a WCO Classification Opinion when it has “sound reason” to do so: Best Buy (FCA 2019) at para. 4; Suzuki at para. 14. Whether it has sound reason in any specific case is unlikely to be a question of law but instead, as is the case here, one that can only be answered with reference to a particular set of facts. In other words, it will generally be a question of mixed fact and law.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-14", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 34–35", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nevertheless, Canada argues that the CITT erred in law by taking into account WCO internal processes as part of its assessment of the WCO opinions. The CITT did indeed cite portions from its decision in Mattel Canada Inc., 2019 CanLII 110865 (CA CITT), 2019 CarswellNat 14487 (WL Can), that describes how the WCO Classification Opinions are created: Best Buy (CITT 2019) at para. 9. However, in my view, it is open to the CITT to consider, in having “regard” to WCO Classification Opinions, how or why those opinions were produced. For example, it might be appropriate for the CITT to take notice of how goods reviewed by the WCO for a Classification Opinion came before the WCO, so that the CITT can assess whether the goods it is classifying are sufficiently similar to those covered by the WCO Classification Opinion. As the CITT noted, the Classification Opinions themselves are short, technical descriptions of products, and without further context—such as the background leading to publication of a specific Classification Opinion—the CITT might not be able to properly have “regard” to an opinion. Indeed, I am reticent to read into section 11 of the Customs Tariff strict limits on what the CITT can consider in reaching a tariff classification. In my view, it is important that this specialized tribunal be able to consider the disputes that come before it in context, which might include taking notice of the WCO’s deliberation processes.\n\nIn sum, Canada has failed to convince me that the CITT, by taking into account the deliberative process the WCO Committee used to create the Classification Opinions, made an error of law in its tariff classification decision.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-15", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 36", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "This Court has, in the past, reviewed CITT decisions for issues of mixed fact and law. For example, in HBC Imports (Zellers Inc.) v. Canada (Border Services Agency), 2013 FCA 167, 446 N.R. 352 [HBC Imports], this Court reviewed, and upheld, the reasonableness of the CITT’s classification of a type of toboggan. In framing the issue before it, this Court noted: [4] The question of whether the Astra Sled should be classified under heading 95.03 requires an interpretation of the expression “other toys” as used in this heading and the application of this interpretation to the Astra Sled. This is a question of mixed fact and law which requires an interpretation of the Tribunal’s own statute. The standard of review is reasonableness, which means that deference is to be given to the Tribunal (Canadian Tire Corp. Ltd. v. President of the Canada Border Services Agency, 2011 FCA 242, at paragraph 4; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654).", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-16", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 37–38", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "While other decisions are not so explicit, in many cases this Court has effectively reviewed the CITT’s decision on the merits, assessing the reasonableness of its application of the law to the facts before it, without identifying an extricable legal principle at issue: see e.g. Canada (Attorney General) v. RBP Imports Inc., 2018 FCA 167 at paras. 3–5 [RBP Imports]; Containerwest Manufacturing Ltd. v. Canada (Border Services Agency), 2016 FCA 110 at para. 12 [Containerwest Manufacturing Ltd.]; Igloo Vikski (FCA) at para. 2. In these decisions, this Court did not distinguish between questions of fact, of law and of mixed fact and law, but instead reviewed the CITT’s decision on a tariff classification for its reasonableness on the whole.\n\nHowever, these decisions came before the Supreme Court of Canada’s decision in Vavilov, in which it noted the following, at paragraph 8: […] While the application of the reasonableness standard is grounded, in part, in the necessity of avoiding “undue interference” in the face of the legislature’s intention to leave certain questions with administrative bodies rather than with the courts (see Dunsmuir, at para. 27), that standard has come to be routinely applied even where the legislature has provided for a different institutional structure through a statutory appeal mechanism.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-17", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 39–40", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Vavilov, the Supreme Court of Canada reiterated that respect for legislative intent is the “polar star” of judicial review: at para. 33, citing C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 149. It also held that lower courts should no longer effectively ignore the language of statutory appeal mechanisms and treat appeals launched under them as, essentially, applications for judicial review: Vavilov at para. 45. Instead, courts are now required “to give effect to the legislature’s institutional design choices to delegate authority through statute”: Vavilov at para. 36.\n\nIn my view, the Supreme Court’s dicta in Vavilov provides sufficient basis for this Court to refocus its approach in dealing with statutory appeals under the Customs Act in order to more accurately reflect Parliament’s intent. In its post-Vavilov decisions on appeals under the Customs Act, this Court has not had to decide the issue of whether it lacks jurisdiction to review CITT decisions for errors falling outside the apparent scope of the section 68 statutory appeal, as these cases turned on questions of law: Neptune at para. 18; Impex at para. 40. This case, in which Canada has, in my view, failed to identify an extricable legal issue, but nonetheless also challenges the reasonableness of the CITT’s classification decision on the merits, requires this Court to first decide whether it has jurisdiction to conduct such a review.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-18", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 41", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "At first blush, the language of the Customs Act would seem to preclude this Court from reviewing CITT decisions via any procedure other than the statutory appeal provided in that Act. As the statutory appeal is only available on questions of law, this Court would appear to lack jurisdiction to review CITT decisions for any errors other than purely legal ones. The relevant sections of the legislation read as follows: Appeal to the Canadian International Trade Tribunal Appel devant le Tribunal canadien du commerce extérieur 67 (1) A person aggrieved by a decision of the President made under section 60 or 61 may appeal from the decision to the Canadian International Trade Tribunal by filing a notice of appeal in writing with the President and the Canadian International Trade Tribunal within ninety days after the time notice of the decision was given. 67 (1) Toute personne qui s’estime lésée par une décision du président rendue conformément aux articles 60 ou 61 peut en interjeter appel devant le Tribunal canadien du commerce extérieur en déposant par écrit un avis d’appel auprès du président et du Tribunal dans les quatre-vingt-dix jours suivant la notification de l’avis de décision. […] […] Judicial review Recours judiciaire (3) On an appeal under subsection (1), the Canadian International Trade Tribunal may make such order, finding or declaration as the nature of the matter may require, and an order, finding or declaration made under this section is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-19", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 41", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "(3) Le Tribunal canadien du commerce extérieur peut statuer sur l’appel prévu au paragraphe (1), selon la nature de l’espèce, par ordonnance, constatation ou déclaration, celles-ci n’étant susceptibles de recours, de restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues à l’article 68. […] […] Appeal to Federal Court Recours devant la Cour d’appel fédérale 68 (1) Any of the parties to an appeal under section 67, namely, 68 (1) La décision sur l’appel prévu à l’article 67 est, dans les quatre-vingt-dix jours suivant la date où elle est rendue, susceptible de recours devant la Cour d’appel fédérale sur tout point de droit, de la part de toute partie à l’appel, à savoir : (a) the person who appealed, a) l’appelant; (b) the President, or b) le président; (c) any person who entered an appearance in accordance with subsection 67(2), may, within ninety days after the date a decision is made under section 67, appeal therefrom to the Federal Court of Appeal on any question of law. c) quiconque a remis l’acte de comparution visé au paragraphe 67(2). Disposition of appeal Issue du recours (2) The Federal Court of Appeal may dispose of an appeal by making such order or finding as the nature of the matter may require or by referring the matter back to the Canadian International Trade Tribunal for re-hearing. (2) La Cour d’appel fédérale peut statuer sur le recours, selon la nature de l’espèce, par ordonnance ou constatation, ou renvoyer l’affaire au Tribunal canadien du commerce extérieur pour une nouvelle audience. [Emphasis added] [Nos soulignés]", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-20", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 42–43", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Read together, the plain and ordinary meaning of the provisions indicate Parliament’s intent to limit judicial review of CITT decisions to statutory appeals on questions of law: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27. Subsection 67(3) purports to limit the ability of a court to interfere with a CITT decision except via the statutory appeal mechanism provided for in section 68. Subsection 68(1) only allows for appeal on questions of law.\n\nThis meaning is supported by the legislative context. The Customs Act provides for de novo appeal before the CITT of a CBSA tariff classification decision. Prior to this appeal, the CBSA conducts two levels of internal review: Customs Act, ss. 59–60. By the time a tariff classification matter reaches this Court, any contested factual issues have thus already been subject to multiple levels of review. Similarly, the application of the law to the facts—the tariff classification of the product—has also first been decided by the CBSA, reviewed internally, and then reviewed de novo by the CITT. What the statutory scheme contemplates for this Court to review are contested legal issues, and not factual ones.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-21", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 44", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Further support for this interpretation can be found by comparing the appeal procedure provided for in the Customs Act to similar procedures for review of other types of CITT decisions. The CITT is a quasi-judicial tribunal created by the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.). It decides a wide variety of matters brought before it pursuant to several different statutory authorities. Appeals to the CITT from certain CBSA decisions are available, for example, under subsection 61(1) of the Special Import Measures Act, R.S.C. 1985, c. S-15 [SIMA]. Subsection 61(3) makes these decisions final and conclusive except where subject to appeal, and subsection 62(1) makes appeals to this Court available on questions of law. Notably absent in the SIMA is the language used in the Customs Act to expressly eliminate judicial review of all other CITT decisions made under the SIMA. Indeed, unlike the Customs Act, the SIMA explicitly provides for launching an application for judicial review of certain decisions on grounds other than provided for in the statutory appeal mechanism. For example, section 76 of the SIMA provides: Application for judicial review Contrôle judiciaire 76 Subject to subsection 61(3) and Part I.1 or II, an application for judicial review of an order or finding of the Tribunal under this Act may be made to the Federal Court of Appeal on any of the grounds set out in subsection 18.1(4) of the Federal Courts Act. 76 Sous réserve du paragraphe 61(3) et des parties I.1 et II, les ordonnances ou conclusions du Tribunal prévues à la présente loi sont sujettes au contrôle judiciaire de la Cour d’appel fédérale pour l’un des motifs prévus au paragraphe 18.1(4) de la Loi sur les Cours fédérales.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-22", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 45–46", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The availability of judicial review is also dealt with at section 96.1 of the SIMA, which enumerates at length the types of CITT decisions and issues subject to judicial review, as opposed to being reviewable under that legislation’s statutory appeal mechanism.\n\nAs Canada points out, the explicit reference in the SIMA to the availability of judicial review of CITT decisions made under that Act can be contrasted with Parliament’s explicit statement that CITT decisions made under subsection 67(3) of the Customs Act are “not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.” In my view, the comparison further supports the plain and ordinary interpretation of the meaning of the Customs Act, which is that judicial review outside the statutory appeal mechanism, and thus for questions of mixed fact and law, is unavailable. If Parliament’s institutional design choices are to be respected, factual issues and issues of mixed fact and law for which no legal question can be extracted must not be subject to review by this Court.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-23", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 47–48", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "This conclusion runs contrary to the position taken on this issue by both parties. Canada argues, and Best Buy agrees, that paragraph 28(1)(e) of the Federal Courts Act provides this Court with broad jurisdiction to review CITT decisions for matters not subject to the statutory appeal mechanism. In other words, all matters not captured by the term “question of law”. In support of this proposition, Canada argues that the “rule of law” requires judicial review be available to guard against unreasonable CITT rulings on matters of fact or mixed fact and law. As a subsidiary argument, Canada points to past jurisprudence of this Court recognizing the possibility of judicial review of CITT decisions, and indeed of other tribunals subject to similar limited scope appeal clauses, for matters falling outside the scope of the statutory appeal.\n\nI have already described why I view this Court’s past practice of reviewing these matters on a reasonableness standard, within the procedural vehicle of a section 68 appeal, as of limited import in determining how it should conduct statutory appeals under the Customs Act going forward. Vavilov implemented “a holistic revision of the framework for determining the applicable standard of review”: at para. 143. The Supreme Court explicitly noted that past cases dealing with “the effect of statutory appeal mechanisms […] will necessarily have less precedential force” after Vavilov: at para. 143. In my view, the past cases in which mixed questions were reviewed, under section 68, on a reasonableness standard, effectively ignored subsection 67(3) and Parliament’s institutional design choice. Vavilov makes clear that this past practice should no longer be sustained going forward. Furthermore, in truth the jurisprudence leans both ways.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-24", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 49–50", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "As noted above, in some cases this Court has, either explicitly or implicitly, reviewed the CITT’s application of the law to the facts: see e.g. HBC Imports at para. 4; RBP Imports at paras. 3–5; Containerwest Manufacturing at para. 12; Igloo Vikski (FCA) at para. 2.\n\nHowever, in others, this Court limited its inquiry to whether a reviewable error of law occurred, and declined to review the CITT’s findings of fact or application of law to those facts. In Star Choice Television Network Inc. v. Canada (Commissioner of Customs and Revenue), 2004 FCA 153, 2004 CarswellNat 1004 (WL Can) at para. 9, Strayer J.A. noted that questions of law were “the only matter properly in issue on this appeal”, before concluding the CITT had not made a reviewable error of law. In Deputy Canada (Minister of National Revenue) v. Yves Ponroy Canada, 2000 CanLII 15801 (FCA), 25 Admin L.R. (3d) 101 at para. 36, Sharlow J.A. wrote that “[u]nder subsection 67(3) and subsection 68(1) of the Customs Act, customs tariff classification decisions of the CITT are not subject to judicial review and are subject to appeal to this Court only on questions of law”, before concluding that the CITT had not made a reviewable error of law. And indeed, in one of its handful of decisions on a section 68 appeal, the Supreme Court noted in obiter that, by virtue of subsection 67(3) of the Customs Act, “CITT findings of fact are immune from appellate review”: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100 at para. 26.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-25", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 51–53", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus in my view, past jurisprudence does not provide a persuasive argument as to why the clear meaning of the Customs Act should be disregarded and judicial review of CITT decisions be permitted outside of the section 68 statutory appeal mechanism. Given that that mechanism is restricted in scope to matters of law, I am of the view that this Court may only intervene in a CITT decision if it discloses a reviewable error of law.\n\nDoes this conclusion offend the “rule of law”? Canada argues that it is the constitutional role of the courts to supervise the executive branch of government, and that in order to be fulfilled, this role requires full review of administrative decisions on all matters. In other words, reasonableness review of administrative decisions is constitutionally entrenched, and cannot be limited by legislative act.\n\nIt is true that the Supreme Court, in Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1 [Crevier], held that the legislature cannot completely oust judicial review via use of a privative clause. It is worth reviewing the facts of that oft-cited case, and briefly unpacking the Supreme Court’s holding.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-26", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 54", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Crevier dealt with the question of whether a provincial legislature can entirely eliminate judicial review of an administrative tribunal empowered to make findings of fact and rule on matters of law. The administrative scheme at issue was set up under Québec’s Professional Code, R.S.Q. 1977, c. C-26, which at the time granted the Professions Tribunal judicial powers to hear appeals of disciplinary decisions made by the different professional orders’ Disciplinary Committees. The Professions Tribunal was composed of judges of the Provincial Court, i.e. not judges appointed by the federal government under section 96 of what was then still the British North America Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 91, since reprinted in R.S.C. 1985, Appendix II., No. 5. At the time, article 194 of the Professional Code purported to completely eliminate recourse to the Superior Courts for review of Professions Tribunal decisions. It read: 194. No extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against the persons mentioned in section 193 acting in their official capacities. 194. Aucun des recours extraordinaires prévus aux articles 834 à 850 du Code de procédure civile ne peut être exercé ni aucune injonction accordée contre les personnes visées à l’article 193 agissant en leur qualité officielle.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-27", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 55", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The articles of the Code of Civil Procedure referred to dealt with applications for judicial review. The most relevant provision was article 846, which read: 846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases: 846. La Cour supérieure peut, à la demande d’une partie, évoquer avant jugement une affaire pendante devant un tribunal soumis à son pouvoir de surveillance ou de contrôle, ou reviser le jugement déjà rendu par tel tribunal: 1. when there is want or excess of jurisdiction;. 1. dans le cas de défaut ou d’excès de juridiction; 2. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect; 2. lorsque le règlement sur lequel la poursuite a été formée ou le jugement rendu est nul ou sans effet; 3. when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done; 3. lorsque la procédure suivie est entachée de quelque irrégularité grave, et qu’il y a lieu de croire que justice n’a pas été, ou ne pourra pas être rendue; 4. when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice 4. lorsqu’il y a eu violation de la loi ou abus de pouvoir équivalant à fraude et de nature à entraîner une injustice flagrante. However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-28", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 55–56", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Toutefois, ce recours n’est ouvert, dans les cas prévus aux alinéas 2, 3 et 4 ci-dessus, que si, dans l’espèce, les jugements du tribunal saisi ne sont pas susceptibles d’appel. [Emphasis added, italics in original] [Nos soulignés]\n\nThe Supreme Court struck down article 194 on the basis that it had the effect of constituting the Professions Tribunal a section 96 court. Chief Justice Laskin, writing for the Court, held the following: It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. (Crevier at pp. 236–37 [Emphasis added])", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-29", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 57–58", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Crevier has since oft been cited for the proposition that a legislature cannot completely oust judicial review: see e.g. Vavilov at para. 24; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 31. As Stratas J.A., for this Court, recently framed it, “[p]ut positively, Crevier stands for the proposition that there must always be at least some prospect or degree of review”: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, 2021 CarswellNat 1003 at para. 102 [Canadian Council for Refugees]. This is indeed all it stands for. It does not imply that the legislature cannot limit or preclude judicial review of administrative decisions for certain types of issues: see e.g. Canadian Council for Refugees at para. 102, citing United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402 at 333; Capital Regional District v. Concerned Citizens of British Columbia et al., [1982] 2 S.C.R. 842, 141 D.L.R. (3d) 385; Vavilov at paras. 45–52. On the contrary, as the emphasized portion of the above cited passage makes clear, Crevier actually explicitly states that the legislature may oust judicial review on issues not touching jurisdiction.\n\nIt is also clear from the above cited passage that, at the time, the Supreme Court considered “questions of jurisdiction” to be a more narrow and important category of question than “questions of law”. In my view, it follows that, according to the reasoning espoused in Crevier, a statutory scheme that allows for appeal of an administrative decision on a question of law meets the constitutional threshold articulated in Crevier.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-30", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 59–60", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Supreme Court in Crevier was pre-occupied with the lack of any appeal from a decision of the Professions Tribunal to a Superior Court. Comparing to the legislative scheme at issue in this case, it is clear that the Supreme Court’s holding in Crevier would limit Parliament’s ability to completely insulate the CITT from any Superior Court review. In the Customs Act, Parliament has not attempted to do so. Instead, it has provided an appeal mechanism, and simply limited what can be appealed to questions of law. Similar to the Code of Civil Procedure at the time Crevier was decided, the Federal Courts Act makes clear that the traditional judicial review remedies provided for in that Act—injunction, certiorari, prohibition, etc.—are unavailable when a statutory appeal from an administrative decision is provided for: Federal Courts Act, s. 18.5.\n\nIn my view, Crevier supports the position that Parliament may restrict judicial review to questions of law. A statutory provision having this effect, such as section 68 of the Customs Act, meets any threshold established in Crevier. To hold otherwise would be to eliminate any possibility that Parliament could, via statute, restrict the ambit of judicial review of administrative action. What purpose would the specific provisions of the Customs Act, and many other federal statutes that restrict review, serve if recourse to the Courts could always be had on all issues under the general provisions of section 18 and section 28 of the Federal Courts Act?", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-31", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 61–63", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is also why, in my view, the case of Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC], does not bind this panel into allowing a judicial review to proceed in this matter. In PSAC, the Federal Public Sector Labour Relations and Employment Board (the Board) argued that, by virtue of a privative clause found in its constituting statute, its decisions were not amenable to review for errors of law, erroneous findings of fact or any other departures from law: PSAC at paras. 10–12. This Court rejected that argument, holding that the Board’s decisions were reviewable for their reasonableness: PSAC at para. 34.\n\nThere are two factors that differentiate PSAC from this case. Firstly, the legislation at issue in PSAC did not provide for a statutory appeal, and only provided for a limited judicial review on the grounds of jurisdictional or procedural fairness issues, or fraud: PSAC at paras. 10–11. According to the Board, this meant that it could not be reviewed on matters of law.\n\nThere is of course, no such argument being made here. The CITT’s decisions are clearly reviewable for errors of law, and on a correctness basis. Thus the limits on the availability of judicial review being contemplated in this case are significantly more narrow than those argued for by the Board and rejected by this Court, in PSAC. I am not convinced that the reasoning and outcome in PSAC would have been the same had the Board’s statute provided for full review of its decisions on matters of law. I view the very different nature of the review mechanisms at issue in PSAC and in this case as sufficient to distinguish the cases.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-32", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 64–65", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Were the cases not distinguishable, PSAC was nevertheless decided before the Supreme Court of Canada’s decision in Vavilov. As noted above, Vavilov explicitly required lower courts rethink their approach to dealing with statutory appeals, with a view to giving effect to legislative intent. In my view, this major change in the law since PSAC, a change which goes to the heart of the issue in this application, is sufficient to warrant this panel to treat the issue as a novel one, and not consider itself bound by the panel’s holding in PSAC.\n\nFurther, in apparent contrast to the dicta in PSAC, this Court, in recent decisions, found it lacked jurisdiction to review administrative decisions for factual and policy issues where the applicable statutes limited appeals to questions of law and jurisdiction: Emerson Milling at para. 26; Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 (WL Can) at paras. 69, 78 [Bell Canada].", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-33", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 66–67", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is true that, in both those cases, the applicable legislation also provided for appeals to the Governor in Council: Canada Transportation Act, S.C. 1996, c. 10, s. 40; Telecommunications Act, S.C. 1993, c. 38, s. 12(1). The availability of this other mechanism for appeal played a part in this Court’s reasoning declining jurisdiction: Emerson Milling at para. 12; Bell Canada at paras. 48–50. However, I do not think that the Governor in Council review provided for in those schemes fulfills a factual review function. I am of the view that the validity of a statutory provision limiting appeals to this Court on questions of law is not conditional upon the availability of Governor in Council review for matters falling outside the scope of the appeal. As such, I do not see how this Court can review CITT decisions for issues of fact or mixed fact and law on an application for judicial review pursuant to the Federal Courts Act. In my view, subsection 67(3) and section 68 of the Customs Act preclude the possibility of such an application. While paragraph 28(1)(e) of the Federal Courts Act contemplates applications for judicial review of CITT decisions, as noted above, the CITT makes decisions pursuant to a variety of statutory authorities and some, such as the SIMA, do allow for judicial review. The Customs Act expressly does not. I would not disregard this expression of Parliament’s intent.\n\nGiven that Canada acknowledges that its second line of argument on the merits attacks the CITT’s application of the law to the facts, I see no need to deal comprehensively with that argument. Indeed, doing so would be engaging in the exact judicial review exercise I have just concluded this Court is precluded from conducting.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-34", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 68–71", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Given my conclusion that judicial review is unavailable outside of the statutory appeal mechanism provided for in the Customs Act, there is no need for me to address how a party might conduct both an appeal and an application for judicial review of the same decision. However, it is worth noting that if this Court was to accept the position of the parties and find that judicial review was available pursuant to sections 18 and 28 of the Federal Courts Act, under a separate and parallel application, it is clear that such a process would be more burdensome and more complicated than the efficient and timely system of review contemplated by the Customs Act alone. This would fly in the face of the intent of Parliament to simplify and expedite the review of the highly technical decisions of the CITT.\n\nThus, in my view, the only procedure by which this Court may review a CITT decision is an appeal made under section 68 of the Customs Act.\n\nI would dismiss the appeal, with costs. “D. G. Near” J.A. GLEASON J.A. (Concurring Reasons)\n\nI have had the opportunity of reading the reasons of my colleague, Near, J.A. in draft, and, while I concur in result, I arrive at my conclusion by a slightly different path. As is more fully articulated below, it is my view that a slightly broader range of factual determinations made by the CITT may be reviewed by this Court than my colleague would permit, although such review would require the filing of an application for judicial review. While this conclusion does not affect the result in this appeal, it is, in my opinion, nonetheless important to leave the door open to this sort of review, which might be determinative in a future case under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp) or another statute containing a privative clause.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-35", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 72–73", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "That said, I reach the same conclusion as my colleague in terms of the disposition of this appeal as the slightly broader basis for factual review that I contemplate is not available in an appeal. Moreover, even if an application for judicial review had been filed, the sorts of factual errors alleged by the appellant in the instant case would provide no basis for intervention. Thus, like my colleague, I would dismiss this application for judicial review.\n\nI commence my analysis of these issues by noting that I agree that this Court’s decision in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 [Neptune] does not settle the issue of whether factual determinations of the CITT may be reviewed by this Court as the issue was not central to the determination in that case. The comments made on the issue in Neptune are accordingly non-binding obiter dicta. The present case is the first time this issue has been squarely before this Court in the context of the CITT, although a very similar issue was before the Court recently in Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC] in the context of federal labour tribunals, where this Court reached an opposite conclusion from that of my colleague.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-36", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 74", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "For my colleague, the dicta of the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov] constitute an invitation to this Court to breathe new life into the privative clause in the Customs Act, such that it forecloses judicial any review of factual determinations, other than what my colleague qualifies as “egregious” factual determinations, or those for which there is no evidence, which would constitute errors of law and thus could be raised in a statutory appeal under section 68 of the Customs Act. With respect, I disagree with that approach for several reasons.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-37", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 75", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "First, I do not believe that the dicta in Vavilov support this reasoning, especially when one understands Vavilov in the context of how administrative law has developed in Canada and considers that the Supreme Court reconfirmed in Vavilov much of what it had earlier determined in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]. Second, my colleague’s approach is inconsistent with section 18.5 of the Federal Courts Act, R.S.C. 1985, c. F-7. Third, I believe that this issue was settled in PSAC, which is binding on this panel. Fourth, contrary to what my colleague suggests, I do not believe that this Court’s decisions in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 [Emerson Milling] and Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 [Bell Canada] mandate my colleague’s approach as the Court was not asked in either of those cases to rule on the availability of an application for judicial review as opposed to deciding on the bounds of a permissible appeal. In addition, there were important differences in the statutory context in Emerson Milling and Bell Canada. Finally, my colleague’s approach sits uncomfortably with how cases of this nature have been considered by this Court and the Supreme Court of Canada since Dunsmuir. I explore each of these points more fully below.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-38", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 76–78", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Turning first to the dicta in Vavilov, to put that case in context, it is useful to commence with a brief overview of how administrative law has developed over the last several decades, with particular focus on the availability of review for factual errors and the curial treatment of privative clauses. For it is only by understanding this context that one can appreciate the import of the decision in Vavilov.\n\nHistorically, review for factual errors made by administrative decision-makers was not available unless they fit into the category of jurisdictional error. However, legal errors made by administrative decision-makers were reviewable if they appeared on the face of the record. See Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters Canada, 2009) (loose-leaf updated 2021, release 1), ch. 1 at 1-11 to 1-14.\n\nWith the growth of the administrative state, legislatures inserted privative clauses into many statutes in an attempt to shield the decisions of administrative decision makers from curial review. In the years following adoption of provisions like subsection 67(3) of the Customs Act, Canadian courts, including the Supreme Court of Canada, determined that privative clauses could not shield patently unreasonable administrative decisions from review because this would violate the rule of law, which could not allow such fundamentally flawed administrative decisions to stand. In order to provide a basis for judicial intervention, under the administrative law framework then in force, patently unreasonable decisions were characterized as instances where an administrative decision maker exceeded its jurisdiction.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-39", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 79", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Patently unreasonable decisions included those tainted both by patently unreasonable legal determinations and by patently unreasonable factual determinations. Legal determinations were patently unreasonable if they offered an interpretation that could not be rationally supported by the relevant legislation (see, e.g. C.U.P.E v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417, at 237). In the context of collective agreement provisions, a patently unreasonable interpretation was characterized as one the provisions could not reasonably bear (see e.g. United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402, at 341). Factual determinations were characterized as being patently unreasonable where the evidence, viewed reasonably, was incapable of supporting the administrative decision-maker’s findings of fact (see, e.g. Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, 76 D.L.R. (4th) 389 [Lester] at 687).", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-40", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 80", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "As concerns factual determinations, the starting point for the discussion of these principles in the Supreme Court��s jurisprudence of the era is the decision in Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382, 41 D.L.R. (3d) 6, one of the seminal cases enshrining the principle of deference in Canadian administrative law. There, the Supreme Court considered the ambit of review of determinations made by the Saskatchewan Labour Relations Board, whose decisions were protected by a strongly-worded privative clause. It stated as follows at 388-389: There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent statute and decide questions any way it sees fit. If it does so, it acts beyond the ambit of its powers, fails to discharge its public duty and departs from legally permissible conduct. Judicial intervention is then not only permissible but requisite in the public interest. But if the Board acts in good faith and its decision can be rationally supported on a construction which the relevant legislation may reasonably be considered to bear, then the Court will not intervene. A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause. Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-41", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 80–82", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "If, on the other hand, a proper question is submitted to the tribunal, that is to say, one within its jurisdiction, and if it answers that question without any errors of the nature of those to which I have alluded, then it is entitled to answer the question rightly or wrongly and that decision will not be subject to review by the Courts: Anisminic, Ltd. v. Foreign Compensation Commission et al.; Noranda Mines Ltd. v. The Queen et al., supra; Farrell et al. v. Workmen’s Compensation Board, supra; R. v. Quebec Labour Relations Board, Ex p. Komo Construction Inc. [Footnotes omitted and emphasis added.]\n\nThe Supreme Court’s reference to “basing a decision on extraneous matters” and “failing to take relevant factors into account” can be read as encompassing factual matters.\n\nThe possibility of seriously erroneous factual determinations constituting patently unreasonable error was confirmed by the Supreme Court of Canada in its subsequent decision in Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, 14 D.L.R. (4th) 289. There, the Supreme Court was faced with judicial review of a decision of a labour arbitrator, whose decision was protected by a privative clause. In concurring reasons, two judges who wrote separately for the Court, confirmed that a narrow range of factual errors were subject to review for being patently unreasonable.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-42", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 83", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Justice Lamer, who wrote for two members of the Court, stated at 492-495: In principle, where there is a privative clause the superior courts should not be able to review errors of law made by the administrative tribunals. However, it is now settled that some errors of law can cause the arbitrator to lose his jurisdiction. The debate turns on the question of which errors of law result in the loss of jurisdiction. […] this Court has tended since Nipawin, supra, and C.U.P.E., supra, to avoid intervening when the decision of the administrative tribunal was reasonable, whether erroneous or not. In other words, only unreasonable errors of law can affect jurisdiction. […] In looking for an error which might affect jurisdiction, the emphasis placed by this Court on the dichotomy of the reasonable or unreasonable nature of the error casts doubt on the appropriateness of making, on this basis, a distinction between error of law and error of fact. In addition to the difficulty of classification, the distinction collides with that given by the courts to unreasonable errors of fact. An unreasonable error of fact has been categorized as an error of law. The distinction would mean that this error of law is then protected by the privative clause unless it is unreasonable. What more is needed in order that an unreasonable finding of fact, in becoming an error of law, becomes an unreasonable error of law? An administrative tribunal has the necessary jurisdiction to make a mistake, and even a serious one, but not to be unreasonable. The unreasonable finding is no less fatal to jurisdiction because the finding is one of fact rather than law. An unreasonable finding is what justifies intervention by the courts.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-43", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 83–84", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "[…] In conclusion, an unreasonable finding, whatever its origin, affects the jurisdiction of the tribunal. I hasten to add that the distinction between an error of law and one of fact is still entirely valid when the tribunal is not protected by a privative clause. Indeed, though all errors of law are then subject to review, only unreasonable errors of fact are, but no others.\n\nJustice Beetz, who wrote for the remaining members of the Court, noted at 480-481: Whatever the arbitrator's jurisdiction, strictly speaking, an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice would divest him of his jurisdiction and be a basis for judicial review by evocation, regardless of any privative clause. I cannot say that the arbitrator's award constituted such an abuse. [...] I am far from certain that I would have decided as the arbitrator did, but I also cannot say that the less severe penalty which is imposed instead of the ultimate penalty is, in view of all the circumstances, clearly abusive, flagrantly unjust, absurd, contrary to common sense, and lacking any basis in the evidence as a whole. [emphasis added]", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-44", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 85", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The notion that certain types of serious factual errors will support intervention even in the face of a privative clause was again endorsed by the Supreme Court of Canada in Lester, where the Court again reviewed a decision of a labour board, whose decisions were protected by a privative clause. While holding that the board’s decision was patently unreasonable because there was no evidence to support that a successorship had occurred under a rational interpretation of the relevant provisions in the legislation, Justice McLachlin (as she then was) described the sort of factual error that might allow intervention under the patently unreasonable standard is the following way at 687: Courts should exercise caution and deference in reviewing the decisions of specialized administrative tribunals, such as the Labour Board in this case. This deference extends both to the determination of the facts and the interpretation of the law. Only where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere. [emphasis added]", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-45", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 86", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385, the Supreme Court again addressed the issue in the context of review of a decision of a labour arbitrator, that was protected by a privative clause. In overturning the arbitrator’s conclusion on the issue of just cause, Justice Cory, writing for the majority of the Court stated at paras. 41- 45 and 47- 48: 41 A number of decisions of this Court have considered the circumstances which will give rise to a finding that a decision of an administrative body is patently unreasonable. The test has been articulated somewhat differently for findings of fact and findings of law. 42 Where a tribunal is interpreting a legislative provision, the test is: . . . was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, at p. 237. 43 A slight variation of this test applies to arbitrators interpreting a collective agreement. In those circumstances, a court will not intervene “so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear”:Bradco, supra, at p. 341. 44 It has been held that a finding based on “no evidence” is patently unreasonable. However, it is clear that a court should not intervene where the evidence is simply insufficient. As Estey J., dissenting in part, noted in Douglas Aircraft Co. of Canada v. McConnell, 1979 CanLII 51 (SCC), [1980] 1 S.C.R. 245, at p. 277: . . .", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-46", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 86", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may at one time have amounted to an error reviewable on the face of the record, in present day law and practice such error falls within the operational area of the statutory board, is included in the cryptic statement that the board has the right to be wrong within its jurisdiction, and hence is free from judicial review. 45 When a court is reviewing a tribunal’s findings of fact or the inferences made on the basis of the evidence, it can only intervene “where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact”: Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 CanLII 22 (SCC), [1990] 3 S.C.R. 644, at p. 669 per McLachlin J. [...] 47 In order to decide whether a decision of an administrative tribunal is patently unreasonable, a court may examine the record to determine the basis for the challenged findings of fact or law made by the tribunal. As Gonthier J., writing for the majority in National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324, at p. 1370, observed “[i]n some cases, the unreasonableness of a decision may be apparent without detailed examination of the record. In others, it may be no less unreasonable but this can only be understood upon an in‑depth analysis.” In Lester, supra, this Court conducted a review of the record to determine if there was any evidence which could reasonably support a particular factual finding made by a labour relations board.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-47", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 86–87", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "48 Therefore, in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is necessary for a reviewing court to examine the evidence that formed the basis for the inference. I would stress that this is not to say that a court should weigh the evidence as if the matter were before it for the first time. It must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal’s findings. [emphasis added]\n\nIt was against this backdrop that the provisions in the Federal Courts Act providing for judicial review of federally-regulated decision-makers were enacted. To a certain extent, they provided for review on a somewhat broader basis than that which was historically available at common law.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-48", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 88", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Currently enshrined in sections 18, 18.1-18.5 and 28 of the Federal Courts Act, these provisions allow for judicial review by the Federal Court of Appeal (for the tribunals named in subsection 28(1) of the Federal Courts Act), or by the Federal Court (for all other federally-regulated administrative decision-makers), except where a statutory right of appeal is provided. Subsection 18.5 of the Federal Courts Act, which is of central importance to the issues before us, provides that access to judicial review is foreclosed only to the extent a right of appeal is present. It states: Exception to sections 18 and 18.1 Dérogation aux art. 18 et 18.1 18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-49", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 88", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "18.5 Par dérogation aux articles 18 et 18.1, lorsqu’une loi fédérale prévoit expressément qu’il peut être interjeté appel, devant la Cour fédérale, la Cour d’appel fédérale, la Cour suprême du Canada, la Cour d’appel de la cour martiale, la Cour canadienne de l’impôt, le gouverneur en conseil ou le Conseil du Trésor, d’une décision ou d’une ordonnance d’un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d’un tel appel, faire l’objet de contrôle, de restriction, de prohibition, d’évocation, d’annulation ni d’aucune autre intervention, sauf en conformité avec cette loi.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-50", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 89", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Grounds for review are listed in subsection 18.1(4) of the Federal Courts Act, which provides: Grounds of review Motifs (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; (e) acted, or failed to act, by reason of fraud or perjured evidence; or e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; (f) acted in any other way that was contrary to law. f) a agi de toute autre façon contraire à la loi.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-51", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 90–92", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "With the growth in number and expertise of administrative decision-makers and the increasing complexity of questions remitted to them, the Supreme Court of Canada determined that, at least in certain instances, legal determinations made in the absence of a privative clause should be afforded deference. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 DLR (4th) 1 [Southam], building on its earlier decision in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, 114 D.L.R. (4th) 385 [Pezim], the Supreme Court developed a third standard of review somewhere between correctness and patent unreasonableness, which has been termed reasonableness simpliciter. Such standard required that a decision withstand a somewhat probing examination. The Supreme Court held that the difference between a merely unreasonable and a patently unreasonable decision was in the immediacy or obviousness of the defect. If the defect was apparent on the face of the decision-maker’s reasons, then the decision was patently unreasonable. Conversely, if it took some significant searching or testing to find the defect, then the decision was unreasonable but not patently unreasonable.\n\nIn Southam, the new reasonableness simpliciter standard of review was applied to all aspects of a decision of the Competition Tribunal, including its determinations of mixed fact and law. The relevant legislation provided for a right of appeal to this Court on issues of law and, with leave, on issues of fact.\n\nPerhaps not surprisingly, the determination of which of three standards of review might apply and discernment of their respective content proved increasingly complex and much litigation was devoted to the point.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-52", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 93–95", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Supreme Court of Canada developed the so-call “pragmatic and functional” analysis to assist in this discernment. As developed particularly in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, 95 N.R. 161, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 1222, 60 D.L.R. (4th) 193, this analysis required a reviewing court to consider several contextual factors to ascertain the applicable standard of review. These principally were: the presence or absence of a privative clause in the legislation creating the decision-maker; the expertise of the administrative decision-maker as compared to that of a court in respect of the point(s) in issue; the purpose of the statute conferring jurisdiction on the decision maker and of the provision(s) in issue; and the nature of the problem solved in the decision under review.\n\nIn Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, the Supreme Court confirmed that the foregoing analysis applied to each of the determinations made by an administrative decision-maker. In result, different standards of review could, and frequently did, apply to different parts of a decision.\n\nThe increasing complexity of the requisite analysis and its concomitant impact on predictability and cost in judicial review matters gave rise to significant criticism, causing the Supreme Court of Canada to largely jettison and re-work the entire framework for judicial review in Dunsmuir.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-53", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 96–98", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Dunsmuir, the Supreme Court collapsed two of the three previous standards of review of patent unreasonableness and reasonableness simpliciter into a single deferential standard of review called reasonableness. Thus, post-Dunsmuir, there were and are but two standards of review: correctness and reasonableness.\n\nThe Supreme Court held in Dunsmuir that the reasonableness standard was presumptively applicable in most cases, but held that the presumption could be rebutted where the question fell into one of four defined categories or where the contextual factors enumerated in Pushpanathan might require selection of the correctness standard. The four categories for application of correctness set out by the Court in Dunsmuir were: (1) constitutional questions; (2) questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers; (3) questions of central importance to the legal system as a whole; and (4) what the majority termed “true questions of jurisdiction or vires”, which were said to encompass jurisdiction “in the narrow sense of whether or not the tribunal had the authority to make the inquiry” (at para. 59).\n\nThe single framework for review under the deferential reasonableness standard was defined in Dunsmuir as being concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process but also with assessment of whether a decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and applicable law.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-54", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 99", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Notably, under Dunsmuir, the presence of a privative clause in a decision-maker’s constituent statute no longer limits the scope of the Court’s review to patent unreasonableness. Indeed, in Dunsmuir, the decision of the adjudicator under review was protected by a strongly-worded privative clause in s. 101(1) of the New Brunswick Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, which provided that “Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, an arbitration tribunal or an adjudicator is final and shall not be questioned or reviewed in any court”. The presence of this provision in the adjudicator’s constituent statute played no role in the Supreme Court’s analysis of whether the decision was reasonable. Instead, the Court applied its newly-formulated approach to reasonableness and overturned the adjudicator’s statutory interpretation.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-55", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 100", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In reaching its decision, the Supreme Court made two points of particular relevance for the present appeal. First, it noted that the sort of review it had fashioned under the newly-formulated reasonableness standard was required by rule of law principles and that judicial review is constitutionally guaranteed in Canada. At paragraphs, 27-31 Bastarache and Lebel, JJ., writing for the majority, stated as follows: [27] As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures. [28] By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-56", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 100", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [29] Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts’ constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at p. 234; also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21. [30] In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-57", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 100", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "As noted by Justice Thomas Cromwell, “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (“Appellate Review: Policy and Pragmatism”, in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, at p. V-12). In essence, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent. [31] The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, at p.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-58", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 100–101", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "1090, “[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection”. In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. As Laskin C.J. explained in Crevier: Where . . . questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s. 96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. [pp. 237-38] See also D. J. Mullan, Administrative Law (2001), at p. 50.\n\nSecond, it was clear that the newly-formulated reasonableness standard applies to both legal and factual determinations made by an administrative decision-maker. Indeed, this is inherent in the formulation of the standard itself, which requires that a reasonable decision be defensible in light of both the applicable facts and law.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-59", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 102–103", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Subsequent to the decision in Dunsmuir, courts, including this one and the Supreme Court of Canada, applied the newly-formulated reasonableness standard in judicial review of administrative decisions, including those where the decision was shielded by a privative clause (see, e.g. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458; Igloo Vikski; PSAC and the various cases listed in the appendix to that decision).\n\nIn Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa], which was decided the year after Dunsmuir, the Supreme Court of Canada confirmed that the Dunsmuir formulation of reasonableness applies under the Federal Courts Act and that questions of law are subject to reasonableness review, despite the wording of paragraph 18.1(4)(c), which contemplates review for errors of law. The majority held that the paragraph merely listed the grounds of review as opposed to the standard of review to be applied to errors of law. As for questions of fact, however, both the majority and the minority held that paragraph 18.1(4)(d) of the Federal Courts Act sets out both the grounds of review and the parameters of what reasonableness requires for review of factual errors. The majority noted that it was “[… ] clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference. This is quite consistent with Dunsmuir. It provides legislative precision to the reasonableness standard of review of factual issues in cases falling under the Federal Courts Act” (at para. 46). Justice Rothstein, writing in dissent, concurred on this point.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-60", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 104–106", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is noteworthy that the decision of the Immigration Appeal Division that was the subject of review in Khosa was protected by a privative clause, albeit the clause was less broadly worded than the one in section 67 of the Customs Act. Subsection 162(1) of the Immigration and Refugee Protection Act provided that the Immigration Appeal Division had “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”.\n\nOne further development of the case law of the Supreme Court of Canada in the wake of Dunsmuir, decided prior to Vavilov, merits mention, namely the decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 [Edmonton East]. There, the Supreme Court confirmed that the Dunsmuir reasonableness analysis applied to statutory appeals in addition to judicial review applications.\n\nWith this background in mind, it is now possible to turn to examine the decision of the Supreme Court of Canada in Vavilov.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-61", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 107", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Vavilov, the Supreme Court set out a revised framework applicable to judicial review in Canada, but, in so doing, confirmed that the “revised framework will continue to be guided by the principles underlying judicial review […] articulated in Dunsmuir [...]: that judicial review functions to maintain the rule of law while giving effect to legislative intent” (at para. 2). The Court also, with three exceptions, maintained the previous framework enshrined in Dunsmuir. More specifically, it confirmed that reasonableness is a single standard, that takes it colour from context, and that reasonableness is concerned both with the existence of justification, transparency and intelligibility within the decision‑making process and with assessment of whether a decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and applicable law. In Vavilov, the Court gave more definition to this formulation of the reasonableness standard, but did not overturn the fundamental approach set out in Dunsmuir.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-62", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 108", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In terms of the three changes to the previous framework wrought by Vavilov, the Supreme Court determined that the contextual factors from Pushpanathan (which, it will be recalled, included the presence of a privative clause) henceforth play no role in selection of the standard of review. Second, it abolished the category of so-called “true questions of jurisdiction”, which were previously held in Dunsmuir to give rise to correctness review. Following Vavilov, such questions are now instead subject to reasonableness review, just like most issues in a judicial review application. Thus, currently, unless a statute specifically sets out the applicable standard of review, reasonableness will be applied in judicial review of all questions except constitutional questions, questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers and questions of central importance to the legal system as a whole.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-63", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 109", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The third change to the previous framework for conduct of judicial review wrought by Vavilov concerns the approach to statutory appeals. The Court held that, absent statutory language to the contrary, statutory appeals henceforth will be subject to appellate as opposed to judicial review principles, thereby overturning its earlier holdings on the point, including in Edmonton East, Pezim and Southam. The standards from Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 are accordingly now applicable to statutory appeals from administrative decisions. Thus, in a statutory appeal, errors of law are now subject to review under the correctness standard whereas, where an appeal is provided for factual issues, errors of fact or of mixed fact and law from which a legal issue cannot be extricated are subject to review for palpable and overriding error.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-64", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 110", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In so deciding, the majority of the Supreme Court held at paragraph 45 of Vavilov, that “The existence of a limited right of appeal, such as a right of appeal on questions of law or a right of appeal with leave of the court, does not preclude a court from considering other aspects of a decision in a judicial review proceeding”. The majority reconfirmed this point at paragraph 52, where it noted: [...] statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism. [emphasis added]", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-65", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 111–112", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus, the Supreme Court determined that, as a matter of principle, the availability of limited appellate review does not foreclose the availability of judicial review. Indeed, such holding mirrors what subsection 18.5 of the Federal Courts Act already provides. This holding is important in the present case. While Supreme Court did not specifically address the issue now before us in Vavilov, it must have been aware that several statutes, like the Customs Act, which contain a limited right of appeal, also contain a privative clause. Thus, its failure to indicate that such a clause would bar access to judicial review is telling.\n\nMoreover, nowhere in Vavilov does the Supreme Court endorse the notion that privative clauses may bar access to judicial review or to review for particular sorts of issues. A complete bar on the availably of judicial review for any type of issue would offend the rule of law as the Supreme Court noted in Dunsmuir, a holding that was specifically endorsed in Vavilov at para. 24. Further, the Court in Dunsmuir and Vavilov did not overturn the previous decades-old case law determining that what were previously characterized as patently unreasonable factual errors, formerly called jurisdictional, remain reviewable, albeit now under the reasonableness standard.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-66", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 113–114", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "To the contrary, the Supreme Court specifically contemplates in Vavilov that factual issues may give rise to unreasonable decisions. In providing further guidance as to the conduct of reasonableness review and the characteristics of a reasonable decision, the Supreme Court in Vavilov elucidated that there are two types of flaws that may render a decision unreasonable: either a failure of rationality in the reasoning process, where reasons are given, or the untenable nature of the decision in light of the legal and factual constraints that bear on it (at para. 101).\n\nFactual issues may give rise to an unreasonable decision under either type of flaw. The majority indicated in respect of a failure of rationality in the reasoning process, quoting from Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 and Southam at paragraph 102 of its reasons in Vavilov, that a reviewing court “must be satisfied that there is a line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”. Clearly, this contemplates a decision-maker’s treatment of factual issues.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-67", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 115–116", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Court likewise contemplated that failure to reasonably address factual issues might lead to an untenable result. The majority commented on this point as follows at paragraph 126: [126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.\n\nThus, under the reasonableness standard of review delineated in Vavilov, factual determinations can be the subject of review. In light of this, I do not believe that one can read the dicta in the case as endorsing the notion that privative clauses are to be henceforth read as barring access to judicial review for all factual issues. This is particularly so in light of the limited role afforded to privative clauses by the Supreme Court over the last several decades and the recognition by that Court that the rule of law requires review for factual errors, the most serious of which were formerly called jurisdictional. Such errors now come within the ambit of unreasonable errors.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-68", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 117", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "This does not mean that privative clauses have been rendered meaningless. Rather, they are part of the relevant statutory framework – an important contextual factor in determining the parameters of a reasonable decision according to Vavilov and the case law of this Court – and such clauses highlight the deferential nature of reasonableness review for decisions falling within the ambit of the clauses. I do not believe there is any other way to reconcile the collapsing of the patent unreasonableness and reasonableness standards of review into a single standard of reasonableness other than to recognize that review is available under the reasonableness standard for what were formerly characterized as patently unreasonable errors, which include serious factual errors, even in the face of a privative clause.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-69", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "This view is shared by Professor Paul Daly, who has written extensively on administrative law matters. In a blog post entitled “Unresolved Issues after Vavilov IV: The Constitutional Foundations of Judicial Review” (17 November 2020), online (blog): Administrative Law Matters , he explained the following: Let me put the difficulty in stark terms. There is nothing, on the face of Vavilov, to prevent a legislature from eliminating reasonableness review. As the majority puts it, “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.” But the “rule of law” here means only that limited class of cases in which correctness review applies to allow the courts to furnish a final, definitive answer to a question in the interests of uniformity. As long as the courts are able to review constitutional questions, questions of central importance to the legal system or questions of overlapping jurisdiction for correctness, nothing seems to stand in the way of legislation to eliminate reasonableness review. This is not merely a theoretical difficulty. There are a couple of ways in which reasonableness review could be eliminated, directly or indirectly. In Alberta, s. 539 of the Municipal Government Act provides: “No bylaw or resolution may be challenged on the ground that it is unreasonable”. Meanwhile, in various provincial statutes, and, most famously, British Columbia, patent unreasonableness has been prescribed as the standard of review of some types of administrative action.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-70", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Indirectly, reasonableness review could be ousted by providing for a limited right of appeal. For example, the Federal Court of Appeal has interpreted various provisions relating to statutory appeals on issues of “law or jurisdiction” as excluding the consideration of factual matters. Where an appellate court whose jurisdiction is circumscribed in this way refuses to grant leave or finds that a matter raised by a party is outside the scope of the appeal clause, reasonableness review is unavailable. This would be a simple solution and would provide significant clarity. Here, however, I would invoke Einstein: everything should be made as simple as possible, but no simpler. Appearances, moreover, may be deceptive. On the face of it, Vavilov would permit legislative ouster of reasonableness review. But only on the face of it. Indeed, Hamlet springs to mind: “God hath given you one face, and you make yourself another.” First, in the same paragraph that eliminated jurisdictional error as a category of correctness review one finds the following assertion: “A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority.” The language of constitutional duty is the language of Crevier and Dunsmuir. It suggests that reasonableness review cannot, in fact, be ousted, for its elimination may prevent courts from doing their constitutional duty.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-71", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Second, although the point is not expressed in constitutional terms, the majority was very clear that it was directing administrative decision-makers to henceforth “adopt a culture of justification and demonstrate that their exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness.’” If reasonableness review has been eliminated, administrative decision-makers need never demonstrate that their exercise of public power can be justified in terms of rationality and fairness. This would knock the legs from under a central pillar of the architecture of Vavilov. The result, I submit, is that Vavilov establishes a core constitutional minimum of reasonableness review. With respect, the insistence that correctness review – and only correctness review – must be constitutionally entrenched is, and has been, misplaced. Julius Grey put the point with admirable clarity in the mid-1980s: What Crevier does entrench is some degree of review. The courts will not interfere at the same moment on all issues or against all tribunals. However, they now clearly possess a constitutional right to step in when the bounds of tolerance are exceeded by any decision-maker. Clearly, the precise location of the bounds of tolerance is left to the court and that is quite consistent with the general trends in modern administrative law. In short, the “bounds of tolerance” are supplied in Vavilov by reasonableness review. Inasmuch as constitutional questions, questions of central importance to the legal system and questions of overlapping jurisdiction have a “constitutional dimension,” correctness review is also constitutionally entrenched.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-72", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Indeed, this description of the constitutional foundations of Vavilov provides an explanation for an otherwise mysterious passage in the majority reasons. Having established institutional design as a key, grounding concept in the selection of the standard of review, the majority considered limited rights of appeal – such as those restricted to questions of law or jurisdiction – and observed: “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.” If respect for institutional design choices is so important, why can unappealable aspects of decisions nonetheless be judicially reviewed? The answer is that reasonableness review is constitutionally entrenched. A limitation of a right of appeal cannot, constitutionally, effect the elimination of reasonableness review of aspects of a decision. How, then, should courts address direct and indirect limitations on reasonableness review post Vavilov? Consider first direct limitations, that is those imposed by eliminating grounds of review or specifying a deferential ground of review. Here, the legislative language can be taken as an indication that the decision-maker should benefit from a wider margin of appreciation. As was the case with privative clauses prior to Vavilov, they would not be enforced to the letter, but their spirit would be respected. Vavilovian reasonableness review is capacious enough to accommodate this solution.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-73", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Vavilov, the majority recognized that “the language chosen by the legislature in describing the limits and contours of the decision maker’s authority” may differ from case to case, sometimes allowing “greater flexibility”, sometimes “tightly constraining the decision maker”. Where a ground of review has been eliminated, or patent unreasonableness specified as the standard of review, these statutory provisions can be taken as “language chosen by the legislature” to give “greater flexibility” to the decision-maker. In this way, reasonableness review is preserved and the constitutionally entrenched core minimum of judicial review safeguarded. This is a fairly simple solution, which takes advantage of the thick conception of reasonableness review set out in Vavilov, and provides crystalline clarity about the scope of judicial review. The second question, of indirect limitations, is slightly more complex. Where an appeal is limited to questions of law or jurisdiction, it is arguable that any issue relating to the “constitutional duty” to ensure that administrative decision-makers remain within the boundaries of their authority will fall within the appeal clause. Historically, this was certainly the case, as such clauses respected the constitutional boundaries set out in Crevier. However, the core constitutional minimum I have ascribed to reasonableness review includes matters which go beyond questions of law or jurisdiction.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-74", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 118–119", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "For example, the harsh consequences a decision visits upon an individual as a matter of fact – perhaps leaving them homeless – would probably not fall within a limited appeal clause; this would be problematic, as it would limit the courts’ ability to police the boundaries of administrative decision-makers’ authority and ensure that exercises of state power are publicly justified, to exclude any such issues. Similarly, the responsiveness of a decision to the arguments of the parties and evidence presented is a key feature of Vavilovian reasonableness review but again would not necessarily come within the scope of a limited appeal clause. The contemporaneity requirement might also be in play in some cases, as on appeal a decision-maker may seek to defend its position by relying on documents and other material not referenced in its decision; on a statutory appeal, the court’s analysis will be on the correctness of the outcome, whereas on reasonableness review, the question for the court will be whether the reasons adequately justify the outcome. These considerations help to explain why the majority in Vavilov refused to accept that a limited appeal clause could oust judicial review of matters not falling within the clause. Doing so would be unconstitutional. [Footnotes omitted and emphasis added]\n\nThe foregoing approach, moreover, is consistent with section 18.5 of the Federal Courts Act, the statute that creates the right to judicial review before the Federal Courts. As noted, it provides that access to judicial review is barred only to the extent a right of appeal otherwise exists in respect of an issue.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-75", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 120–122", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "The combined effect of this provision and the treatment of privative clauses in the case law of the Supreme Court of Canada leads to the conclusion that factual errors made by the CITT may be reviewed in the context of a judicial review application under the reasonableness standard. Conversely, errors of law are reviewable under the correctness standard in the context of a statutory appeal under section 68 of the Customs Act. Any overlap in proceedings could be addressed through joinder of an appeal with an application or other appropriate directions as might be required from time to time.\n\nI hasten to underline that the scope of review in respect of factual matters is limited, providing for intervention only in a narrow range of cases beyond those where there is a complete lack of evidence on a point. Thus, there should be relatively few cases where an overlap might occur.\n\nParagraph 18.1(4)(d) of the Federal Courts Act provides that erroneous factual findings may provide the basis for intervention only if the decision was based on them and if they were “made in a perverse or capricious manner or without regard to the material before” the decision maker. The statutory formulation of the test before the Federal Courts for unreasonable factual determinations is akin to what the Supreme Court said about the nature of unreasonable factual findings in Vavilov, where the majority noted at paragraph 126 that unreasonable factual determinations arise where the “… decision maker has fundamentally misapprehended or failed to account for the evidence before it”.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-76", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 123", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "As concerns, more specifically, the case law interpreting paragraph 18.1(4)(d) of the Federal Courts Act, in Rohm & Haas Canada Limited v Canada (Anti-Dumping Tribunal) (1978), 22 N.R. 175, 91 D.L.R. (3d) 212, Chief Justice Jacket defined the notion of perversity as “willfully going contrary to the evidence” (at para. 6). As for the criteria of “capriciousness” or of the finding’s being made without regard to the evidence, such would include circumstances where there was no evidence to rationally support a finding, (see, e.g. Stelco Inc. v. British Steel Canada Inc., [2000] 3 FC 282 (C.A.), 20 Admin. L.R. (3d) 159 at para. 22) or where the decision maker failed to reasonably account at all for critical evidence that ran counter to its findings. As noted by Justice Evans in the oft-cited Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), [1999] 1 FC 53, 157 F.T.R. 35 at paragraphs 14-17: [14] It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-77", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 123", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made \"without regard to the evidence\": see, for example, Rajapakse v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 649 (F.C.T.D.); Sivasamboo v. Canada (Minister of Employment and Immigration), 1994 CanLII 3532 (FC), [1995] 1 F.C. 741 (F.C.T.D.). [15] The Court may infer that the administrative agency under review made the erroneous finding of fact \"without regard to the evidence\" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result. [16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-78", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 123", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact \"without regard to the evidence\": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-79", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 124", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Turning now to the relevant case law of this Court, as noted, an issue very similar, if not identical, to the present was before the Court in PSAC. There, the Federal Public Sector Labour and Employment Board (the FPSLREB) intervened in a judicial review application from one of its decisions to argue that the combined effect of the privative clause in its constituent statute and the decreased role of jurisdictional error in the Supreme Court’s administrative law jurisprudence was to render its legal and factual determinations largely unreviewable. The relevant privative clause, identical to the privative clause in the constituent statute of the Canada Industrial Relations Board, is set out in subsection 34(1) of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, enacted by the Economic Action Plan 2013 Act, No. 2, S.C. 2013, c. 40. It provides: No review by court Impossibilité de révision par un tribunal 34 (1) Every order or decision of the Board is final and is not to be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act. 34 (1) Les décisions et ordonnances de la Commission sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi sur les Cours fédérales et dans le cadre de cette loi.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-80", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "This Court roundly rejected the submissions of the FSPLREB, holding at paragraphs 23-33 as follows: [23] First, they fly in the face of the myriad decisions of this Court and of the Supreme Court of Canada in which decisions of the Board, the CIRB or their predecessors, involving alleged errors of law, fact or mixed fact and law, have been reviewed under the deferential reasonableness standard (or previously under the patent unreasonableness standard) despite the presence of the privative clauses in subsection 34(1) of the FPSLREBA and subsection 22(1) of the Canada Labour Code. The 43 cases listed in the Appendix to these reasons have been decided on this basis in the last two years. For each prior year, several additional cases would be added to the list. Thus, contrary to what the Board asserts, this issue has been definitively settled by the jurisprudence. [24] Second, as this Court held in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at para. 18, the term “jurisdiction”, when used in a provision like paragraph 18.1(4)(a) of the Federal Courts Act, must be understood in its appropriate historical context. This is in accordance with the principles of statutory interpretation, which require a court to have regard to the appropriate context when interpreting legislation: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, 221 N.R. 241; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-81", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "[25] In 1990, when Parliament adopted subsection 18.1 of the Federal Courts Act, errors of jurisdiction in Canadian administrative law were understood to include errors of law, in circumstances where the Board was required to offer a correct interpretation, and patently unreasonable legal interpretations, as was noted in P.S.A.C. v. C.F.P.A.; see also C.A.I.M.A.W. v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] 2 S.C.R. 983 at pp. 1003-1004, 102 N.R. 1. Such errors were also understood to include findings of fact that would be caught by paragraph 18.1(4)(d) of the Federal Courts Act, as was noted in C.U.P.W. v. Healy. Thus, properly read in context, “jurisdictional errors” for purposes of setting forth a ground (as opposed to a standard) of review within the meaning of subsection 18.1(4) of the Federal Courts Act include situations where the Board makes an unreasonable legal interpretation or an error of fact within the ambit of paragraph 18.1(4)(d) of that Act. [26] Third, contrary to what the Board asserts, the decisions of the Supreme Court of Canada in Dunsmuir and Khosa cannot be understood to narrow the range of Board decisions that may be judicially reviewed. Rather, they hold that a common standard of review framework is to be applied to all federal administrative decision-makers and that, unless one of the exceptions discussed in Dunsmuir obtains, the applicable standard of review is reasonableness. This is evident both from the reasons of the majority in Khosa, at paragraphs 43 to 51 and from the reasons of Rothstein J. at paragraph 111 in the same case, where he discussed the import of the privative clause found in section 22 of the Canada Labour Code.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-82", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "He there wrote as follows: Section 22(1) expressly provides for review on questions of jurisdiction, procedural fairness, fraud or perjured evidence, but excludes review for errors of law or fact through express reference to s. 18.1(4) of the [Federal Courts Act]. Where the privative clause applies, i.e. with respect to s. 18.1(4)(c), (d), or (f), the court is faced with a tension between its constitutional review role and legislative supremacy. In such cases, the Dunsmuir analysis applies. There is no role for the Dunsmuir standard of review analysis where s. 22(1) expressly provides for review on questions of jurisdiction, natural justice and fraud. Correctness review applies in these cases. [27] While the majority in Khosa disagreed that the Dunsmuir analysis applied only to paragraphs 18.1(4)(c) to (f) of the Federal Courts Act, they did not disagree that issues falling within the purview of paragraphs 18.1(4)(c) to (f) are subject to the Dunsmuir analysis. Thus, when read in their appropriate context, subsection 34(1) of the FPSLREBA and subsection 18.1(4) of the Federal Courts Act do not preclude review in the instant cases. [28] Fourth, the cases on which the Board relies enumerated in paragraph 14 of these Reasons do not constitute a binding ruling on this issue. Rather, to the extent these cases may contain passages that might support the Board’s interpretation, the Court’s comments are made only in passing and do not settle the issue. The relevant authorities, which do settle the issue, are P.S.A.C. v. C.F.P.A. and C.U.P.W. v. Healy, which, as already noted, directly contradict the Board’s arguments. Also relevant are the multitude of cases where this Court has reviewed under the reasonableness standard decisions like those challenged in this application.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-83", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus, the case law relied upon by the Board is not determinative. [29] Fifth, contrary to what the Board asserts, its interpretation would not lead to greater expedition. Under the Board’s approach, this Court would be required to decide as a preliminary issue what paragraph in subsection 18.1(4) of the Federal Courts Act applies to each argument advanced in an application for judicial review and to determine the Court’s jurisdiction based on the characterization of issue. This sort of formalistic preliminary question-type analysis harkens back to the now abolished division in judicial review matters that limited review under the former section 28 (as opposed to section 18) of the Federal Courts Act to decisions made on a judicial or quasi-judicial basis: see Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177 at p. 197, 58 N.R. 1 (per Wilson J.); Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879 at pp. 895-902, 100 N.R. 241. This requirement led to convoluted, costly and lengthy debates about the character of a decision under review that did little to advance the substance of litigation, and these requirements were consequently abolished in the 1990 amendments to the Federal Courts Act: see An Act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, S.C. 1990, c. 8, s. 8. To adopt the Board’s approach would reintroduce similar debates and delays in the judicial review process, which are antithetical to the sound labour relations that the FPSLRA is designed to foster. Thus, the Board’s interpretation would in fact end up undermining the purpose of the Act.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-84", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "[30] Finally, contrary to what the Board says, its interpretation runs afoul of the rule of law concerns that provide the constitutional underpinning for judicial review of administrative action by the independent judicial branch: see Dunsmuir at paras. 27-29; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 at para. 13, 421 D.L.R. (4th) 381. Given recent pronouncements by the Supreme Court of Canada, the scope of jurisdictional issues that arise in administrative law cases is exceedingly limited, if such issues may still even be said to exist at all. Although the category of true questions of jurisdiction was recognized in Dunsmuir at para. 59 as attracting correctness review, the Supreme Court has repeatedly emphasized its narrow and exceptional nature: see, for example, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 at para. 26; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3 at para. 32. In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 at para. 41, 36 Admin L.R. (6th) 1, the Supreme Court cast doubt on the category’s future: 41. The reality is that true questions of jurisdiction have been on life support since Alberta Teachers. No majority of this Court has recognized a single example of a true question of vires, and the existence of this category has long been doubted.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-85", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 125–126", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "Absent full submissions by the parties on this issue and on the potential impact, if any, on the current standard of review framework, I will only reiterate this Court’s prior statement that it will be for future litigants to establish either that the category remains necessary or that the time has come, in the words of Binnie J., to “euthanize the issue” once and for all (Alberta Teachers, at para. 88). [31] As the Board acknowledges, the recognition that there are few, if any, questions of jurisdiction could result in its decisions being largely unreviewable. This cannot be. [32] In Dunsmuir, the Supreme Court of Canada underscored that judicial review must be available as a constitutional imperative and cannot be ousted by a privative clause. At paragraph 31, Bastarache and LeBel JJ., writing for the majority, stated: 31. The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). [33] Thus, for all the foregoing reasons, contrary to what the Board asserts, its decisions in the instant cases are amenable to review by this Court.\n\nIn my view, the foregoing is determinative and binding on this panel in light of the principles applied by this Court regarding the binding nature of decisions reached by a panel of the Court on subsequent panels (Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149, at paras. 8-10).", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-86", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 127–128", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "On the other hand, the decisions in Emerson Milling and Bell Canada are not dispositive. Both dealt with the scope of errors that could be reviewed in the context of an appeal for issues of law as opposed to the issue now before us, namely, whether an application of judicial review remains open for issues of fact in the face of a privative clause. Moreover, as my colleague notes, the legislation involved in Emerson Milling and Bell Canada allowed for appeals to the federal cabinet in addition to the statutory appeal to this Court. Such provisions might well have rendered access to judicial review for factual or policy issues unavailable in Emerson Milling and Bell Canada under section 18.5 of the Federal Courts Act.\n\nFinally, the case law of this Court in cases of this nature and, indeed, the decision of the Supreme Court of Canada in Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski], considered both legal issues and issues of mixed fact and law in the context of statutory appeals, as my colleague notes at paragraph 21 of his reasons. That this occurred is not surprizing given that the Supreme Court in its administrative case law decided prior to Vavilov had removed all distinctions between statutory appeals and applications for judicial review. However, by reasons of the new edict that appeals are henceforth to be decided under appellate as opposed to judicial review principles, it is now necessary that the small range of reviewable factual issues that do not constitute errors of law as they go slightly beyond findings based on a lack of evidence be pursued by way of an application for judicial review.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-87", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 129–131", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "From the foregoing, it follows that this appeal should be dismissed as the issues of mixed fact and law raised by the appellant cannot be raised in the context of an appeal under section 68 of the Customs Act. However, even if the appellant had filed an application for judicial review, the same result would obtain as the alleged errors of mixed fact and law raised by the appellant fall well short of the sort of error that might lead to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn this regard, as my colleague notes, the appellant challenges the CITT’s consideration of the practices and procedures of the WCO Committee and of the opinion of an interior designer who testified as a witness. Consideration of these matters cannot be said to be “perverse” and each was rationally connected to the issues before the CITT. The CITT also adequately explained the use it made of such evidence in its reasons. Its consideration of the matters impugned by the appellant accordingly would not give rise to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn light of the foregoing, I would dismiss this appeal, with costs. “Mary J.L. Gleason” J.A. “I agree. René LeBlanc J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-466027-1", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 1–3", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal from a decision of Justice Zinn of the Federal Court (the Applications Judge) dated November 7, 2018, which granted two applications for judicial review made by Honey Fashions Ltd. (Honey Fashions, or the respondent). The Federal Court set aside the decisions made by the Canada Border Services Agency (CBSA), which denied Honey Fashions’ claims for duty remission made under the Textile and Apparel Remission Order, 2014, SOR/2014-278 (TARO 2014).\n\nThe central issue is whether it was unreasonable for the CBSA to apparently reverse an administrative practice and deny name change requests to designate Honey Fashions as importer of record of goods that had been previously imported by others, so that Honey Fashions could obtain remissions under the TARO 2014 program. For the reasons that follow, I have concluded that, in light of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 (Vavilov), the Federal Court did not err in quashing these two decisions of the CBSA. The appeal should therefore be dismissed.\n\nAll goods imported to Canada are subject to the provisions of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), the Customs Tariff, S.C. 1997, c. 36, the Excise Act, 2001, S.C. 2002, c. 22, the Excise Tax Act, R.S.C. 1985, c. E-15, and the Special Import Measures Act, R.S.C. 1985, c. S-15, by which customs duties and taxes are assessed. However, the Governor in Council may, on recommendation of the responsible minister, remit all or a portion of the customs duties by way of a remission order.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-2", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 4–6", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "In 1988, the Department of Finance introduced a series of remission orders, intended to help Canadian textile and apparel manufacturers face the challenges of increased international competition. This program allowed listed companies (eligible companies) to import certain goods duty-free as long as they met the conditions specified in the orders. As a result, it was thought that Canadian manufacturers could rationalize their production by specializing in only a few lines while earning remission credits to import complimentary goods, thereby allowing Canadian apparel manufacturers to market a complete fashion line.\n\nIn 1997-98, these orders were superseded by updated versions to comply with the North American Free Trade Agreement (NAFTA). The new version of the program set a capped annual remission entitlement for each listed company, based on the total amount of remission that each manufacturer had received in 1995. The six remission orders listed below formed the basis of the TARO program:\n\nMany manufacturers preferred to focus on manufacturing textiles and apparel in Canada. They had limited, if any, interest in becoming importers. As a result, they began looking for ways to earn the benefits of the program as Canadian manufacturers without being obliged to start or expand an importing business. It appears that for many years, officials of the Department of Finance and of the CBSA allowed eligible Canadian manufacturers to contract with Canadian importers so that Canadian manufacturers could take advantage of their remission entitlements, all with the goal of ensuring that the benefits of the remission program would flow to the Canadian manufacturers.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-3", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 7", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "As evidence of that practice, the respondent filed the affidavit of Stephen Yanow, the president of a blouse manufacturer which used the TARO program and whose main business between 1998 and 2012 was matching eligible Canadian manufacturers with Canadian importers who imported qualifying goods. He testified that officials of the Department of Finance approved of that practice, and attached as an exhibit to his affidavit a memorandum (for information) from an official of that Department to that effect. The Applications Judge quoted that memorandum in full at paragraph 10 of his reasons. The memorandum addressed the emerging practice of “remission brokers”, which it described in the following way: The “remission broker” is a recent phenomenon. These are customs brokers or consultants who identify manufacturers who have not used all of their import entitlement. For a fee, they locate importers who are interested in buying the entitlement. Depending on how you look at it, they essentially provide a service to manufacturers to locate importers willing to purchase excess entitlement. In this way, the manufacturers will receive some of the remission benefit (in the form of cash) that they otherwise would not have used. Appeal Book, vol. 2, p. 447", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-4", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 8–9", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Department official advised that such a possibility was contemplated at the inception of the program, and that such a practice was in compliance with the conditions set out in the remission Orders and the Customs Act: Finance was apprised at the inception of the program about the possibility of selling of entitlement and, as it is currently taking place, the practice is in compliance with the conditions set out in the remission Orders and the Customs Act. (There is no requirement in the Orders that the importer of record be the owner of the goods imported. Manufacturers are simply acting as agents for third party owners and paying a remitted duty – the benefit of which is passed on to the owner.) In fact, it could be argued that it is the marketplace at work. Appeal Book, vol. 2, p. 448\n\nIn the summer of 2010, the CBSA discovered irregularities in its administration of the TARO program regarding the transfer of remission entitlements between several companies. It suspended the processing of all TARO program claims in the fall of 2010, and undertook a comprehensive Quality Assurance Review (QAR) of the program. As a result, Honey Fashions’ claims for duty remission on goods imported in 2006, 2007, 2008 and 2009 were held in abeyance.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-5", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 10–12", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "The QAR confirmed three errors committed by the CBSA, one of which being that the CBSA had been permitting certain eligible companies to transfer their remission entitlement, presumably for a fee, to other companies in cases it should not have. Once these irregularities were discovered, the CBSA developed and issued Memorandum D8-11-7 on November 28, 2012 (Policy on the Transfer of Entitlement Pursuant to the Textile and Apparel Remission Orders), which explains how entitlements to remission of customs duties pursuant to the remission orders may be transferred. It explains that the entitlements of an eligible manufacturer cannot be bought, sold or transferred, but can be re-allocated permanently to another company when that other company acquires, purchases or otherwise takes control of the operation of the eligible manufacturer.\n\nThe above-mentioned memorandum additionally recognizes the possibility of entering into “partnering agreements”. Paragraph 5 of the Memorandum states as follows: Subject to conditions, an eligible manufacturer or eligible fabric producer (one who is named in the Schedule to the Order), may enter into a partnering agreement with another company in order to realize its full remission allocation in a given year. In this way, the eligible company is the importer of record for the goods and the other company is the owner or consignee of the goods.\n\nSuch an agreement is subject to some conditions, one of which is that the agreement must be finalized and dated “prior to the release of the imported goods by the CBSA” (Memorandum D8-11-7, at para. 5(b)).", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-6", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 13", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "Paragraph 6 of the Memorandum also seemingly allows a party that has imported goods and paid the duty on those goods to be subsequently replaced as the importer of record by an eligible manufacturer, by way of a name change request. Such a name change request must be made at the same time and on the same form as the claim for remission by the eligible manufacturer. This paragraph reads in part as follows: If goods that are subject to a partnering agreement and for which remission is or will be claimed have already been imported and accounted for in the name of the other company (i.e., the owner or purchaser), it will be necessary to amend the importer name before remission will be approved. In such cases, a name change request must be submitted in accordance with instructions set out in CBSA Memorandum D17-2-3, Importer Name/Account Number or Business Number Changes.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-7", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 14–15", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "Memorandum D17-2-3, referenced in Memorandum D8-11-7, outlines the procedures to be followed when an importer name change is necessary due to error on the part of the importer or the CBSA. Pursuant to section 7.1 of the Customs Act, all information provided to the CBSA must be “true, accurate and complete”. Paragraphs 14 to 22 of this Memorandum set out the procedure to be followed where the incorrect party has been named as the importer of record but where the true importer was entitled to conditions, exemptions and/or privilege (such as remission of duties under TARO). Paragraph 22 provides that the name change request must be: (a) supported by documents (e.g., purchase orders, commercial invoices, cancelled cheques, fax transmissions, written correspondence), which clearly indicate the claimant’s interest and the part played by the claimant in the import transaction; (b) supported by a letter from the importer of record, disclaiming involvement in the importation; and (c) supported by a clear and complete explanation of why the party named as the importer on the original accounting document was so named, and why the importer/broker/agent now believes that a second party is the true importer.\n\nThe CBSA recognized that the errors identified in the QAR were entirely its fault. Since Schedule 1 manufacturers who received remissions had relied in good faith on representations made and authorizations issued by CBSA officials, and had made business decisions accordingly, the CBSA concluded that it would be unfair to revoke the authorizations and seek to collect the duty that had been remitted.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-8", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 16–18", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "To correct the situation, TARO 2014 was enacted. It governed the administration of the TARO program from 2008 until 2012, the year the TARO program ended. TARO 2014 was designed to ensure that eligible Schedule 1 manufacturers received their full entitlement to remission up to 2012. Remissions to the companies listed in Schedule 1 to the Order were subject to the following conditions: a) the goods were imported into Canada between January 1, 2008 and December 31, 2012; b) the erroneous authorization for the remission must have been issued by the CBSA on or before December 31, 2012; and c) an application for the remission is received by the CBSA on or before the deadline set out in Schedule 2 of the Order. The conditions from the six original and separate TARO programs were also incorporated into TARO 2014.\n\nHoney Fashions is one of the companies listed on Schedule 1 of TARO 2014. Three of its drawback claims are relevant for the purpose of this appeal, each of which was accompanied by a name change request:\n\nThe last two claims were essentially resubmissions of past drawback claims that had been refused by the CBSA in February and August 2016 because they did not provide the proper documentation required in accordance with Memorandum D17-2-3. The resubmitted claims were accompanied by additional letters and arguments, but Honey Fashions did not provide the substantiating documents required by the Memorandum for their name change requests. On September 6, 2017 a senior official of the CBSA denied both of the resubmitted claims, on the basis that the documents provided “do not clearly establish that the name change is the result of an error of the importer or the [CBSA] or that the terms of Memorandum D17-2-3 have been met” (Appeal Book, vol. 1, pp. 175 and 292).", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-9", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 19–21", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "Applying the reasonableness standard, the Federal Court found in favour of Honey Fashions. Reasoning that the decision to deny Honey Fashions the remissions under the TARO program stands or falls with the decision not to accept the name change requests, the Court focused on that decision and determined that it was made in breach of the CBSA’s duty of fairness in addition to being arbitrary and unreasonable.\n\nThe Federal Court found that Honey Fashions had a legitimate expectation, based on a clear, unambiguous and unqualified regular practice, that the CBSA would accept their name change requests and approve the drawback claims. In denying the claims without detailed reasons for what the Federal Court characterized as a “change in the procedure for changing the importer of record”, the CBSA treated Honey Fashions unfairly (Reasons, at paras. 43-48).\n\nThe Federal Court also found that the CBSA’s decision was unreasonable because it lacked justification, transparency and intelligibility. In the Federal Court’s view, there was no material difference between the claim filed in 2010 and the claims filed in 2015 (and refiled in 2016). Although acknowledging that CBSA officials are not subject to the doctrine of stare decisis, the Federal Court found the decision to grant the former but deny the latter without additional explanation to be arbitrary, and thus unreasonable.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-10", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 22–25", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, the only issue to be decided by this Court is whether the Applications Judge erred in its application of the reasonableness standard of review to the CBSA’s decisions. The parties have also challenged the Applications Judge’s ruling on procedural fairness but for reasons developed below, I do not think that issue need be addressed here, if only because it appears to be a mere restatement of the conclusion on substantive reasonableness.\n\nThe Federal Court’s finding that the CBSA has jurisdiction to determine the identity of the importer of goods into Canada is not under appeal.\n\nThe original appellants in this appeal were the Attorney General of Canada and the President of the Canada Border Services Agency. They were the unsuccessful respondents in the application for judicial review in the Federal Court.\n\nAccording to Rule 303 of the Federal Courts Rules, S.O.R./98-106, however, the Attorney General of Canada should have been the only respondent in the Federal Court. As a result, the Attorney General of Canada is the only proper appellant in this Court. The style of cause should therefore be amended to reflect that change, and the President of the Canada Border Services Agency should be removed as an appellant.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-11", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 26–27", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "After the hearing of this appeal, the Supreme Court of Canada released its decision in Vavilov. This Court thus requested further written submissions from the parties with respect to the applicable standard of review. There is no dispute between the parties that when this Court sits on appeal of a decision by the Federal Court reviewing an administrative decision, our task is to determine whether the application judge correctly identified the appropriate standard of review and applied it correctly: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47 [Agraira]. In the case at bar, both parties agree that reasonableness remains the applicable standard of review.\n\nUnderstandably, the appellant and the respondent focus on different aspects of the Vavilov decision. The appellant acknowledges that where a decision maker departs from longstanding practices or established internal authority, the departure must be explained in its reasons. However, the appellant argues that the CBSA did not break with its longstanding practices because it has consistently considered importer name change requests in the context of its evaluation of remission claims under TARO. In the appellant’s view, Honey Fashions’ longstanding practice of submitting post-importation name change requests without substantiating evidence must not be conflated with the CBSA’s past decisions to accept its request without substantiating evidence.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-12", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 28–29", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "The respondent retorts that the majority in Vavilov stressed the importance of justification for administrative decision makers, and that a more robust form of review is called for to ensure consistency and to guard against the threat of arbitrariness. Accordingly, in the respondent’s view, the Federal Court was right to focus on the CBSA’s reasons and on the need for the CBSA to explain its abrupt policy change. Relying more explicitly on paragraph 131 of Vavilov, the respondent stresses that one of the factors constraining the reasonableness of a decision is the need to provide explanations when a decision departs from longstanding practices or established internal decisions. Needless to say, Honey Fashions strongly disagrees with the appellant’s submissions that past practices and internal decisions are not the same.\n\nIn my view, the respondent rightly points to the importance given by the Supreme Court in Vavilov to the justification of a decision. To the extent that reasons have been provided, the reviewing court must pay close attention to those reasons to ensure that the decision is the result of an “internally coherent and rational chain of analysis” (Vavilov, at para. 85). In other words, the reasons may be as important as the result. As the majority stated at paragraph 86: In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-13", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 30–32", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "In addition to the reasons provided, Vavilov directs the reviewing court to examine the reasonableness of an administrative decision in terms of the legal and factual constraints on the decision maker’s discretion. Among the constraints that bear on the reasonableness of a decision are the governing statutory scheme, the evidence before the decision maker, past practices and past decisions, and the impact of the decision on the affected individual. I will turn to each of these factors as they are the most relevant to the resolution of this dispute.\n\nBecause they exercise delegated authority, administrative decision makers must obviously act within the powers they receive by statute; accordingly, the governing statutory scheme is of crucial importance in determining the reasonableness of their decisions. In that respect, the range of discretion given to a decision maker will be of particular interest in assessing whether they have acted within the confines of the law.\n\nIn the case at bar, the appellant claims that the CBSA’s decisions comply with the rationale and purview of the statutory scheme under which the decisions were made, namely section 7.1 of the Customs Act and the TAROs. For situations like this, the D8-11-7 Memorandum directs parties to file name change requests “in accordance with instructions set out in CBSA Memorandum D17-2-3”. In each of the remission claims at issue, Honey Fashions provided accounting documentation that identified another company as importer of the qualifying goods. The drawback claims included letters noting the CBSA’s memorandum on importer name changes, and indicating that “incorrect party has been named as importer of record” (Tevel affidavit, Appeal Book, vol. 1, Tab 7, Ex. E, pp. 332, 341-342, 351, 354 and 362).", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-14", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 33–35", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "The D17-2-3 Memorandum is very clear on what documentation is required in support of a name change application (see paragraph 14, above). A pre-importation partnering agreement would have been acceptable substantiating evidence, as well as any documents clearly establishing that the claimant was the true importer. Honey Fashions did not provide the necessary documentation; instead, it tried to rely on a declaration that it was assuming the obligations of importer of record with the consent of the original importer (Appeal Book, vol. 1, pp. 300, 387).\n\nI agree with the appellant that for the CBSA to comply with the Customs Act, it had to ensure that the person who causes the goods to be exported to Canada was truly the importer before it could approve retroactively an importer name change request. This is consistent with section 7.1 of the Customs Act, which requires that all information provided to the CBSA shall be true, accurate and complete, and with the plain and ordinary meaning of “importer”. There is certainly an argument to be made that if the CBSA is precluded from excluding post-importation involvement and is forced to accept name change requests on the basis of a partnering agreement entered into after the goods are effectively imported to Canada, it would be constrained from performing its regulatory functions of verification and would be acting contrary to section 7.1 of the Customs Act.\n\nIf the reasonableness of the decisions under review were to be assessed on the sole basis of their conformity with the overall legislative scheme pursuant to which they were made, they might pass muster. The decisions of the CBSA are arguably consistent with the Customs Act and the applicable TAROs. To that extent, they may be considered reasonable in the abstract.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-15", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 36", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "The respondent claims, however, that the impugned decisions of the CBSA are at odds with past practices and past decisions. Relying on testimonial and documentary evidence, Honey Fashions argued that there was a consistent and longstanding departmental practice of accepting post-importation name changes on the basis of post-partnering agreements. The Applications Judge accepted that evidence in the following terms: [47] The uncontradicted evidence before the Court is that Honey Fashions has participated in the TARO Program since its inception, that it was not a major importer of apparel but took full advantage of its entitlements under the program by becoming the importer of record of goods previously imported by others. It did so by filing a name change with the CBSA to record it as the importer of record, with the agreement of the initial importer. This procedure was accepted and arguably endorsed by the CBSA. Until the decisions under review were made “CBSA officials consistently accepted the name change notification to change the importer of record, and processed Honey Fashions’ remission applications on the basis that Honey Fashion was the importer of record.” The change in the procedure for changing the importer of record had dramatic consequences to Honey Fashions.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-16", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 37", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "In its initial submissions, the appellant stressed that the doctrine of stare decisis does not apply to administrative decision makers, and that they are not required to explain the differences between two separate decisions. Following the release of Vavilov, counsel recognized that departures from longstanding practices or established internal authority must now be explained, but argued that there was no such departure in the case at bar. In a somewhat specious argument, counsel contends that the CBSA’s practice has not changed in the context of a claim for remission of customs duties because its decision to accept the name change in the past is not a practice but a substantive outcome. To quote from their written submissions (at paragraph 6 of their January 31, 2020 letter), “[e]ssentially, Honey Fashions conflates their alleged long-standing practice of submitting post-importation name change requests without substantiating evidence, with the CBSA’s past decisions to accept their request without substantiating evidence”. In my view, this is a distinction without a difference and, as such, an argument without merit.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-17", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 38", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "First of all, I note that the Supreme Court uses “past practices” and “past decisions” interchangeably in Vavilov, and is more concerned with the need for coherence and justification than with semantics. What matters is that like cases be treated alike and that outcomes shall not be dependant on the identity of the individual decision maker (at para. 129). In that spirit, it matters not whether a course of action is labelled as “past practices” or “past decisions”. Of course, I agree with the appellant that the CBSA must always be able to exercise its discretion to determine how and when verification for compliance is conducted, and to consider importer name change requests in the context of its evaluation of remission of customs duty claims under TARO. However, if the evidence establishes that the CBSA has consistently allowed importer name change requests for remission of customs duties without requiring substantiating evidence showing pre-importation partnering agreements, these past decisions amount to past practices (both for Honey Fashions and the CBSA).", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-18", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 39", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "As previously mentioned at paragraph 18 of these reasons, both the 2011 and 2012 claims were rejected without any explanation or justification as to why those claims ought to be treated differently from earlier ones. This is particularly egregious considering that the 2009 claim had been accepted on the basis of the same information given by Honey Fashions (although admittedly on the basis of the pre-QAR policies and before CBSA issued the D8-11-7 Memorandum). Once again, this is not to say that the CBSA was bound to follow the same course of action it had followed in the past. CBSA was indeed entitled to modify its policy in order to comply with the Customs Act, provided that in so doing, its interpretation is reasonable. However, in the circumstances of this case, the CBSA should have provided an explanation to Honey Fashions with respect to its departure from past practice. As the Supreme Court stated in Vavilov (at para. 131): We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-19", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 40–41", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "I am therefore of the view that the decisions of the CBSA were not reasonable in light of this important contextual consideration in the present case. It was not sufficient to claim, ex post facto, that the decisions made by the CBSA official complied with the rationale and purview of the statutory scheme under which they were made. In light of the impact of the decisions on the respondent, CBSA had to provide it with an explanation as to why the past practice was not followed and, presumably, why a post-importation partnering agreement would be contrary to section 7.1 of the Customs Act and would undermine the customs scheme when such agreements had been accepted without question in the past. Accordingly, on the basis of the recent teachings of the Supreme Court in Vavilov, it was open to the Federal Court to hone in on the fact that the CBSA official made no reference to his earlier decision or to the longstanding departmental practice of accepting name change requests without certain supporting documentation. I therefore agree with the Federal Court’s conclusion that the CBSA’s decisions lack justification, transparency and intelligibility.\n\nFinally, the appellant challenges the Federal Court’s factual finding that the CBSA had a policy dating back from the inception of the TARO program of approving post-importation name changes. They argue that, in the absence of direct evidence, the Federal Court could only consider serious, precise and concordant presumptions, the like of which do not arise from this record. The respondent, on the other hand, asserts that there was direct evidence as well as supportive indirect evidence allowing the Applications Judge to find that the CBSA “arguably endorsed” such a practice.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-20", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 42–43", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "I accept the appellant’s submission that the testimonies of Bernie Tevel and Stephen Yanow are not sufficient to establish that the CBSA was aware of and endorsed Honey Fashions’ practice to claim duty remission on goods previously imported by others. These individuals could certainly testify that the CBSA routinely accepted name change notifications changing the name of the importer of record on the customs entry forms from the original importer to the Canadian manufacturer, without any indication as to whether the agreement was made prior to or after the importation. But they cannot purport to know what the CBSA was aware of at the time these decisions were made, and in particular whether the CBSA was aware that the importer name changes were based on post-importation agreements. This is precisely why the Federal Court was careful to state that this procedure was accepted “and arguably endorsed” by the CBSA (Reasons, at para. 47).\n\nThis is not the only basis, however, upon which the Federal Court came to the conclusion that there is direct evidence that the CBSA consistently accepted post-importation name change notifications to allow Schedule 1 manufacturers to claim remissions for goods previously imported by others. It noted that this administrative process was not flagged during the QAR as an unacceptable or illegitimate practice, and was not objected to in the course of the audits to which Honey Fashions was subjected at least three times (Reasons, at para. 48). These factual findings are entitled to a high degree of deference.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-21", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 44–46", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant further submits that the Federal Court improperly relied on indirect evidence (primarily an internal memorandum from a Minister of Finance official dated April 26, 1993, and Memorandum D8-11-7) to conclude that the CBSA accepted post-importation name change notifications. I agree with the appellant that these two documents are inconclusive and would be insufficient, in and of themselves, to establish that the CBSA has endorsed and condoned post-importation name change agreements. However, this is beyond the point.\n\nFirst of all, it is not at all clear that the Federal Court relied on that evidence to reach its conclusion. There was enough direct evidence to the same effect in the record. More importantly, Memorandum D8-11-7 could not have been offered as proof of the CBSA practice, since it was only released in late 2014. It could only be presented as being consistent with the alleged CBSA practice and in support of the direct evidence. Ultimately, I find the indirect evidence of little help for the resolution of the questions before us.\n\nIn light of all the foregoing, I am of the view that the Federal Court did not err in finding that the decision by the CBSA not to accept the name change requests was unreasonable. If anything, that conclusion is bolstered by the recent decision of the Supreme Court in Vavilov, with its insistence on the need for a reasonable decision to be justified in light of the legal and factual constraints that bear on that decision. A decision maker cannot deviate from earlier decisions or from a longstanding past practice, especially when it is too late for those affected by these decisions to adjust their behaviour accordingly, without providing a reasonable explanation for that departure.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-22", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 47–49", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "As for the Federal Court’s finding that the CBSA’s refusal to accept Honey Fashions’ importer name change requests were made contrary to its legitimate expectations, I need not say much. I agree with the appellant that the respondent did not raise the duty of fairness before the Federal Court either in its Notices of Application, in its Memoranda of Fact and Law, or at the hearing. Allegations were made that the decisions being challenged were unfair and arbitrary, but these arguments were meant to substantiate the purported unreasonableness of the decisions, not a breach of procedural fairness.\n\nAs a matter of fairness, courts should constrain themselves to the grounds raised in the pleadings. As the Supreme Court stated in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543 at para. 9, “each party is entitled to know and respond to the case that it must answer”. I accept that the respondent did argue unfairness in relation to its legitimate expectations, but this was not sufficient in my view to squarely raise procedural fairness per se. It is clear from a transcript of the hearing that the parties never joined issue on that question (see, in particular, Appeal Book, vol. 2, at pp. 629, 657 and 671), and it was therefore an error of law for the Federal Court to conclude that the appellant violated Honey Fashions’ legitimate expectations.\n\nBe that as it may, the Federal Court’s procedural fairness analysis was really a substantive review in disguise. Its conclusion with respect to procedural fairness appears to be nothing more than a restatement of its conclusion on substantive reasonableness, as is readily apparent from these two findings:", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-23", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 50–51", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "Finally, I also agree with the appellant that the doctrine of legitimate expectations cannot give rise to substantive rights: Agraira at para. 97; Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, 83 D.L.R. (4th) 297 at p. 557; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 75. Past practices, therefore, could not ground a legitimate expectation that a request for a name change to the importer of record would be granted in the future even if such a practice is established. The Court may only grant appropriate procedural remedies in the event that the conditions for the application of this doctrine are met: see C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 131.\n\nMoreover, legitimate expectations is only one of the factors to be considered in determining what procedural fairness requires in a given context: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paras. 22-28. In the case at bar, there is no suggestion that Honey Fashions was not given a fair procedure, including notice and an opportunity to provide additional substantiation for its claims. I find, therefore, that the Federal Court erred in concluding that the decision by the CBSA not to grant the name change requests was made in breach of its duty of fairness.", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-466027-24", - "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 52", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", - "part": "Federal Court of Appeal", - "division": "", - "text": "For all of the above reasons, I would dismiss the appeal, maintain the judgment of the Federal Court, and return the remission claims of Honey Fashions to the CBSA for redetermination in accordance with these reasons, the whole with costs in this Court and in the Court below. I would amend the style of cause and remove the President of the Canada Border Services Agency as an appellant. The style of cause on these Reasons and on the Judgment should reflect this amendment. “Yves de Montigny” J.A. “I agree Richard Boivin J.A.” “I agree Mary J.L. Gleason J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2020-03-19", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" - }, - { - "id": "fca-419470-1", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 1–3", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Hociung appeals from the judgment of the Federal Court (per Gleeson J.) granting the respondent’s motion for summary judgment and dismissing his action (2018 FC 298).\n\nIn a companion appeal in file A-101-18, Mr. Hociung appeals the order of the Federal Court (per Gleeson J.) dismissing his motion for leave to amend the statement of claim. Although two notices of appeal were filed, these two decisions are linked and the findings in respect of the motion for summary judgment may have an impact on the merits of the proposed amendments.\n\nThe Canada Border Services Agency (the CBSA) seized four $50 USD Buffalo Bullion coins and twenty $1 USD Silver Eagle coins when Mr. Hociung failed to declare these precious metal coins as “goods” upon his entry into Canada from the United States allegedly in contravention of section 12 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (the Customs Act).", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-2", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 4", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Hociung purchased the coins in the United States at a cost of $5,700 USD, although their denomination or face value is $220 USD. Mr. Hociung had been traveling to the United States for the day only (same day traveler); he was not questioned about the amount of “cash” or “currency” in his possession by the CBSA officer and the seizure did not relate to a failure to declare the coins under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, S.C. c. 17 (the Proceeds of Crime Act) or the Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 (the Reporting Regulations). The coins were discovered after Mr. Hociung was asked to present himself to the CBSA’s office for inspection after he declared having bought two new tires for his car in the United States (declared value $500). There is no indication in the record that he was asked to pay any duties or taxes on the tires.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-3", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 5–6", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Hociung contested the seizure and requested a decision from the Minister of Public Safety and Emergency Preparedness (the Minister) on the issue of whether the Customs Act had been contravened. Pursuant to section 131 of the Customs Act, the Minister’s delegate found that there had indeed been a contravention of section 12 of the Customs Act, but as he was entitled to do pursuant to section 133 of the Customs Act, he reduced the penalty for the release of the seized coins from $1,606.97 to $321.39 (section 133 of the Customs Act). He dismissed Mr. Hociung’s argument that the coins were “currency” as opposed to “goods” and therefore he did not need to declare them under the Customs Act. It is in this context that Mr. Hociung contested the CBSA’s interpretation of the word “currency” in the Proceeds of Crime Act that contributed in his view to a misapplication of the Customs Act and the Proceeds of Crime Act, as well as the relevant regulations adopted under the latter statute.\n\nThe denomination value of the coins ($220 USD) if used as legal tender in the United States was less than $10,000 CAD. Even if held to be currency within the meaning of the Proceeds of Crime Act, Mr. Hociung was not required to declare the coins under that statute as their value was below the limit set out in the Reporting Regulations. There is no dispute about this.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-4", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 7–8", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister’s delegate issued his decision on May 28, 2015. On August 28, 2015, Mr. Hociung filed his action before the Federal Court. Although his action includes an appeal pursuant to section 135 of the Customs Act, it does include other claims and seeks additional relief, including damages based on alleged torts committed during the interaction between CBSA employees and Mr. Hociung, such as threats of violence and fraudulent misrepresentations.\n\nIn his statement of claim, Mr. Hociung, a self-represented litigant, describes the seizure and the alleged misinterpretation of the Customs Act, the Proceeds of Crime Act and the Currency Act, R.S.C., 1985, c. C-52 (the Currency Act) by the CBSA as fraudulent and designed to (i) aid crime and terrorism in Canada, and (ii) make illegal profits from the taxation of “currency” as “goods”. He alleges that various employees involved in the seizure and his contestation of it are guilty of criminal conduct. Among the other relief sought are damages and various declarations, such as a declaration that Canadian and foreign precious metal coins fall within certain provisions of the Proceeds of Crime Act as opposed to the Customs Act. Mr. Hociung also seeks an order directing the Prime Minister to create an oversight body to ensure the lawful implementation of the Proceeds of Crime Act, as well as an order directing the refund of all taxes, duties, and any fines obtained by the CBSA in relation to shipments of gold and silver coins, foreign and domestic, since the Proceeds of Crime Act was enacted.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-5", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 9", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "In his motion to amend his statement of claim (the subject of the appeal in file A-101-18), Mr. Hociung seeks to add two defendants, including Her Majesty the Queen (vicarious liability), as well as claims against other employees of the CBSA involved in the process leading to the Minister’s final decision (see e.g., paragraphs 3(a)(4), 3(a)(4)(g), 5 and 6 of the proposed amended statement of claim). He also wishes to include various factual details, particularly with respect to the so-called “money laundering scheme run by the CBSA” (such as paragraphs 9, 10 and 11 of the proposed amended statement of claim), references to internal bulletins, and previous instances involving the alleged “misapplication” of the Proceeds of Crime Act and other statutes by the CBSA, of which he became aware after filing his action. Mr. Hociung also sought to amend his statement of claim to refer to section 469 of the Criminal Code, R.S.C. 1985, c. C-46, which grants the power to every court of criminal jurisdiction to deal with certain types of offences, and to include additional relief such as an order directing the Minister of Public Safety to dismantle the present CBSA and to implement a new Agency that conforms to the requirements of the Canada Border Services Agency Act.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-6", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 10–11", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "In August 2016, after filing a brief statement of defence, the respondent filed a motion in writing seeking an order striking out the statement of claim in its entirety without leave to amend. In her order dismissing the said motion, Prothonotary Milczynski made it clear that the respondent had not relied on an alternative approach of challenging each type of claim and relief sought so that at least some portions of the statement of claim could be struck. Having found that it was not clear that the appeal pursuant to section 135 of the Customs Act was without merit and that Mr. Hociung had to institute a separate action for his other causes of action, the Prothonotary dismissed the motion. That said, she expressly noted that the respondent would not be prevented from seeking an order striking out portions of the statement of claim at a later stage, once Mr. Hociung filed the motion to amend he alluded to in his representations before her.\n\nOn February 20, 2017, Mr. Hociung filed a motion in writing to amend his statement of claim. On March 1, 2017, the respondent filed the motion for summary judgment that resulted in the decision under appeal in this file. Despite the Prothonotary’s comments, once again, rather than relying on arguments targeted at each type of claim and relief sought, the respondent asked for the dismissal of the entire action, even in its amended form based on what the respondent considered the only genuine issues. These consisted of two questions of law: (i) whether, in an action brought under section 135 of the Customs Act, a plaintiff may claim damages or seek mandamus, and (ii) whether collector coins are “currency” or “goods” for the purpose of the Customs Act.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-7", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 12–14", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is not disputed that in an appeal pursuant to section 135 of the Customs Act, a plaintiff cannot contest decisions such as the imposition of a penalty made under other provisions of the Customs Act, for generally such decisions must be contested by an application for judicial review to be filed within 30 days of the decision, rather than an ordinary action filed within the 90 days from the notification of the ministerial decision (see for example Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724; Starway v. Canada (Public Safety and Emergency Preparedness), 2010 FC 1208) and very recently Chen v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 170 at para. 9).\n\nRelying on the jurisprudence referred to in the Federal Court’s reasons (the Reasons) at paragraphs 27 to 29, the respondent sought to exclude any other claims or relief from the statement of claim on the basis that these were also outside the scope of section 135. Presumably, rather than dealing with the numerous legal issues arising from the nature of those allegations including jurisdiction and standing, this offered an easier way to dispose of the numerous claims and relief sought by Mr. Hociung.\n\nObviously, unless the respondent succeeded on the first question of law, the answer as to the second question of whether Mr. Hociung’s collector coins were “goods” or “currency” could not warrant the dismissal of the statement of claim in its entirety (see Reasons at paras. 16 to 20). Indeed, as acknowledged by the respondent’s counsel at the hearing before us, unless a joinder of causes of action is precluded, the answer to the second question clearly could not justify the dismissal of the claim for damages based on threats of violence by a CBSA officer.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-8", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 15–17", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "I ought to note that there are obvious difficulties arising when a party is self-represented and may lack legal knowledge and some or all of his claims may be without merit. Despite this reality, defendant’s counsel has the duty to put before the court a motion including all of the appropriate grounds and authorities that will enable the Court to efficiently strike out or dismiss a claim on the basis that it has no merit. Efficiency and proportionality do not justify undue legal shortcuts.\n\nThe Federal Court dismissed the action after reformulating the first question as follows: “Is an action commenced pursuant to section 135 of the Customs Act limited to a determination of whether there has been a contravention of the Customs Act?” It found that anything other than whether or not Mr. Hociung had contravened section 12 of the Customs Act was beyond the scope of a section 135 action and must be pursued in other proceedings (Reasons at paras. 25 to 32). Except for a brief mention at paragraph 26 of the Reasons that it had not been persuaded by Mr. Hociung that section 135 allows for a joinder of various causes of action, the Federal Court did not explain why it excluded the application of Rules 101and 106 of the Federal Courts Rules, S.O.R./98-106 (the Rules), from the ambit of subsection 135(2) of the Customs Act (See paragraph 21 below).\n\nIn respect of the second question, it held that the collector coins at issue are “goods” within the meaning of section 12 of the Customs Act and had to be declared. Thus, Mr. Hociung had contravened the Customs Act and his collector coins could be seized on that basis.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-9", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 18–20", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Furthermore, the Federal Court found that even if in its view these type of coins may also have to be declared when their denomination value was over the limit of $10,000 CAD or its equivalent in foreign currency (section 12 of the Proceeds of Crime Act and section 2 of the Reporting Regulations), the fact that these coins are also “goods” under the Customs Act does not create a true conflict between the relevant legislative provisions (Reasons at paras. 68 to 72).\n\nImportantly, the Federal Court also noted that the question of whether duties were payable on these “goods” was not the issue in the action, as the obligation to declare under section 12 of the Customs Act was not limited to “goods” on which duties are actually payable (Reasons at paras. 63 to 66).\n\nThis appeal raises the following main issues: Did the Federal Court make a reviewable error in answering the two questions raised in the respondent’s motion? Is there a reasonable apprehension of bias as alleged by Mr. Hociung?", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-10", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 21–22", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Subsection 12(1) and section 135 of the Customs Act read as follows: 12 (1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. 12 (1) Sous réserve des autres dispositions du présent article, ainsi que des circonstances et des conditions réglementaires, toutes les marchandises importées doivent être déclarées au bureau de douane le plus proche, doté des attributions prévues à cet effet, qui soit ouvert. 135 (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant. 135 (1) Toute personne qui a demandé que soit rendue une décision en vertu de l’article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d’action devant la Cour fédérale, à titre de demandeur, le ministre étant le défendeur. Ordinary action Action ordinaire (2) The Federal Courts Act and the rules made under that Act applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), sous réserve des adaptations occasionnées par les règles particulières à ces actions.\n\nRules 101 and 106 as well as some of the other relevant provisions referred to herein are reproduced in Annex 1.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-11", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 23", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is well established that on a motion for summary judgment, the standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, apply (Hryniak v. Mauldin, 2014 SCC 7 at paras. 81 and 84). Thus, the standard of correctness applies to questions of law, while questions of fact and of mixed fact and law are reviewed on the standard of palpable and overriding error.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-12", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 24", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "As mentioned earlier, Mr. Hociung’s main argument is that Rule 101(1) allows him to request relief in his action in respect of more than one claim. Pursuant to Rule 101(3), not all parties to the action need have an interest in all relief claimed in the said proceeding. Mr. Hociung submits that if Parliament intended to exclude the application of this Rule to actions instituted pursuant to section 135 of the Customs Act, it would have used explicit language similar to the one used in subsection 81.28(3) of the Excise Tax Act, R.S.C., 1985, c. E-15 (the Excise Tax Act), which deals with actions brought under that section. The relevant portion of the provision reads as follows: (3) An appeal to the Federal Court under this Part is deemed to be an action in the Federal Court to which the Federal Courts Act and the rules made under that Act applicable to an ordinary action apply, except as varied by special rules made in respect of such appeals and except that (3) Un appel à la Cour fédérale en vertu de la présente partie est réputé être une action devant celle-ci à laquelle la Loi sur les Cours fédérales et les règles établies conformément à cette loi s’appliquent comme pour une action ordinaire, sauf dans la mesure où l’appel est modifié par des règles spéciales établies à l’égard de tels appels, sauf que : (a) the rules concerning joinder of parties and causes of action do not apply except to permit the joinder of appeals under this Part; a) les règles concernant la jonction d’instances et de causes d’action ne s’appliquent pas, sauf pour permettre la jonction d’appels en application de la présente partie; […] […]", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-13", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 25–27", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Subsection 135(2) of the Customs Act clearly indicates that the Rules apply to an action instituted under subsection 135(1), except as varied by special rules made in respect of such actions. The Customs Act does contain some specific provisions such as its subsection 106(3), which deals with stays of actions and other proceedings that could be viewed as special rules within the meaning of subsection 135(2). However, the respondent did not direct us to any provisions of the Customs Act setting a special rule that could preclude the application of Rules 101 and 106. I have not found any.\n\nThe case law holding that in an action pursuant to section 135, a party cannot seek judicial review of decisions other than whether there has been a contravention to the Customs Act is of no help here. None of the decisions relied upon by the Federal Court and the respondent deal with the issue before us or rely on reasoning that could be relevant to the interpretation of the current issue.\n\nThe Rules are very liberal in their treatment of joinders of parties and causes of action. However, this right is subject to the overriding discretion and power of the Court to sever claims as provided by Rule 106. Before severing claims pursuant to that provision, the Court must carefully weigh the prejudice to the plaintiff, if any. Severing claims pursuant to Rule 106 is not the same as dismissing an action for summary judgment. It is a procedural order that is usually followed by appropriate directions detailing how to sever the claims. Certainly, it should be done in a manner that would not preclude a party from pursuing an otherwise valid claim because it would now be time-barred.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-14", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 28–31", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "In the same manner that the respondent’s motion, which refers to Rule 221 as opposed to Rule 215, was considered a proper motion for summary judgment by the Federal Court, despite this error, Mr. Hociung’s action must be considered for what it is – an action where he has included more than one cause of action and where he seeks more than an appeal of the Minister’s decision under section 135 of the Customs Act.\n\nBecause the Federal Court erred in its conclusion in respect of this first question, it could not simply dismiss the action in its entirety on the sole basis that there had been a contravention to the Customs Act without examining if and how all the causes of action and relief sought were affected by such determination.\n\nI will comment further on what order could be granted on this motion and in this appeal in section V of these reasons after reviewing whether the Federal Court erred in concluding that the coins at issue were “goods” that had to be declared under subsection 12(1) of the Customs Act.\n\nBefore us, Mr. Hociung argues that as the purpose of the Customs Act is to collect custom duties, the obligations set out in section 12 of the Customs Act can only apply to goods on which duties are payable. Even if his coins were “goods”, a conclusion that he also contests, because they were either exempted from taxes or subject to a zero custom duty rate, there was no obligation to report them. I will deal with this argument first. If I find that the obligation to report applies regardless of whether duties are payable, I will review whether as argued by Mr. Hociung, his coins fall outside of the ambit of “goods” as this word is used in section 12.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-15", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 32–34", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Having considered the wording of section 12 in its context, harmoniously with the purpose and object of the scheme of the Customs Act and of this particular provision, I agree with the Federal Court that the obligation to declare is distinct from the obligation to pay duties which is dealt with under the title “Duties” starting at section 17 of the Customs Act. The obligation to report is not limited to goods that attract the payment of duties or other taxes.\n\nThere is nothing in the ordinary meaning of the wording of subsection 12(1) that would justify such a limitation.\n\nWhen one considers the wording of subsection 12(1) in the context of section 12 as a whole, subsection 12(7) becomes relevant. It provides that subject to three cumulative conditions, goods described in tariff item 9813.00.00 or 9814.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, S.C. 1997, c. 36 may not be seized as forfeit by reason only that they were not reported under subsection 12(1). It is telling that “goods” that fall within the description of the aforementioned tariff items will only be exempted from such seizure if “their importation is not prohibited under the Customs Tariff or prohibited, controlled or regulated under any act of Parliament, other than this act or the Customs Tariff.” This is so, even if those goods are not charged with duties (see text of this provision in Annex 1).", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-16", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 35–39", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Moreover, I cannot agree that the interpretation suggested by Mr. Hociung is mandated by the main purpose of the Customs Act. The officers of the CBSA are the persons charged with determining whether or not duties are payable and whether or not goods can be imported into Canada without any restrictions under other statutes. They cannot fulfill their statutory responsibilities unless goods are reported to them. To claim the benefit on an exemption or a zero rate of duty, one must first report the goods.\n\nSection 13 of the Customs Act also creates another obligation quite distinct from the payment of duties. It is an obligation to answer questions about the goods imported and to present those goods for inspection to an officer of CBSA when required to do so. This obligation arises whether or not duties or other taxes are due.\n\nThen, the Customs Act provides at section 18 who is liable to pay the duties as defined in section 2(1) of the Customs Act (see also The Excise Tax Act, section 212 which refers to persons liable under the Customs Act to pay duties on imported goods confirming that such an obligation arises from the provisions of the Customs Act itself).\n\nThere is no ambiguity, an exemption from the payment of taxes under the Excise Tax Act, or a zero custom duty rate in the Customs Tariff is not an exemption to report under subsection 12(1) of the Customs Act.\n\nIt appears from the case synopsis (Appeal Book, Volume 4 at page 655 and 658) that in the CBSA’s view, subsection 12(7) of the Customs Act did not apply to Mr. Hociung’s coins, which were imported for the first time into Canada. Mr. Hociung did not contest this particular finding. From my review of the description of the tariff items referred to in that provision, it is evident that he indeed had no basis to do so.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-17", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 40–43", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Having determined that the obligation to report or declare all goods imported in Canada is not limited to “goods” which are subject to the payment of duties or other taxes, it is clear from the wording of the motion for summary judgment and the respondent’s written representations that the only other question that had to be determined is whether the actual coins seized were “goods” within the meaning of section 12 of the Customs Act.\n\nThere is no need, and it would be unwise for this Court to attempt to give an exhaustive definition of the word “goods”, considering the Customs Act does not contain such an exhaustive definition. Indeed at section 2, it simply states: goods, for greater certainty, includes conveyances, animals and any document in any form; (marchandises) marchandises Leur sont assimilés, selon le contexte, les moyens de transport et les animaux, ainsi que tout document, quel que soit son support. (goods)\n\nThe word “goods” is intended to be used in the broadest sense possible considering that in its ordinary meaning; it would not usually be understood to include “any document in any form”.\n\nNeither party relied on any case law dealing with the ambit of section 12 of the Customs Act or on the legislative evolution of that section. However, Mr. Hociung and the respondent have referred to several statutes, including the Customs Tariff, the Excise Tax Act, the Proceeds of Crime Act, the Currency Act, the Royal Mint Act, R.S.C., 1985, c. R-9 and related regulations. Although I have considered them, I need not refer to all of them for I find that the Customs Tariff provides the most useful indication of the legislator’s intention as to whether coins that have legal tender such as those under consideration are included in the word “goods”.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-18", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 44–45", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Pursuant to section 4 of the Customs Tariff: Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe.\n\nNothing in the Customs Tariff provides otherwise in respect of the word “goods”. It is quite clear when one reads, for example, the definition of “Tariff Item” which basically is a description of “goods”, and section 10 of the Customs Tariff (See Annex 1) which deals with the classification of “goods” in the List of Tariff Provisions, that generally something listed under a Tariff item is within the ambit of the word “goods” in the Customs Act, particularly as used in section 12.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-19", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 46", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "As explained in Canada (Attorney General) v. Igloo Vikski Inc., 2016 2 S.C.R. 80 (Igloo Vikski), the Customs Tariff “implements Canada’s obligation as a party to the International Convention Governing the Harmonized Commodity Description and Coding System…The Convention governs the Harmonized Commodity Description and Coding System (The “Harmonized System”) by which approximately 5,000 commodity groups of imported goods are classified” (Igloo Vikski at para. 3) (my emphasis). This system was developed to foster predictability and stability in classification practices internationally. “The Harmonized System uses an eight-digit classification system for tariff classifications, which is incorporated into the Schedule to the Customs Tariff” (Igloo Vikski at para. 5). Rather than using the example (Live Animals; Animal Products) used in Igloo Vikski, I will refer to some classification items related to what one would ordinarily consider “money” or “currency” such as issued banknotes that are legal tender (Tariff item No. 4907.00.00.12, see Annex 1), coins (Tariff item No. 71.18) including gold coins that are legal tender (Tariff item No. 7118.90.00.10 – see Annex 1), and silver or other metal coins (Tariff item No. 7118.90.00.99). There are other relevant Tariff items, but my point here is that the words “money” and “currency” are not used in the Customs Tariff or in the Customs Act except when a sum of money needs to be paid or value is considered (see for example sections 55, 132 and 133 of the Customs Act). Indeed the Harmonized System is a much more precise classification for imported goods. It is therefore not particularly useful to look at various statutory definitions of “money” or “currency” to construe section 12 of the Customs Act.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-20", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 46–49", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is also unnecessary to examine whether coins could be “financial instruments” under the Excise Tax Act.\n\nHowever, in light of Mr. Hociung’s argument that it would be contradictory to include anything falling within the definition of “currency” under the Proceeds of Crime Act in the definition of “goods” under the Customs Act, I must agree with the Federal Court that the interpretation of the Proceeds of Crime Act it adopted, even if it was not required in my view to do so to answer the question raised in the motion before it, does not result in a conflict between the Proceeds of Crime Act and the Customs Act. Those two statutes can both be applied without contradiction or conflict. The fact that under the Proceeds of Crime Act the obligation to report is more limited – it only applies to currency and monetary instruments over the limit set out in the Reporting Regulations, cannot justify restricting the proper interpretation of section 12 of the Customs Act which Parliament clearly did not see fit to amend when it adopted the Proceeds of Crime Act in 2000.\n\nI therefore conclude that the Federal Court did not err in law when it concluded that the coins were “goods” subject to the obligation to declare provided for in section 12 of the Customs Act.\n\nAs mentioned, to determine this appeal, it is not necessary for this Court to deal with the issue of whether or not the subject coins could fall within the definition of “currency” of the Proceeds of Crime Act in other cases. That said, I note that the respondent did not challenge the findings of the Federal Court in that respect, particularly those found at paragraphs 35 and 53 of the reasons.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-21", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 50–53", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Hociung alleges that the Federal Court judge was biased against him. He points specifically to paragraph 16 of the Reasons where the Federal Court states “the plaintiff does not dispute that the issues identified by the defendant are genuine issues. However, the plaintiff submits that there are additional issues raised in the statement of claim to be addressed in the course of the action. I disagree.”\n\nMr. Hociung also indicates that bias can be inferred from the fact that the Federal Court relied on “evidence” that was not relied upon by the parties in paragraphs 58 and 60 of the Reasons. At paragraph 58 of the Reasons, the Federal Court refers to the definition of “goods” at subsection 2(1) of the Customs Act and at paragraph 60 to section 123 of the Excise Tax Act where the word “money” is defined.\n\nThe applicable standard here is a reasonable apprehension of bias (Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at page 394). The apprehension must be a reasonable one and the test is: what would an informed person, viewing the matter realistically and practically – in having thought the matter through – conclude. This is a difficult test to meet. There is a strong presumption that judges are performing their duties in an unbiased way, and cogent evidence must be adduced to support such a serious allegation.\n\nI have no hesitation in concluding that Mr. Hociung’s allegation is baseless. Unfortunately, as is often the case with self-represented litigants, it appears to be the result of a misunderstanding of the law and the task to be performed by a court when required to construe legislation before it.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-22", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 54–56", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "The fact that the Federal Court may have reached the wrong conclusion at paragraph 16 is in no way evidence of a bias, real or apprehended. Otherwise all decisions reversed in appeal or quashed on an application for judicial review based on an error of law or any other reviewable error would raise such an apprehension. This is simply not so.\n\nStatutory provisions, including definitions in statutes put in play by the issues before a court, are not “evidence”. When asked to construe a statute, a court may refer to the provisions that are clearly relevant as they are part of the context it must consider to reach its decision. I also note that there would have been no benefit to seek the parties’ views on those legislative provisions which they allegedly fail to expressly refer to, for they are quite unambiguous, and were clearly relevant to the issues raised by them.\n\nIn fact, when one considers the decision as a whole, especially the fact that the Federal Court dealt with the issue of whether collector coins could be included in the definition of “currency” under the Proceeds of Crime Act, it becomes clear that the Federal Court did not do what an allegedly bias decision maker would be expected to do. It did not accept the interpretation proposed by the respondent. It clearly endeavoured to answer Mr. Hociung’s preoccupation with the CBSA’s restrictive interpretation. Although Mr. Hociung may not agree with the interpretation of the Federal Court, the fact remains that he got more in that respect than he might otherwise have been entitled to on this motion.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-23", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 57–58", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Having correctly concluded that there was a contravention to section 12 of the Customs Act, the Federal Court had the power, pursuant to Rule 215(3), to dismiss all the allegations relating to the appeal pursuant to section 135 of the Customs Act as it involves no other genuine issue. Its legal conclusion in respect of section 12 could also be sufficient to justify dismissing the claims for damages based on the allegations that the seizure constituted a fraud and a misapplication of the Customs Act in this case. On the other hand, as mentioned, it could not dismiss the claim based on alleged threats of violence.\n\nAlthough Mr. Hociung has attempted to summarize his various claims at paragraph 14 and again on page 15 of his memorandum of fact and law, I do not consider that this Court had the benefit of sufficient representations by the parties to render the decision that the Federal Court should have rendered had it properly exercised its power under section 215(3) of the Rules. Obviously, this Court cannot simply dismiss the motion for summary judgment, given its conclusion that there was a contravention to section 12 of the Customs Act. Thus, there is little choice but to return the matter to the Federal Court, who will be in a better position to deal with this issue after seeking additional written representations by the parties as this motion was made in writing pursuant to Rule 369.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-24", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 59–62", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "That said, before concluding, I ought to add some comments for the benefit of Mr. Hociung. Now that it is clear that his appeal pursuant to section 135 of the Customs Act and his claims based on fraud and misrepresentations as to the right of the CBSA to seize his coins do not raise any genuine issue for trial, I urge him to seek legal advice so that he may seriously reassess whether he wishes to pursue whatever claims or allegations may remain in his statement of claim.\n\nThe fact that this appeal may be granted in part should not be construed in any manner as meaning that whatever claims or relief ultimately remaining have any chance of success. Clearly at this stage, this Court is not in a position to make such a finding, especially not having heard arguments from either side on the numerous legal issues raised by the melting pot of claims that may remain.\n\nMr. Hociung is a well-educated and intelligent man who clearly devoted much effort to researching the law. However, the fact remains that the issues raised in his action are highly technical and complex.\n\nFor example, he may not appreciate that the Federal Court does not have any inherent criminal jurisdiction to deal with offences under s. 469 of the Criminal Code or to impose penalties under the said Code. Also, in S.A. Metro Vancouver Housing Corp., 2019 SCC 4, the Supreme Court of Canada recently reiterated at paragraph 60 that: [d]eclaratory relief is granted by the courts on a discretionary basis, and may be appropriate where (a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought […].", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-25", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 63–64", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is certainly not clear to me at this stage, given that the only basis on which Mr. Hociung’s coins were seized was a contravention to the Customs Act, that there is any real, as opposed to a theoretical dispute left, and that Mr. Hociung has a genuine interest (in the legal sense) in its resolution. This is why, among other things, legal advice at this stage would be most appropriate. It would also ensure that Mr. Hociung does not unduly expose himself to the payment of court costs should his remaining claims ultimately fail.\n\nThe appeal should be granted in part; the judgment of the Federal Court dismissing the action in its entirety should be quashed. The matter should be returned to the Federal Court for determination of which claims and relief can properly be dismissed on the basis of the Federal Court’s finding that Mr. Hociung has contravened section 12 of the Customs Act and the CBSA was legally entitled to seize his coins under the Customs Act. Obviously, this should not be construed as limiting any other order the Federal Court may choose to issue under Rule 215(3).", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-26", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Given that success was divided on the issues raised in this appeal, I propose that each party pay their own costs. “Johanne Gauthier” J.A. “I agree Wyman W.Webb J.A.” “I agree Marianne Rivoalen J.A.” Annex 1 Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) Interpretation Définitions et champ d’application Definitions Définitions 2(1) In this Act, 2(1) Les définitions qui suivent s’appliquent à la présente loi. […] […] duties means any duties or taxes levied or imposed on imported goods under the Customs Tariff, the Excise Act, 2001, the Excise Tax Act, the Special Import Measures Act or any other Act of Parliament, but, for the purposes of subsection 3(1), paragraphs 59(3)(b) and 65(1)(b), sections 69 and 73 and subsections 74(1), 75(2) and 76(1), does not include taxes imposed under Part IX of the Excise Tax Act; (droits) droits Les droits ou taxes imposés, en vertu de la Loi de 2001 sur l’accise, de la Loi sur la taxe d’accise, de la Loi sur les mesures spéciales d’importation, du Tarif des douanes ou de toute autre loi fédérale, sur les marchandises importées. En sont exclues, pour l’application du paragraphe 3(1), des alinéas 59(3)b) et 65(1)b), des articles 69 et 73 et des paragraphes 74(1), 75(2) et 76(1), les taxes imposées en vertu de la partie IX de la Loi sur la taxe d’accise. (duties) […] […] Report of Goods Déclaration Report Déclaration Certain goods not subject to seizure Marchandises soustraites à la saisie-confiscation 12(7) Goods described in tariff item No.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-27", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "9813.00.00 or 9814.00.00 in the List of Tariff Provisions set out in the schedule to the Customs Tariff 12(7) Ne peuvent être saisies à titre de confiscation en vertu de la présente loi, pour la seule raison qu’elles n’ont pas fait l’objet de la déclaration prévue au présent article, les marchandises, visées aux nos tarifaires 9813.00.00 ou 9814.00.00 de la liste des dispositions tarifaires de l’annexe du Tarif des douanes, pour lesquelles les conditions suivantes sont réunies : (a) that are in the actual possession of a person arriving in Canada, or that form part of his baggage, where the person and his baggage are being carried on board the same conveyance, a) elles sont en la possession effective ou parmi les bagages d’une personne se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada; (b) that are not charged with duties, and b) elles ne sont pas passibles de droits; (c) the importation of which is not prohibited under the Customs Tariff or prohibited, controlled or regulated under any Act of Parliament other than this Act or the Customs Tariff may not be seized as forfeit under this Act by reason only that they were not reported under this section. c) leur importation n’est pas prohibée par le Tarif des douanes, ni prohibée, contrôlée ou réglementée sous le régime d’une loi fédérale autre que la présente loi ou le Tarif des douanes.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-28", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "[…] […] Obligation to answer questions and present goods Obligations du déclarant 13 Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall 13 La personne qui déclare, dans le cadre de l’article 12, des marchandises à l’intérieur ou à l’extérieur du Canada, ou qu’un agent intercepte en vertu de l’article 99.1 doit : (a) answer truthfully any question asked by an officer with respect to the goods; and a) répondre véridiquement aux questions que lui pose l’agent sur les marchandises; (b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine. b) à la demande de l’agent, lui présenter les marchandises et les déballer, ainsi que décharger les moyens de transport et en ouvrir les parties, ouvrir ou défaire les colis et autres contenants que l’agent veut examiner. […] […] Presumption of importation Présomption d’importation 18 (1) For the purposes of this section, all goods reported under section 12 shall be deemed to have been imported. 18 (1) Pour l’application du présent article, toutes les marchandises déclarées conformément à l’article 12 sont réputées avoir été importées.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-29", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Liability of person reporting goods short landed Solidarité du déclarant et de son mandant (2) Subject to subsections (3) and 20(2.1), any person who reports goods under section 12, and any person for whom that person acts as agent or employee while so reporting, are jointly and severally or solidarily liable for all duties levied on the goods unless one or the other of them proves, within the time that may be prescribed, that the duties have been paid or that the goods (2) En cas d’application de l’article 12, le déclarant et son mandant ou employeur sont, sous réserve des paragraphes (3) et 20(2.1), solidairement responsables de tous les droits imposés sur les marchandises, sauf si, dans le délai réglementaire, l’un d’eux établit le paiement des droits ou, à propos des marchandises, l’un des faits suivants : (a) were destroyed or lost prior to report or destroyed after report but prior to receipt in a place referred to in paragraph (c) or by a person referred to in paragraph (d); a) elles ont été soit détruites ou perdues avant la déclaration, soit détruites entre le moment de la déclaration et leur réception en un lieu visé à l’alinéa c) ou par la personne visée à l’alinéa d); (b) did not leave the place outside Canada from which they were to have been exported; b) elles n’ont pas quitté le lieu de l’extérieur du Canada d’où elles devaient être exportées; (c) have been received in a customs office, sufferance warehouse, bonded warehouse or duty free shop; c) elles ont été reçues dans un bureau de douane, un entrepôt d’attente, un entrepôt de stockage ou une boutique hors taxes; (d) have been received by a person who transports or causes to be transported within Canada goods in accordance with subsection 20(1); d) elles ont été reçues par une personne qui fait", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-30", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "office de transitaire conformément au paragraphe 20(1); (e) have been exported; or e) elles ont été exportées; (f) have been released. f) elles ont été dédouanées. Rates of duties Taux des droits (3) The rates of duties payable on goods under subsection (2) shall be the rates applicable to the goods at the time they were reported under section 12. (3) Le taux des droits payables sur les marchandises conformément au paragraphe (2) est celui qui leur est applicable au moment où elles font l’objet de la déclaration prévue à l’article 12. Regulations Règlements (4) The Governor in Council may make regulations prescribing the circumstances in which such bonds or other security as may be prescribed may be required from any person who is or may become liable for the payment of duties under this section. (4) Le gouverneur en conseil peut, par règlement, fixer les cautions ou autres garanties susceptibles d’être souscrites par les personnes effectivement ou éventuellement redevables de droits au titre du présent article et déterminer les circonstances de la souscription. Federal Courts Rules, S.O.R./98-106 Joinder of claims Causes d’action multiples 101 (1) Subject to rule 302, a party to a proceeding may request relief against another party to the same proceeding in respect of more than one claim. 101 (1) Sous réserve de la règle 302, une partie à une instance peut faire une demande de réparation contre une autre partie à l’instance à l’égard de deux ou plusieurs causes d’action. Separate capacity Réparation à titre distinct (2) A party may request relief in a separate capacity in respect of different claims in a single proceeding. (2) Une partie peut demander réparation à titre distinct pour diverses causes d’action faisant l’objet d’une instance.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-31", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Interest in all relief not essential Réparation ne visant pas toutes les parties (3) Not all parties to a proceeding need have an interest in all relief claimed in the proceeding. (3) Il n’est pas nécessaire que chacune des parties à l’instance soit visée par toutes les réparations demandées dans le cadre de celle-ci. […] […] Separate determination of claims and issues Instruction distincte des causes d’action 106 Where the hearing of two or more claims or parties in a single proceeding would cause undue complication or delay or would prejudice a party, the Court may order that 106 Lorsque l’audition de deux ou plusieurs causes d’action ou parties dans une même instance compliquerait indûment ou retarderait le déroulement de celle-ci ou porterait préjudice à une partie, la Cour peut ordonner : (a) claims against one or more parties be pursued separately; a) que les causes d’action contre une ou plusieurs parties soient poursuivies en tant qu’instances distinctes; (b) one or more claims be pursued separately; b) qu’une ou plusieurs causes d’action soient poursuivies en tant qu’instances distinctes; (c) a party be compensated for, or relieved from, attending any part of the proceeding in which the party does not have an interest; or c) qu’une indemnité soit versée à la partie qui doit assister à toute étape de l’instance dans laquelle elle n’a aucun intérêt, ou que la partie soit dispensée d’y assister; (d) the proceeding against a party be stayed on condition that the party is bound by any findings against another party. d) qu’il soit sursis à l’instance engagée contre une partie à la condition que celle-ci soit liée par les conclusions tirées contre une autre partie. Customs Tariff, S.C. 1997, c.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-32", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "36 PART 1 PARTIE 1 Interpretation and General Définitions et dispositions générales Interpretation [EN BLANC] Definitions Définitions 2 (1) The definitions in this subsection apply in this Act. 2 (1) Les définitions qui suivent s’appliquent à la présente loi. […] […] tariff item means a description of goods in the List of Tariff Provisions and the rates of customs duty and the accompanying eight-digit number in that List and, if applicable, in the “F” Staging List. (numéro tarifaire) numéro tarifaire Dénomination de marchandises, figurant sur la liste des dispositions tarifaires, marquée d’un numéro à huit chiffres et les taux figurant sur cette liste et, le cas échéant, au tableau des échelonnements. (tariff item) […] […] Words and expressions in Act Termes de la Loi sur les douanes 4 Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection. 4 Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe. … […] Classification of goods in the List of Tariff Provisions Classement des marchandises dans la liste des dispositions tarifaires 10 (1) Subject to subsection (2), the classification of imported goods under a tariff item shall, unless otherwise provided, be determined in accordance with the General Rules for the Interpretation of the Harmonized System and the Canadian Rules set out in the schedule.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-33", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "10 (1) Sous réserve du paragraphe (2), le classement des marchandises importées dans un numéro tarifaire est effectué, sauf indication contraire, en conformité avec les Règles générales pour l’interprétation du Système harmonisé et les Règles canadiennes énoncées à l’annexe. Classification of “within access commitment” goods Classement de marchandises « dans les limites de l’engagement d’accès » (2) Goods shall not be classified under a tariff item that contains the phrase “within access commitment” unless the goods are imported under the authority of a permit issued under section 8.3 of the Export and Import Permits Act and in compliance with the conditions of the permit. 2) Des marchandises ne peuvent être classées dans un numéro tarifaire comportant la mention « dans les limites de l’engagement d’accès » que dans le cas où leur importation procède d’une licence délivrée en vertu de l’article 8.3 de la Loi sur les licences d’exportation et d’importation et en respecte les conditions.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-34", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "Customs Tariff – Schedule Section X: Pulp of Wood or of Other Fibrous Cellulosic Material; Recovered (Waste and Scrap) Paper or Paperboard; Paper and Paperboard and Articles Thereof Section X : Pâtes de bois ou d'autres matières fibreuses cellulosiques; Papier ou carton à recycler (déchets et rebuts); Papier et ses applications 49 PRINTED BOOKS, NEWSPAPERS, PICTURES AND OTHER PRODUCTS OF THE PRINTING INDUSTRY; MANUSCRIPTS, TYPESCRIPTS AND PLANS 49 PRODUITS DE L'ÉDITION, DE LA PRESSE OU DES AUTRES INDUSTRIES GRAPHIQUES; TEXTES MANUSCRITS OU DACTYLOGRAPHIÉS ET PLANS 4907.00.00 Unused postage, revenue or similar stamps of current or new issue in the country in which they have, or will have, a recognized face value; stamp-impressed paper; banknotes; cheque forms; stock, share or bond certificates and similar documents of title. 4907.00.00 Timbres-poste, timbres fiscaux et analogues, non oblitérés, ayant cours ou destinés à avoir cours dans le pays dans lequel ils ont, ou auront, une valeur faciale reconnue; papier timbré; billets de banque; chèques; titres d'actions ou d'obligations et titres similaires. Banknotes being legal tender: Billets de banque, ayant cours légal : 4907.00.00.12 Issued 4907.00.00.12 Émis […] […] Section XIV Chapter 71: Natural or Cultured Pearls, Precious or Semi-precious Stones, Precious Metals, Metals Clad with Precious Metal, and Articles Thereof; Imitation Jewellery; Coin Section XIV Chapitre 71 : Perles fines ou de culture, pierres gemmes ou similaires, métaux précieux, plaqués ou doublés de métaux précieux et ouvrages en ces matières; bijouterie de fantaisie; monnaies 7118 Coin 7118 Monnaies.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-35", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "[…] […] 7118.90.00 Other 7118.90.00 Autres 7118.90.00.10 Gold coin 7118.90.00.10 Pièces de monnaie d'or 7118.90.00.91 Canadian coin 7118.90.00.91 Monnaie canadienne […] […] 7118.90.00.99 Other 7118.90.00.99 Autres Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, c. 17 Currency and monetary instruments Déclaration 12 (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. 12 (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l’agent, conformément aux règlements, l’importation ou l’exportation des espèces ou effets d’une valeur égale ou supérieure au montant réglementaire. Limitation Exception (2) A person or entity is not required to make a report under subsection (1) in respect of an activity if the prescribed conditions are met in respect of the person, entity or activity, and if the person or entity satisfies an officer that those conditions have been met. (2) Une personne ou une entité n’est pas tenue de faire une déclaration en vertu du paragraphe (1) à l’égard d’une importation ou d’une exportation si les conditions réglementaires sont réunies à l’égard de la personne, de l’entité, de l’importation ou de l’exportation et si la personne ou l’entité convainc un agent de ce fait. Sending reports to Centre Transmission au Centre (5) The Canada Border Services Agency shall send the reports they receive under subsection (1) to the Centre.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-36", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "It shall also create an electronic version of the information contained in each report, in the format specified by the Centre, and send it to the Centre by the electronic means specified by the Centre. (5) L’Agence des services frontaliers du Canada fait parvenir au Centre les déclarations recueillies en application du paragraphe (1) et établit, dans la forme prévue par le Centre, une version électronique des renseignements contenus dans chaque déclaration qu’elle transmet au Centre par les moyens électroniques prévus par celui-ci. Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 Minimum Value of Currency or Monetary Instruments Valeur minimale des espèces ou effets 2 (1) For the purposes of reporting the importation or exportation of currency or monetary instruments of a certain value under subsection 12(1) of the Act, the prescribed amount is $10,000. 2 (1) Pour l’application du paragraphe 12(1) de la Loi, les espèces ou effets dont l’importation ou l’exportation doit être déclarée doivent avoir une valeur égale ou supérieure à 10 000 $.", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-419470-37", - "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", - "part": "Federal Court of Appeal", - "division": "", - "text": "(2) The prescribed amount is in Canadian dollars or its equivalent in a foreign currency, based on (2) La valeur de 10 000 $ est exprimée en dollars canadiens ou en son équivalent en devises selon : (a) the official conversion rate of the Bank of Canada as published in the Bank of Canada’s Daily Memorandum of Exchange Rates that is in effect at the time of importation or exportation; or a) le taux de conversion officiel de la Banque du Canada publié dans son Bulletin quotidien des taux de change en vigueur à la date de l’importation ou de l’exportation; (b) if no official conversion rate is set out in that publication for that currency, the conversion rate that the person or entity would use for that currency in the normal course of business at the time of the importation or exportation. b) dans le cas où la devise ne figure pas dans ce bulletin, le taux de conversion que le déclarant utiliserait dans le cours normal de ses activités à cette date. FEDERAL COURT OF APPEAL", - "current_to": "2019-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" - }, - { - "id": "fca-32333-1", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 1–3", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "The primary issue on this appeal is whether the Immigration Division properly found that, notwithstanding he was under the age of eighteen years at the relevant time (a minor), there were reasonable grounds to believe that the appellant, Piran Ahmadi Poshteh, was a member of a terrorist organization for purposes of determining whether he was inadmissible to Canada on security grounds under paragraph 34(1)(f) of the Immigration Refugee and Protection Act, S.C. 2001, c. 27. Paragraph 34(1)(f) provides: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for . . . (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants_: . . . f) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c). FACTS\n\nThe following facts are taken from the decision of the Immigration Division in Mr. Poshteh's admissibility hearing. They are not in dispute.\n\nMr. Poshteh is a citizen of Iran. His father had been a member of the Mujahedin-e-Khalq (MEK), an organization in respect of which there are reasonable grounds to believe engages, has engaged or will engage in terrorism. In 1999, when Mr. Poshteh was 15, his father died. Mr. Poshteh blamed the Iranian government for his father's death.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-2", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 4–6", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Poshteh wanted to join the MEK to help achieve his father's goal, which he understood was to overthrow the Iranian government. However, when he approached his father's friend, whom he believed was a member of the MEK, the friend would not allow him to join, although he did allow him to participate through the dissemination of propaganda.\n\nMr. Poshteh and a friend distributed MEK propaganda leaflets in Tehran one or two times per month. He carried on this activity from February 2000 until June 2002, when he was almost eighteen (seventeen years and eleven months). He ceased this activity when he was arrested and detained for two weeks by the police. Aside from distributing the propaganda leaflets, he had no other involvement in MEK activities.\n\nMr. Poshteh arrived in Canada on September 16, 2002, and was interviewed by an immigration officer. Pursuant to subsection 44(1) of the Act, the officer reported, among other things, that Mr. Poshteh was inadmissible to Canada under paragraph 34(1)(f) of the Act. The immigration officer's report was transmitted to the Minister of Citizenship and Immigration under subsection 44(1) of the Act. The Minister referred the report to the Immigration Division for an admissibility hearing under subsection 44(2) of the Act. Following a hearing, the Immigration Division found that there were reasonable grounds to believe that Mr. Poshteh was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism and that Mr. Poshteh therefore was not admissible to Canada pursuant to 34(1)(f) of the Act. JUDICIAL REVIEW AND CERTIFIED QUESTION", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-3", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 7–10", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Poshteh sought judicial review in the Federal Court. Gibson J. found no reviewable error by the Immigration Division and dismissed the judicial review. However, he certified the following question for appeal pursuant to paragraph 74(d) of the Act: Having regard to section 7 of the Canadian Charter of Rights and Freedoms and international human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, is there, on the particular facts underlying this application for judicial review, any distinction in liability between the Applicant who was a minor at all times relevant to his activities on behalf of the Mujahedin-e-Khalq and an adult undertaking equivalent activities on behalf of such an organization without being a formal member of that organization, for inadmissibility under subsection 34(1) of the Immigration and Refugee Protection Act?\n\nThis appeal arises from that certified question. ISSUES\n\nThere are two issues in the appeal: 1. whether, irrespective of his age, there are reasonable grounds to believe that Mr. Poshteh was a member of the MEK; and 2. whether Mr. Poshteh's status as a minor is a relevant consideration under paragraph 34(1)(f) of the Act and if so, what considerations are to be taken into account in determining membership by a minor.\n\nWhether there are reasonable grounds to believe that the MEK engages, has engaged or will engage in terrorism is not in issue. The Immigration Division found there were reasonable grounds to so believe and this determination is not challenged by Mr. Poshteh. POSITION OF MR. POSHTEH", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-4", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 11–14", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Poshteh says that the test for membership in a terrorist organization should be based on the degree of integration of the individual within the organization. He says he was not sufficiently integrated into the MEK to be considered a member.\n\nHowever, his primary argument is that in the case of a minor, the term \"member\" in paragraph 34(1)(f) should be construed narrowly, interpreted as applying only to individuals directly involved in violence or who hold leadership positions in the terrorist organization. Such an interpretation would mean that paragraph 34(1)(f) would be inapplicable to Mr. Poshteh because his activities were not violent and because he was not acting in a leadership capacity. POSITION OF THE INTERVENER\n\nThe intervener, Canadian Foundation for Children, Youth and the Law, takes the position that \"the decision as to whether or not the pamphleting activities of a child make the person inadmissible as a member of a terrorist organization must be made in the best interests of the child, whether the child seeks asylum in Canada or seeks asylum after becoming a rehabilitated young adult.\" ANALYSIS Section 33\n\nSection 33 provides: 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-5", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 15–19", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "The parties do not take issue with the test for inadmissibility applied by the Immigration Division - that there are reasonable grounds to believe that the foreign national was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism. For the sake of simplicity, I will take the liberty of referring to the security grounds for inadmissibility in this case as \"being a member of a terrorist organization.\" Standard of Review - Decision of the Immigration Division\n\nThere is disagreement between the parties as to whether the standard of review that should be applied by the Federal Court to the Immigration Division's decision is reasonableness or correctness. Based on the approach of the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, a pragmatic and functional analysis is required.\n\nA serious question of general importance arising from the decision of the Immigration Division has been certified under paragraph 74(d) of the Act. Although the question refers to \"the particular facts underlying this application for judicial review,\" I infer that the question was certified for appeal because, in the opinion of Gibson J., the application of paragraph 34(1)(f) to minors is a question of general importance. This generally suggests a less deferential standard of review.\n\nThe Immigration Division has expertise in fact-finding which requires great deference to its findings of fact. In this case, the findings of fact by the Immigration Division are not in dispute.\n\nThe issues here are not \"polycentric,\" but rather are ones in which the state is a protagonist against the individual. This supports less deference on both issues.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-6", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 20–21", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "Both issues involve questions of mixed fact and law. However, the legal components of the issues can be extricated from the mixed questions. In the case of the first issue, the legal question is the interpretation of the term \"member\" in paragraph 34(1)(f). In the case of the second issue, the legal question is whether Mr. Poshteh's status as a minor is to be taken into account and if so, what considerations are relevant.\n\nParagraph 34(1)(f) forms part of the Immigration Division's constituent legislation. The question of membership in a terrorist organization is not something that is extraneous to its regular work. The expertise of the Immigration Division is in, among other things, determining whether criteria for inadmissibility have been established. These criteria include membership in a terrorist organization. Therefore, the interpretation of the term \"member\" in paragraph 34(1)(f) is, I think, a legal matter with respect to which the Immigration Division has some expertise. Finally, I would note that the interpretation of the term \"member\" in paragraph 34(1)(f), while necessary to address, is not a matter squarely within the question certified by Gibson J. Therefore, some deference is due the Immigration Division on this legal issue.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-7", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 22–24", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, whether Mr. Poshteh's status as a minor is to be taken into account and if so, what considerations are relevant, is not a legal question that the Immigration Division would regularly encounter. There is no reference to age in paragraph 34(1)(f). On the other hand, the courts do encounter cases in which the application of a law to a minor is a relevant consideration. Whether age is to be taken into account and if so, in what manner are matters in which the expertise of the Court is greater than that of the Immigration Division, suggesting less deference on this issue.\n\nHaving regard to the pragmatic and functional considerations to which I have adverted, I conclude: (a) the question of the interpretation of the term \"member\" in paragraph 34(1)(f) is reviewable on a standard of reasonableness; and (b) the question of whether age is to be considered under paragraph 34(1)(f) and if so, the manner of doing so is reviewable on a standard of correctness.\n\nApplying the relevant standards of review to the legal questions, should the Court find it necessary to intervene, the Court will either quash the Immigration Division's decision if it finds that Mr. Poshteh could not be a member of a terrorist organization or it will remit the matter to the Immigration Division for redetermination having regard to the proper legal tests. However, should the Court not find the Immigration Division's legal determinations with respect to the term \"member\" and Mr. Poshteh's minor status to be unreasonable or incorrect, respectively, the questions of mixed fact and law, namely the application of the law to the facts by the Immigration Division, should be reviewed on a reasonableness standard. Standard of Review - Decision of the Federal Court", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-8", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 25–26", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "The standard of review by this Court of the Federal Court decision is correctness on a question of law and palpable and overriding error on a question of fact or mixed law and fact. (See Housen v. Nikolaisen, [2002] 2 S.C.R. 235 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226.) Issue 1: Member - Law\n\nI now turn to whether, without regard for Mr. Poshteh's age, his activities for the MEK could constitute him a member of that organization. If an adult would not be considered a member on the facts applicable to Mr. Poshteh, it will be unnecessary to address the question of age. Only if his activities would have resulted in him being found to be a member if he were an adult at the relevant time, will it be necessary to consider whether his status as a minor at that time requires a different conclusion.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-9", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "para 27", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "There is no definition of the term \"member\" in the Act. The courts have not established a precise and exhaustive definition of the term. In interpreting the term \"member\" in the former Immigration Act, R.S.C. 1985, c. I-2, the Trial Division (as it then was) has said that the term is to be given an unrestricted and broad interpretation. The rationale for such an approach is set out in Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 at paragraph 52 (T.D.): [52] The provisions deal with subversion and terrorism. The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not therefore easily identifiable. The Minister of Citizenship and Immigration may, if not detrimental to the national interest, exclude an individual from the operation of s. 19(1)(f)(iii)(B). I think it is obvious that Parliament intended the term \"member\" to be given an unrestricted and broad interpretation.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-10", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 28–30", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "The same considerations apply to paragraph 34(1)(f) of the Immigration Refugee and Protection Act. As was the case in the Immigration Act, under subsection 34(2) of the Immigration and Refugee Protection Act, membership in a terrorist organization does not constitute inadmissibility if the individual in question satisfies the Minister that their presence in Canada would not be detrimental to the national interest. Subsection 34(2) provides: 34(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. 34(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national. Thus, under subsection 34(2), the Minister has the discretion to exclude the individual from the operation of paragraph 34(1)(f).\n\nBased on the rationale in Singh and, in particular, on the availability of an exemption from the operation of paragraph 34(1)(f) in appropriate cases, I am satisfied that the term \"member\" under the Act should continue to be interpreted broadly.\n\nNonetheless, Mr. Poshteh says that the Immigration Division erred by determining the question of membership on the basis of the nature and duration of his activities, while failing to consider his level of integration within the organization. He says the key consideration for membership is a significant level of integration within an organization. He submits that adopting significant integration as the test for membership would promote more consistent decision-making by the Immigration Division.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-11", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 31–32", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "I am not persuaded that Mr. Poshteh's significant integration test would achieve the consistency that he says is presently lacking in Immigration Division decisions. A significant integration test would still require an assessment of the facts and a judgment as to whether the degree of integration in any particular case was sufficient to constitute the individual a member. More importantly, a test for membership based on significant integration would not be consistent with the broad interpretation to be given to the term \"member.\"\n\nThe Immigration Division adopted a broad approach to the interpretation of the term \"member.\" It was not unreasonable for it to have done so. Issue 1: Member - Facts", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-12", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 33–34", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Immigration Division's factual findings are the following: (a) Mr. Poshteh's involvement with the MEK consisted solely of disseminating propaganda; (b) he disseminated propaganda for approximately two years; (c) at his hearing he referred to himself at one point as a member; (d) his involvement went beyond that of a mere sympathizer or supporter; (e) he shared in the MEK's overriding goal to overthrow the Iranian government; (f) although he was not formally enlisted in the MEK, it was not for lack of trying. He desperately wished to enlist in some formal fashion. He claimed he was denied that permission, but was allowed for a period of two years to engage in an activity for the benefit of the MEK; (g) propaganda is an important part of the MEK. The purpose is partly to educate but also to enlist sympathy and support for the cause. Support could range from funding, to enlistment of new members, to creating a climate where activities, violent or otherwise, could proceed; and (h) the distribution of propaganda twenty-four to forty-eight times over a period of two years was a significant level of activity and was not marginal or minimal.\n\nBased on these findings, the Immigration Division concluded that the functions Mr. Poshteh performed were equal to those of a member of the MEK and that he fulfilled the role of member for purposes of paragraph 34(1)(f) of the Act.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-13", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 35–37", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Poshteh gives a number of reasons why he was not significantly integrated within the MEK. He says he never received initiation, indoctrination or training. He never attended meetings. He did not know where the meetings were held or the hierarchy of the group. He had no decision-making power. He did not create the propaganda. He did not recruit members or raise funds. His only contacts were his father's friend and the individual with whom he distributed the propaganda. He says he was not involved in influential media such as radio, television or newspaper propaganda. In addition, the flyers were not distributed more broadly than in local neighbourhoods and schools. Given these circumstances, Mr. Poshteh says his involvement was limited.\n\nIn any given case, it will always be possible to say that although a number of factors support a membership finding, a number point away from membership. An assessment of these facts is within the expertise of the Immigration Division.\n\nHere, the Immigration Division based its conclusion on what appears to be a thorough assessment of the evidence. It considered what Mr. Poshteh did, the length of his involvement with the MEK, his attempt to become a formal member and the effect of distributing propaganda. It concluded that Mr. Poshteh's activity was not minimal or marginal and was sufficient to constitute membership for purposes of paragraph 34(1)(f).", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-14", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 38–40", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "Based upon a somewhat probing examination, I cannot say that the reasons of the Immigration Division do not adequately support its conclusion that Mr. Poshteh was a member of the MEK for purposes of paragraph 34(1)(f) (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraphs 48-56). Not finding the Immigration Division's decision to be unreasonable, I conclude that Gibson J. did not err in deferring to that decision. Issue 2: Age - Law\n\nI now turn to the second issue. Mr. Poshteh does not ask for a blanket exemption from paragraph 34(1)(f) for minors. Rather, his argument is that having regard to his status as a minor, he should not be considered to be a member unless he was involved in violent activities or was a leader of the organization.\n\nThere is no express exemption for minors in section 34. To find a blanket exemption for minors would require reading words into paragraph 34(1)(f) that were not put there by Parliament. The Court must take the statute as it finds it. Therefore, I agree with Mr. Poshteh that there is no blanket exemption from paragraph 34(1)(f) for minors.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-15", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 41–42", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "By contrast, subsection 36(3)(e) of the Act provides that an individual cannot be found to be criminally inadmissible for an offence under the Young Offenders Act. (The Young Offenders Act was repealed on April 1, 2003, and replaced by the Youth Criminal Justice Act, S.C. 2002, c. 1.) Paragraph 36(3)(e) provides: (3) The following provisions govern subsections (1) and (2): . . . (e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act. (3) Les dispositions suivantes régissent l'application des paragraphes (1) et (2)_: . . . e) l'interdiction de territoire ne peut être fondée sur une infraction qualifiée de contravention en vertu de la Loi sur les contraventions ni sur une infraction à la Loi sur les jeunes contrevenants. Essentially, this means that for most offences committed by a minor, the individual will not be found to be criminally inadmissible. There is no similar provision that would provide for a blanket age exemption in section 34.\n\nHowever, I do not say that Parliament's silence on the subject of age in section 34 implies that the individual's status as a minor is irrelevant to the question of membership. An individual's status as a minor is widely recognized in both statute and common law and I see no reason why it should be ignored for purposes of paragraph 34(1)(f). (See R. v. Hill, [1986] 1 S.C.R. 313 at 348-351 per Wilson J. dissenting. The majority reasons are not in conflict with her general comments on this point.)", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-16", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 43–44", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nonetheless, that recognition of an individual's status as a minor does not in all cases require a blanket exemption from application of a law to the minor. That is particularly the case where the status of a minor is recognized by the common law but not by statute. In the case of common law recognition, capacity is often viewed on a continuum on which the presumption of capacity increases with the age of the minor. (In the context of criminal law, see R. v. Chaulk, [1990] 3 S.C.R. 1303 at 1319-1320 per Lamer C.J.; in the context of tort law, see R. v. Hill, supra, per Wilson J. at pages 350-351.)\n\nA statutory blanket exemption or exclusion in respect of minors is often a proxy for individual assessments of matters such as maturity, responsibility or mental capacity to make an informed decision, where such individual assessments are impractical. In the case of voting rights, for example, it has been held that setting the voting age at eighteen is to ensure, as far as possible, that those eligible to vote are mature enough to make rational and informed decisions about who should represent them in government (see Fitzgerald (Next friend of) v. Alberta, [2003] 3 W.W.R. 752 (Q.B.), aff'd [2004] 6 W.W.R. 416 (C.A.), leave to appeal to S.C.C. refused, 6 January 2005). It would obviously not be possible to conduct such an assessment on an individual basis for voting purposes. A bright-line age test is therefore a practical way to deal with the matter.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-17", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 45–47", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "Different considerations apply in respect of paragraph 34(1)(f). Here, the Act expressly provides for individual assessments for admissibility. That is not to say that Parliament could not, as it did in section 36, provide for a blanket age exemption in section 34. But because Parliament did not do so, an individual's status as a minor is simply a further consideration in the individual assessment made under paragraph 34(1)(f).\n\nHaving concluded that, although there is no blanket exemption for minors, an individual's status as a minor is still relevant under paragraph 34(1)(f), the next question is what considerations are to be taken into account.\n\nIt seems to me that in the context of age, relevant considerations in paragraph 34(1)(f) would be matters such as whether the minor has the requisite knowledge or mental capacity to understand the nature and effect of his actions. It is open to the minor to advance those considerations and whatever other arguments support an exemption from paragraph 34(1)(f) on the basis of his status as a minor and to provide evidence in support of those arguments.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-18", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 48–49", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "While a finding of membership in a terrorist organization may be possible for a minor of any age, it would be highly unusual for there to be a finding of membership in the case of a young child, say, under the age of twelve. Although it will depend on the evidence in each case, it would seem self-evident that in the case of such children, the presumption would be that they do not possess the requisite knowledge or mental capacity to understand the nature and effect of their actions. In the case of young children, the age of the child itself would be prima facie evidence of an absence of the requisite knowledge or mental capacity. There would be an obligation on the Immigration Division to carefully consider the level of understanding of such a child.\n\nIndeed, at common law there was an irrebuttable presumption that a child under the age of seven was incapable of possessing criminal intent; once a child reached the age of fourteen, the common law presumption of criminal incapacity disappeared and was replaced by a rebuttable presumption of capacity for criminal intent. (See R. v. Chaulk, supra, at page 1319.) Today, under section 13 of the Criminal Code, R.S.C. 1985, c. C-46, a child shall not be convicted of an offence in respect of an act or omission on his part while under the age of twelve years. Section 13 provides: 13. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years. 13. Nul ne peut être déclaré coupable d'une infraction à l'égard d'un acte ou d'une omission de sa part lorsqu'il était âgé de moins de douze ans.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-19", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 50–52", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "Over the age of eleven, minors are held responsible for their criminal actions. The Youth Criminal Justice Act provides for a unique system of procedures, courts and dispositions from that provided in the Criminal Code, but it does not provide an exemption from criminal responsibility for a minor's actions.\n\nFor purposes of determining membership in a terrorist organization by a minor, the requisite knowledge or mental capacity should be viewed on a continuum. Just as there would be a presumption against the requisite knowledge or mental capacity in the case of young children, there would be a presumption that the closer the minor is to eighteen years of age, the greater will be the likelihood that the minor possesses the requisite knowledge or mental capacity.\n\nI have said that it is open to the minor to raise whatever factors he considers relevant in the particular case. For example, issues of duress or coercion may be relevant. However, these issues do not arise in this case since it was Mr. Poshteh who approached his father's friend, asking to become a member of the MEK.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-20", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 53–55", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "I would agree with Mr. Poshteh that it would be very difficult for a minor to argue that he should not be found to be a member if he had been directly involved in violent activities or had held a leadership role in the terrorist organization. However, lesser involvement may still result in a finding of membership. It is not necessarily the nature of the involvement with the terrorist organization that will determine the issue, although those considerations may be relevant. Rather, matters such as knowledge or mental capacity are the types of considerations to be taken into account in deciding whether a determination of membership in a terrorist organization in the case of a minor is to be different than in the case of an adult.\n\nThe Immigration Division's reasons demonstrate that it dealt with Mr. Poshteh's arguments based on age and it was correct in so doing. Even though Mr. Poshteh did not make explicit lack of knowledge or mental capacity arguments, the Immigration Division's reasons do inferentially deal with his knowledge and mental capacity. Issue 2: Age - Facts\n\nIn acknowledging and dealing with Mr. Poshteh's arguments based on age, the Immigration Division concluded that: 1. Mr. Poshteh was not ignorant of the violent activities of the MEK; 2. he became involved with the MEK of his own volition; 3. his involvement may have been initially motivated by passion but it continued for two years; and 4. he made his own decisions, even against the advice of adults.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-21", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 56–57", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Immigration Division found that Mr. Poshteh continued his activity with the MEK until he was seventeen years and eleven months. Where a minor of that age knows of the violent activity of the organization, becomes involved of his own volition, continues for over two years and leaves only after he is arrested, it cannot be said that it is unreasonable for the Immigration Division not to accept his arguments based on his status as a minor and to find him to be a member of the terrorist organization. The Best Interests of the Child\n\nMr. Poshteh and the intervener argue that in the case of a minor, the Immigration Division must take into account the best interests of the child. Indeed, paragraph 3(3)(f) requires that the Act be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. Paragraph 3(3)(f) provides: 3(3) This Act is to be construed and applied in a manner that . . . (f) complies with international human rights instruments to which Canada is signatory. 3(3) L'interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet_: . . . f) de se conformer aux instruments internationaux portant sur les droits de l'homme dont le Canada est signataire.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-22", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 58–60", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "One such instrument is the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, Can. T.S. 1992 No. 3 (entered into force 2 September 1990). Article 3 requires that in all actions of courts of law and administrative authorities, the best interests of the child shall be a primary consideration. Article 3.1 provides: 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of primary concern.\n\nI do not think that the Convention on the Rights of the Child is relevant in this case. For purposes of the Convention, the action in this case is the proceeding and decision of the Immigration Division. However, at the time the matter was considered by the Immigration Division, Mr. Poshteh was no longer a minor. He was eighteen when he arrived in Canada. As I read the Convention, it is concerned with the interests of children while they are children. It does not purport to confer rights on adults.\n\nIt is important in this case to distinguish between considerations such as whether an individual has the knowledge or mental capacity to understand the nature and effect of his actions, which are relevant, and the \"best interests of the child\" considerations under the Convention, which are not relevant. Mr. Poshteh was an adult when he invoked and became subject to Canada's immigration laws and procedures and therefore he cannot rely on the Convention. Charter Rights", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-23", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 61–62", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Immigration Division found that Mr. Poshteh's section 7 Charter rights were not engaged. In his factum, Mr. Poshteh says that he \"... does not seek to challenge that finding in this proceeding ...\". However, he argues that even though his life, liberty and security of the person rights are not engaged, Parliament's intention is that the Act is to be construed in a manner consistent with principles of fundamental justice. Later in his factum, Mr. Poshteh submits that the Charter and other documents \"are unanimous on the principle that the liability of a minor cannot simply mirror that of an adult but rather must provide special treatment.\"\n\nThe principles of fundamental justice in section 7 of the Charter are not independent self-standing notions. They are to be considered only when it is first demonstrated that an individual is being deprived of the right to life, liberty or security of the person. It is the deprivation that must be in accordance with the principles of fundamental justice. (See, for example, Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paragraph 47.)", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-24", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 63–64", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "Here, all that is being determined is whether Mr. Poshteh is inadmissible to Canada on the grounds of his membership in a terrorist organization. The authorities are to the effect that a finding of inadmissibility does not engage an individual's section 7 Charter rights. (See, for example, Barrera v. Canada (MCI) (1992), 99 D.L.R. (4th) 264 (F.C.A.).) A number of proceedings may yet take place before he reaches the stage at which his deportation from Canada may occur. For example, Mr. Poshteh may invoke subsection 34(2) to try to satisfy the Minister that his presence in Canada is not detrimental to the national interest. Therefore, fundamental justice in section 7 of the Charter is not of application in the determination to be made under paragraph 34(1)(f) of the Act. CONCLUSION\n\nI would answer the certified question in the following manner: (a) section 7 of the Charter is not engaged in the determination to be made by the Immigration Division under paragraph 34(1)(f) of the Act; (b) the Convention on the Rights of the Child does not apply when the proceedings and decision involving an individual take place when the individual is no longer a minor; (c) an individual's status as a minor is relevant and there may be a distinction between a minor and an adult in the determination of whether the individual is a member of a terrorist organization under paragraph 34(1)(f) of the Act if the minor provides evidence to support such a distinction; and (d) in the present case, Mr. Poshteh's age was properly considered by the Immigration Division and it was open to the Immigration Division to determine that he was a member of a terrorist organization for purposes of paragraph 34(1)(f) of the Act.", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-32333-25", - "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 65–66", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Immigration Division did not make unreasonable findings in concluding that Mr. Poshteh was inadmissible under paragraph 34(1)(f) of the Act. There was no error of law or palpable and overriding error of fact in the reasons of Gibson J.\n\nThe appeal should be dismissed with costs. \"Marshall Rothstein\" J.A. \"I agree Marc Noël, J.A.\" \"I agree B. Malone, J.A.\" FEDERAL COURT OF APPEAL", - "current_to": "2005-03-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" - }, - { - "id": "fca-35576-1", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 1–5", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Jeremy Hinzman and Brandon Hughey voluntarily enlisted to serve in the United States military. During their time in the military, they developed an objection to the war in Iraq, resulting in their belief that it is illegal and immoral. After learning that their units would be deployed to Iraq, they deserted the military and came to Canada, where they made claims for refugee status.\n\nThe Refugee Protection Division of the Immigration and Refugee Board (the “Board”) considered the claims of Mr. Hinzman and Mr. Hughey (collectively referred to in these Reasons as the “appellants”) for refugee status and held that the appellants are not Convention refugees or persons in need of protection, as set out in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The Board therefore concluded that the appellants are not entitled to stay in Canada as refugees.\n\nIn the Federal Court, Mactavish J. dismissed applications for judicial review by the appellants and certified a question which appears later in these Reasons (Hinzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 420, Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC 421).\n\nThe appellants now appeal to this Court. However, for the reasons that follow, I see no reason to depart from the conclusions of the Board and Mactavish J. that the appellants are not entitled to refugee status. Accordingly, I would dismiss the appeals.\n\nThese Reasons are given in respect of both appeals (A-182-06 and A-185-06). A copy will be placed in the file of each appeal. FACTS IN THE HINZMAN APPEAL", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-2", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 6–9", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "In late 2000, Jeremy Hinzman enlisted for a four-year term in the U.S. Army. Mr. Hinzman’s decision to join the military was motivated both by the fact that the military would provide him with financial assistance that would allow him to attend university upon completion of his term of enlistment and by his belief that the Army had a higher or noble purpose of doing good things. He chose specifically to become an infantryman because he wanted “to experience the essence of the Army.”\n\nPrior to enlisting in the Army, Mr. Hinzman had apparently explored Buddhism. Nevertheless, at the outset of his military service, it appears he did not have any reservations about bearing arms or otherwise fulfilling his duties as a soldier.\n\nHowever, during basic training, Mr. Hinzman testified that he underwent a process of desentization intended to dehumanize the enemy that caused him to start to question his involvement with the military.\n\nAfter completing training, Mr. Hinzman was posted to Fort Bragg. Although he excelled as a soldier, Mr. Hinzman continued to question his impending involvement in combat. He testified before the Board that he had been “kind of living a double life,” outwardly indicating that he was a “soldier’s soldier” but inwardly developing concerns about killing. Ultimately, he concluded that he could not kill, and that all violence does is perpetuate more violence.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-3", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 10–11", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Consequently, Mr. Hinzman applied on August 2, 2002 for reassignment to non-combat duties as a conscientious objector, in accordance with Army Regulation 600-43. Although he indicated on his application that he was not a member of a religious sect or organization, he noted that over the past few years, he had been discovering a world-view framed by the teachings of Buddhism, which led to his decision that he was unable to kill. He also stated in the application that in January 2002, he and his wife had begun attending meetings of The Religious Society of Friends, or Quakers, a church espousing pacifism. In accordance with the military’s conscientious objector procedures, within three days of submitting his application for conscientious objector status, Mr. Hinzman was reassigned to guard the entrance gate at the Fort Bragg base.\n\nFor reasons that are unclear, Mr. Hinzman’s first conscientious objector application was not dealt with on its merits. Accordingly, he submitted a new application in October 2002, after he had learned that his unit would be deployed to Afghanistan. Mr. Hinzman believed that the United States had a legitimate basis for going into Afghanistan because he was satisfied that there were links between the Taliban regime then in power in Afghanistan and al-Qaeda, the terrorist organization responsible for the September 11, 2001 attacks on the United States. Mr. Hinzman therefore went to Afghanistan, where he was assigned to kitchen duties because of his pending application for conscientious objector status.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-4", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 12–13", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "A hearing was held in respect of Mr. Hinzman’s conscientious objector application while he was in Afghanistan, on April 2, 2003. Although First Lieutenant Dennis Fitzgerald, who was appointed investigating officer, was satisfied that Mr. Hinzman sincerely opposes war on a philosophical, societal and intellectual level, he concluded that Mr. Hinzman did not meet the definition of conscientious objector, as outlined in Army Regulation 600-43, because Mr. Hinzman had indicated that while he was unable to conduct offensive operations in combat, he would conduct defensive and peacekeeping operations. The First Lieutenant therefore denied Mr. Hinzman’s conscientious objector application. First Lieutenant Fitzgerald also held that Mr. Hinzman was using his conscientious objector application to get out of the infantry, a conclusion based, in part, on the negative and apparently erroneous, inference drawn from the First Lieutenant’s belief that Mr. Hinzman did not claim conscientious objector status until after he learned he would be deployed to Afghanistan.\n\nAlthough Mr. Hinzman has complained about his inability to call witnesses at the hearing because the hearing was held in Afghanistan and the witnesses he would have called were in the United States, he did not request an adjournment of the hearing, as he was permitted to do under Army Regulation 600-43. Moreover, Mr. Hinzman chose not to exercise his right to appeal the First Lieutenant’s decision, indicating that upon returning to the United States he was worn down and felt there would be no point in pursuing the matter.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-5", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 14–18", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Hinzman subsequently returned to the United States and resumed his normal duties as an infantryman. In December 2003, he learned that his unit would be deployed to Iraq on January 16, 2004. He was determined, however, not to fight in Iraq because he believed the United States military action there to be illegal and immoral. Consequently, Mr. Hinzman decided to desert.\n\nMr. Hinzman, along with his wife and son, arrived in Canada on January 3, 2004 and filed for refugee status approximately three weeks later. His refugee claim was based on his beliefs described above.\n\nMr. Hinzman maintains that, if returned to the United States, he will be prosecuted for desertion and likely receive a sentence of one to five years in a military prison. FACTS IN THE HUGHEY APPEAL\n\nBrandon Hughey volunteered to join the U.S. Army on July 30, 2002 at the age of 17 years, while still a student in high school. He reported for duty on July 9, 2003. Like Mr. Hinzman, he enlisted for a period of four years. Mr. Hughey testified that he joined the military to access financial assistance that would enable him to go to college and because he believed that some things were worth fighting for.\n\nMr. Hughey learned of the war in Iraq while he was in basic training. Although he originally assumed the war in Iraq could be justified, his opinion changed over time, so that he too believed that the war in Iraq was illegal.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-6", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 19–21", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Hughey testified that while on approved leave from his unit from November 20, 2003 to December 18, 2003 he conducted research about the U.S. military action in Iraq that further entrenched his opposition to the war. Upon his return to his duty station, Fort Hood, Mr. Hughey told his non-commissioned staff sergeant that he did not think the military action in Iraq was morally right and asked the staff sergeant for assistance in seeking a discharge from the military. Mr. Hughey was told to stop thinking so much, that he had signed a contract, and that there was nothing that the superior officer was going to do to help accommodate his request for a discharge. A similar appeal by Mr. Hughey to another superior officer on a later occasion elicited a similar response.\n\nThrough research on the internet, Mr. Hughey learned of an anti-war activist named Carl Rising-Moore who was willing to help soldiers escape the military. After Mr. Hughey contacted him in February 2004, Mr. Rising-Moore agreed to help Mr. Hughey get to Canada and explained that Mr. Hughey’s only option would be to apply for refugee status on his arrival.\n\nWhile Mr. Hughey and Mr. Rising-Moore were exchanging e-mails, Mr. Hughey learned that he would be deployed to Iraq. He therefore left his base and arrived in Canada with Mr. Rising-Moore on March 5, 2004. Mr. Hughey applied for refugee protection approximately one month later, on the basis that he had a well-founded fear of persecution in the United States because of his political opinion.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-7", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 22–24", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "In his testimony, Mr. Hughey stated his belief that if returned to the United States he would face one to five years in prison and that he might face a more severe sentence because the Army knew through interviews in Canada that he had sought asylum in another country. He also testified that in basic training his drill sergeants told the soldiers that they could be put to death for desertion. DECISIONS OF THE BOARD 1) Interlocutory Decision as to Admissibility of Evidence\n\nMr. Hinzman brought a preliminary motion before the Board to adduce evidence to establish that the war in Iraq is illegal under international law. He maintained that this evidence of illegality was relevant to his claim because it would bring him within paragraph 171 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (the “Handbook”), a document treated as a “highly persuasive authority” in an assessment of whether an individual qualifies for refugee status: Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at page 659.\n\nParagraph 171 of the Handbook provides as follows: 171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-8", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 25–28", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Hinzman argued before the Board that an illegal war constitutes a military action “condemned by the international community as contrary to basic rules of human conduct,” within the meaning of paragraph 171 of the Handbook, such that any punishment for deserting an illegal war would constitute persecution.\n\nThe Board disagreed. In its view, when paragraph 171 of the Handbook speaks of a military action contrary to basic rules of human conduct, it refers to specific acts the soldier would be expected to perform “on the ground,” not to the legality of the conflict as a whole. Accordingly, the Board concluded the illegality of the war in Iraq was not relevant to Mr. Hinzman’s claims and therefore refused to admit evidence directed to the issue.\n\nThe appellants are represented by the same counsel. Moreover, Mr. Hughey’s case was heard by the same Board member who had previously adjudicated the Hinzman case. In light of the Board’s preliminary evidentiary ruling in the Hinzman case, counsel for the appellants did not adduce evidence as to the illegality of the war in Iraq in the Hughey case. 2) Decisions as to the Merits of the Refugee Claims\n\nAlthough the Board issued separate Reasons in the Hinzman and Hughey cases, the claims in each case were dismissed on substantially the same basis. Therefore, I summarize the key holdings of the Board collectively.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-9", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 29–30", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Board first identified that there is a presumption in refugee law that states are capable of protecting their citizens. Likewise, the Board noted that there is a presumption that ordinary laws of general application, such as the U.S. laws relating to desertion, are not persecutory. After a detailed analysis, the Board concluded that the appellants had failed to rebut these presumptions of state protection and neutrality of laws and as such, their refugee claims could not succeed.\n\nThe Board also considered the appellants’ contention that the U.S. military action in Iraq involves serious violations of international humanitarian law which are condemned by the international community as contrary to basic rules of human conduct. The appellants argued that, because of these violations of international humanitarian law, paragraph 171 of the Handbook directs that any punishment for their refusal to participate in such conduct would amount to persecution. The Board rejected this argument after an extensive review of the evidence adduced to establish the “on the ground” conduct of the United States military in Iraq. According to the Board, the appellants failed to adduce sufficient evidence to show that if deployed to Iraq they would personally have been required to engage in conduct condemned by the international community as contrary to basic rules of human conduct.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-10", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 31–32", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Finally, the Board considered whether the punishment the appellants would face upon return to the United States would amount to persecution. To establish this claim, the Board indicated that the appellants would have to show that the relevant provisions of the U.S. Uniform Code of Military Justice (“UCMJ”) would be applied to them in a discriminatory fashion or would amount to cruel or unusual treatment or punishment. Neither of these grounds, in the Board’s view, was made out by the appellants. Accordingly, the appellants’ applications for refugee status were rejected. DECISIONS OF THE FEDERAL COURT\n\nThe appellants sought judicial review of the Board’s decisions in the Federal Court. A central issue before Mactavish J. was the interpretation and application of paragraph 171 of the Handbook. The appellants argued that the Board had been wrong to exclude evidence of the Iraq war’s illegality as irrelevant to the appellants’ refugee claims, that the Board erred in finding that the appellants had not established that the violations of international humanitarian law committed by the American military in Iraq are systemic, and that the Board had applied too heavy a burden on the appellants to demonstrate that they would have been involved in unlawful acts had they gone to Iraq.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-11", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 33–34", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "After extensive reasons, Mactavish J. rejected all of the appellants’ claims regarding paragraph 171. She held that in the case of a mere foot soldier, paragraph 171 refers only to “on the ground” conduct of the soldier in question, not to the legality of the war itself. Moreover, she concluded that the Board’s holding that violations of international humanitarian law by the American military in Iraq were not systemic or condoned by the state was a finding of fact reviewable on a standard of patent unreasonableness. In her view, the appellants were unsuccessful in impeaching the Board’s finding against this standard. Likewise, Mactavish J. was satisfied that the Board had applied the appropriate standard of proof in determining whether the appellants had demonstrated that they would have been involved in unlawful acts had they gone to Iraq.\n\nFinally, Justice Mactavish considered whether it was reasonable for the Board to find that the appellants had failed to rebut the presumption of state protection. She concluded that the Board’s decision was appropriate. In her view, because there is no internationally recognized right to conscientiously object to a particular war, other than in the circumstances specifically identified in paragraph 171 of the Handbook, which in her view were not made out in either of the present cases, the fact that the appellants may face prosecution upon return to the United States did not amount to a failure of state protection or to persecution on the basis of political opinion.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-12", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 35", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Accordingly, Mactavish J. concluded that there was no basis for interfering with the decisions of the Board. She also certified the following question: When dealing with a refugee claim advanced by a mere foot soldier, is the question whether a given conflict may be unlawful in international law relevant to the determination which must be made by the Refugee Division under paragraph 171 of the UNHCR Handbook? RELEVANT STATUTORY PROVISIONS", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-13", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 36", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Section 95 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) confers refugee status on individuals who are Convention refugees, while section 96 of IRPA defines what constitutes a Convention refugee. The text of these sections is as follows: 95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4). 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 95.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-14", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 36", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). (2) Est appelée personne protégée la personne à qui l’asile est conféré et dont la demande n’est pas ensuite réputée rejetée au titre des paragraphes 108(3), 109(3) ou 114(4). 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. ANALYSIS 1) Introduction", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-15", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 37–38", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "The certified question asks this Court to rule on whether evidence of the illegality of a military action is relevant to an analysis governed by paragraph 171 of the Handbook. However, to qualify for refugee status, the appellants would have to first satisfy the court that they sought, but were unable to obtain, protection from their home state, or alternatively, that their home state, on an objective basis, could not be expected to provide protection. In my view, for the reasons that follow, the appellants are unable to satisfy this first criterion and therefore it is unnecessary to proceed to the second stage of the analysis where the certified question might become relevant. I would therefore decline to answer the certified question and would dismiss the appeals. 2) Standard of Review\n\nMactavish J. correctly identified that questions as to the adequacy of state protection are questions of mixed fact and law ordinarily reviewable against a standard of reasonableness (Hinzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 420 at paragraph 199, Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC 421 at paragraph 186). As the discussion that follows will illustrate, I am of the view that the Board’s holding that the appellants failed to rebut the presumption of state protection was reasonable. 3) State Protection and Persecution", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-16", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 39", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "In their Memoranda of Fact and Law, the appellants accept that to succeed in their claims for refugee status, they must come within the definition of “Convention refugee,” which is set out in section 96 of IRPA: 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-17", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 40–41", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellants argue that if they are returned to the United States, they will face one to five years in prison for deserting the military. This punishment, they say, amounts to persecution on the basis of their political opinion that the war in Iraq is illegal and immoral. Moreover, they maintain that because the alleged persecutor is the state itself, state protection from persecution is necessarily absent. Therefore, the appellants assert that they are Convention refugees.\n\nIn evaluating the appellants’ claims, the starting point must be the direction from the Supreme Court of Canada that refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protections of his home state. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 709 (“Ward”), La Forest J., speaking for the Court, explained this concept as follows: At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. [Emphasis added.]", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-18", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 42", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellants say they fear persecution if returned to the United States. However, to successfully claim refugee status, they must also establish that they have an objective basis for that fear: Ward at page 723. In determining whether refugee claimants have an objective basis for their fear of persecution, the first step in the analysis is to assess whether they can be protected from the alleged persecution by their home state. As the Supreme Court of Canada explained in Ward at page 722, “[i]t is clear that the lynch-pin of the analysis is the state’s inability to protect: it is a crucial element in determining whether the claimant’s fear is well-founded.” [Emphasis in original.] Where sufficient state protection is available, claimants will be unable to establish that their fear of persecution is objectively well-founded and therefore will not be entitled to refugee status. It is only where state protection is not available that the court moves to the second stage, wherein it considers whether the conduct alleged to be persecutory can provide an objective basis for the fear of persecution. If indeed the illegality of the war is relevant, it is at this second stage that the court would consider it. However, because I have determined that the appellants are unable to satisfy the first stage of the analysis, that is, that the United States is incapable of protecting them, it is unnecessary to consider the issues arising in the second stage, including the relevance of the legality of the Iraq war.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-19", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 43–45", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Ward, the Supreme Court explained at page 725 that in refugee law, there is a presumption of state protection: …nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.\n\nTo rebut the presumption, the Court stated that “clear and convincing confirmation of a state’s inability to protect must be provided”: Ward at page 724.\n\nIn Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 at page 534 (F.C.A.), Décary J.A. elaborated on these principles and highlighted that the more democratic a country, the more the claimant must have done to seek out the protection of his or her home state: When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. [Emphasis added.]", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-20", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 46", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "The United States is a democratic country with a system of checks and balances among its three branches of government, including an independent judiciary and constitutional guarantees of due process. The appellants therefore bear a heavy burden in attempting to rebut the presumption that the United States is capable of protecting them and would be required to prove that they exhausted all the domestic avenues available to them without success before claiming refugee status in Canada. In Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 at page 176 (F.C.A.) (“Satiacum”) this Court was called upon to consider a claim of insufficient state protection in the United States and commented on the difficult task facing a claimant attempting to establish a failure of state protection in the United States: In the case of a nondemocratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-21", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 47–48", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Although the United States, like other countries, has enacted provisions to punish deserters, it has also established a comprehensive scheme complete with abundant procedural safeguards for administering these provisions justly. In particular, Army Regulation 600-43 formally recognizes the validity of conscientious objection to military service by providing conscientious objectors with exemptions from military service or alternatives to combat. Soldiers attempting to avail themselves of these exemptions from combat service are provided with numerous procedural protections, including the right to a hearing and a right of appeal. They are also transferred to non-combat positions upon the making of an application, a provision from which Mr. Hinzman benefited when he was assigned to act as a guard at the entrance of the Fort Bragg base and to kitchen duties for the duration of his deployment in Afghanistan.\n\nFurthermore, while punishment for desertion can include imprisonment, the evidence indicates that the vast majority of Army deserters in the United States have not been prosecuted or court-martialled. Rather, approximately 94% of deserters have been dealt with administratively and merely receive a less-than-honourable discharge from the military (Exhibit M-5, Appeal Book at page 2420).", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-22", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 49–50", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Board found that no evidence had been brought forward to establish that the appellants would not be afforded the full protection of the law if they were court-martialled in the United States. It concluded that if the appellants were court-martialled, they would be subjected to a sophisticated military justice system that respects the rights of the service person, guarantees appellate review and provides a limited access to the U.S. Supreme Court, as outlined in the UCMJ and the Manual for Courts-Martial of the United States.\n\nNeither Mr. Hinzman nor Mr. Hughey made an adequate attempt to avail himself of the protections afforded by the United States. Although Mr. Hinzman applied for conscientious objector status, he did not avail himself of all the recourses available to him. In particular, he failed to take advantage of his right to request an adjournment of the hearing respecting his conscientious objector application until his return to the United States, where he would be able to call appropriate witnesses, and to avail himself of his right of appeal from a negative decision at first instance. Like the Board, I find that it was not unreasonable to expect that Mr. Hinzman would have pursued further his request for conscientious objector status after learning that First Lieutenant Fitzgerald had found against him.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-23", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 51–53", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Unlike Mr. Hinzman, Mr. Hughey did not apply for conscientious objector status, nor did he take any other formal steps to avoid combat service contrary to his political views. Mr. Hughey’s attempts to avail himself of protections available in the United States appear to be limited to the discussions he had with his superior officers about the possibility of obtaining a discharge from the military, in which he was told that such a discharge was not available. He apparently did not seek any other advice, for example from a chaplain or a lawyer, about the options available to him.\n\nRather than attempt to take advantage of the protections potentially available to them in the United States, the appellants came to Canada and claimed refugee status. As the Supreme Court of Canada directed in Ward, however, refugee protection is not available where there has been an inadequate attempt to seek out the protections available in one’s home country.\n\nThe appellants challenge this reasoning, arguing that evidence of the state’s failure to protect is unnecessary where the state is the agent of persecution. They cite Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 at paragraph 19 (F.C.T.D.), for the proposition that when the state is persecuting the claimants, state protection is, by definition, absent. They note that in Ward, at issue were the actions of a non-state entity that was allegedly persecuting the claimant. According to the appellants, only in that situation is it appropriate for the Court to inquire into whether the state was able to protect the refugee claimant from his persecutor.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-24", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 54", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, the concepts of persecution and state protection are interconnected such that the question of whether the refugee claimant has attempted to avail himself of the protective mechanisms provided by the state is relevant both where the alleged persecutor is an organ of the state and where the alleged persecutor is a non-state entity. The central feature of the refugee protection scheme is that the refugee claimant has a fear of persecution that is objectively well-founded (Ward at page 723). Where the claimant alleges that he is being persecuted by the state itself, the inquiry into the availability of state protection goes to the question of whether the claimant has an objective basis for his fear of persecution. If effective state protection for religious or political beliefs is available to the claimant, it can hardly be said that there is a serious possibility of persecution by the state sufficient to make his fear of persecution objectively well-founded. The presumption of state protection described in Ward, therefore, applies equally to cases where an individual claims to fear persecution by non-state entities and to cases where the state is alleged to be a persecutor. This is particularly so where the home state is a democratic country like the United States. We must respect the ability of the United States to protect the sincerely held beliefs of its citizens. Only where there is clear and convincing evidence that such protections are unavailable or ineffective such that state conduct amounts to persecution will this country be able to extend its refugee protections to the claimants.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-25", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 55", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "A second contention made by the appellants is that Ward requires refugee claimants to seek out protections provided by their home countries only if that protection can be said to “reasonably have been forthcoming.” In their assessment, the protections provided to the appellants by the United States would not meet this threshold. They say that the American approach to conscientious objection does not protect those who only object to specific wars, rather than to all wars. The appellants argue that because they fall into the former category, it cannot be said that protection from the United States “might reasonably have been forthcoming” to them such that they should have attempted to avail themselves of such procedures. Moreover, the appellants submit that they would be unable to challenge the legality of the Iraq war in a U.S. court because of the U.S. political questions doctrine which, they claim, renders such issues non-justiciable. In light of this doctrine the appellants say that their only option would be to appeal to the Executive, an illusory recourse, in their view, because it was the Executive that chose to go to war in Iraq.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-26", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 56", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "I cannot agree. A careful reading of Ward illustrates that when the Supreme Court of Canada adopted the test formulated by Professor Hathaway (that only in situations in which state protection “might reasonably have been forthcoming” will the claimant’s failure to approach the state for protection defeat his claim), the Court did not intend that refugee claimants would easily be able to avoid the requirement that they approach their home countries for protection before seeking international refugee protection. La Forest J. clarifies in the next sentence of his Reasons, at page 724, that the test is meant to be an objective one: …the claimant will not meet the definition of \"Convention refugee\" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities...", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-27", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 57", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Kadenko and Satiacum together teach that in the case of a developed democracy, the claimant is faced with the burden of proving that he exhausted all the possible protections available to him and will be exempted from his obligation to seek state protection only in the event of exceptional circumstances: Kadenko at page 534, Satiacum at page 176. Reading all these authorities together, a claimant coming from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status. In view of the fact that the United States is a democracy that has adopted a comprehensive scheme to ensure those who object to military service are dealt with fairly, I conclude that the appellants have adduced insufficient support to satisfy this high threshold. Therefore, I find that it was objectively unreasonable for the appellants to have failed to take significant steps to attempt to obtain protection in the United States before claiming refugee status in Canada.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-28", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 58", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "In the circumstances, it is difficult to conclude, without clear evidence of the appellants’ experiences to the contrary, that the appellants would have inadequate protection for their beliefs in the United States. Mr. Hinzman’s objections to combat transcend the war in Iraq and are grounded at least in part in his religious and spiritual beliefs. He may therefore very well have qualified as a conscientious objector had he pursued his application fully. Mr. Hughey may have more difficulty in seeking conscientious objector status because he objects only to the specific military action in Iraq on political grounds. Without evidence of his attempts to obtain such protection, however, it is impossible to know how he would have fared. In any event, conscientious objector discharges are not the only means by which soldiers can obtain early release from the military. Statistics adduced by the Crown indicate that approximately 94% of deserters from the U.S. Army have not faced prosecution and imprisonment, but have merely been dealt with administratively by being released from the military with a less-than-honourable discharge. Arguably, the chance of receiving an administrative discharge will be even higher for those who attempt to negotiate a discharge before deserting their units. Contrary to the appellants’ assertions, therefore, these statistics suggest that appeal to the Executive is not an illusory recourse.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-29", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 59", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "In oral argument, counsel for the appellants disputed the statistics relating to punishment for deserters on the basis that they were computed prior to the commencement of the most recent U.S. military action in Iraq. However, he could not point us to any contrary evidence. Moreover, there is reason to believe the statistics would not have changed materially. As Lord Hoffman noted in Sepet v. Secretary of State for the Home Department, [2003] UKHL 15 at paragraph 44 (H.L.), soldiers who conscientiously object to combat may do more harm than good because their unwillingness to participate voluntarily may make them ineffective in combat and because they are likely to be articulate individuals who will attempt to spread their beliefs among their colleagues. It therefore may be in the best interests of the military to accommodate those who object to combat by merely discharging them from service.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-30", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 60", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Moreover, while the Board said that the appellants would likely face one to five years imprisonment if returned to the United States, this can only be an opinion as to what U.S. courts would do. It is important to note that the Board’s Reasons did not consider all of the important evidence. In particular, the Reasons make no reference to the statistic that the vast majority of deserters are not prosecuted, let alone jailed for their conduct. As Justice Evans identified in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 at paragraph 17 (F.C.T.D.), a court will be reluctant to defer to a tribunal’s decision where the tribunal’s reasons consider in detail the evidence supporting its conclusions, but do not refer to important evidence pointing to a different conclusion: [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-31", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 61–62", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Although the Board considered evidence suggesting that the appellants would be imprisoned for desertion if returned to the United States, it failed to make reference to the critical statistic that most deserters have not been imprisoned. This failure on the part of the Board suggests that its opinion regarding the punishment the appellants will potentially face upon return to the United States was made without regard to the material before it and therefore the Board’s opinion cannot be relied upon. 4) Conclusion\n\nIn conclusion, the appellants have failed to satisfy the fundamental requirement in refugee law that claimants seek protection from their home state before going abroad to obtain protection through the refugee system. Several protective mechanisms are potentially available to the appellants in the United States. Because the appellants have not adequately attempted to access these protections, however, it is impossible for a Canadian court or tribunal to assess the availability of protections in the United States. Accordingly, the appellants’ claims for refugee protection in Canada must fail. CLAIMS OF MR. HINZMAN’S WIFE AND SON", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35576-32", - "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 63–64", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Hinzman’s wife, Nga Thi Nguyen, and son, Liam Liem Nguyen Hinzman, also claimed refugee status on the basis of membership in a particular social group, namely, Mr. Hinzman’s immediate family. Although they are named as appellants in the Hinzman appeal, no arguments were addressed to them in the Memorandum of Fact and Law filed in respect of that appeal or in oral argument. Moreover, the Order sought in the Hinzman appeal refers to the “Appellant,” in the singular, thereby apparently referring only to Mr. Hinzman. In these circumstances, I adopt the conclusions of the Board: The adult claimants adduced no evidence that Nga Thi Nguyen or Liam Liem Nguyen Hinzman would face a serious possibility of persecution or other serious harm as a result of being part of Mr. Hinzman’s family, even were he to receive a term of imprisonment for his desertion. They relied on the evidence of Mr. Hinzman, with whose claim theirs were joined. Since Mr. Hinzman has failed to establish his claim, their claims must also fail. DISPOSITION\n\nFor the foregoing reasons, I would refrain from answering the certified question and I would dismiss the appeals. \"J. Edgar Sexton\" J.A. \"I agree Robert Décary J.A.\" \"I agree John M. Evans J.A.\" FEDERAL COURT OF APPEAL", - "current_to": "2007-04-30", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" - }, - { - "id": "fca-35611-1", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 1–3", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Chairperson of the Immigration and Refugee Board (“the Board”) has broad statutory powers to issue both guidelines and rules. Rules have to be approved by the Governor in Council and laid before Parliament, but guidelines do not.\n\nThis appeal concerns the validity of Guideline 7 (Preparation and Conduct of a Hearing in the Refugee Protection Division), issued in 2003 by the Chairperson of the Board pursuant to the statutory power to “issue guidelines … to assist members in carrying out their duties”: Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), paragraph 159(1)(h). The key paragraphs of Guideline 7 provide as follows: “In a claim for refugee protection, the standard practice will be for the R[efugee] P[rotection] O[fficer] to start questioning the claimant” (para. 19), although the member of the Refugee Protection Division (“RPD”) hearing the claim “may vary the order of questioning in exceptional circumstances” (para. 23).\n\nThe validity of Guideline 7 is challenged on two principal grounds. First, it deprives refugee claimants of the right to a fair hearing by denying them the opportunity to be questioned first by their own counsel. Second, even if Guideline 7 does not prescribe a hearing that is in breach of the duty of fairness, the Chairperson should have introduced the new standard order of questioning as a rule of procedure under IRPA, paragraph 161(1)(a), not as a guideline under IRPA, paragraph 159(1)(h). Guideline 7 is not valid as a guideline because paragraphs 19 and 23 unlawfully fetter the discretion of members of the RPD to determine the appropriate order of questioning when hearing refugee protection claims.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-2", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 4–6", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal by the Minister of Citizenship and Immigration from a decision by Justice Blanchard of the Federal Court granting an application for judicial review by Daniel Thamotharem to set aside a decision by the RPD dismissing his claim for refugee protection: Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] 3 F.C.R. 168.\n\nJustice Blanchard held that Guideline 7 is an unlawful fetter on the exercise of discretion by individual RPD members to determine the order of questioning at a hearing, in the absence of a provision in either IRPA or the Refugee Protection Division Rules, SOR/2002-228, dealing with this aspect of refugee protection hearings. He remitted Mr Thamotharem’s refugee claim to be determined by a different member of the RPD on the basis that Guideline 7 is an invalid fetter on the exercise of decision-makers’ discretion.\n\nHowever, Justice Blanchard rejected Mr Thamotharem’s argument that Guideline 7 is invalid because it deprives refugee claimants of the right to a fair hearing, and distorts the “judicial” role of the member hearing the claim. Mr Thamotharem has cross-appealed this finding.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-3", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 7–9", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Judge certified the following questions for appeal pursuant to paragraph 74(d) of IRPA. 1. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice by unduly interfering with claimants’ right to be heard? 2. Has the implementation of Guideline 7 led to fettering of Board Members’ discretion? 3. Does a finding that Guideline 7 fetters a Refugee Protection Division Member’s discretion necessarily mean that the application for judicial review must be granted, without regard to whether or not the applicant was otherwise afforded procedural fairness in the particular case or whether there was an alternate basis for rejecting the claim?\n\nImmediately after hearing the Minister’s appeal in Thamotharem, we heard appeals by unsuccessful refugee claimants challenging the validity of Guideline 7 and, in some of the cases, impugning on other grounds the dismissal of their claim. In the Federal Court, 19 applications for judicial review concerning Guideline 7 were consolidated. Justice Mosley’s decision on the Guideline 7 issue is reported as Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2007] 1 F.C.R. 107. The appeals from these decisions were also consolidated, Benitez being designated the lead case.\n\nIn Benitez, Justice Mosley agreed with the conclusions of Justice Blanchard on all issues, except one: he held that Guideline 7 was not an unlawful fetter on the discretion of Board members because its text permitted them to allow the claimant’s counsel to question first, as, in fact, some had.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-4", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 10–12", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "For substantially the reasons that they gave, I agree with both Justices that Guideline 7 is not, on its face, invalid on the ground of procedural unfairness, although, as the Minister and the Board conceded, fairness may require that, in certain circumstances, particular claimants should be questioned first by their own counsel. I also agree that Guideline 7 is not incompatible with the impartiality required of a member when conducting a hearing which is inquisitorial in form.\n\nHowever, in my opinion, Guideline 7 is not an unlawful fetter on the exercise of members’ discretion on the conduct of refugee protection hearings. The Guideline expressly directs members to consider the facts of the particular case before them to determine whether there are exceptional circumstances warranting a deviation from the standard order of questioning. The evidence does not establish that members disregard this aspect of Guideline 7 and slavishly adhere to the standard order of questioning, regardless of the facts of the case before them. Accordingly, I agree with Justice Mosley on this issue, and must respectfully disagree with Justice Blanchard.\n\nNor does it follow from the fact that Guideline 7 could have been issued as a statutory rule of procedure that it is invalid because it was not approved by the Governor in Council. In my opinion, the Chairperson’s rule-making power does not invalidate Guideline 7 by impliedly excluding from the broad statutory power to issue guidelines “to assist members in carrying out their duties” changes to the procedure of any of the Board’s Divisions.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-5", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 13–16", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Accordingly, I would allow the Minister’s appeal, and dismiss Mr Thamotharem’s cross- appeal and his application for judicial review. Although separate reasons are given in Benitez (2007 FCA 199) dealing with issues not raised in Mr Thamotharem’s appeal, a copy of the reasons in the present appeal will also be inserted in Court File No. A-164-06 (Benitez) and the files of the appeals consolidated with it. B. FACTUAL BACKGROUND (i) Mr Thamotharem’s refugee claim\n\nMr Thamotharem is Tamil and a citizen of Sri Lanka. He entered Canada in September 2002 on a student visa. In January 2004, he made a claim for refugee protection in Canada, since he feared that, if forced to return to Sri Lanka, he would be persecuted by the Liberation Tigers of Tamil Eelam.\n\nIn written submissions to the RPD before his hearing, Mr Thamotharem objected to the application of Guideline 7, on the ground that it deprives refugee claimants of their right to a fair hearing. He did not argue that, on the facts of his case, he would be denied a fair hearing if he were questioned first by the Refugee Protection Officer (“RPO”) and/or the member conducting the hearing. There was no evidence that Mr Thamotharem suffered from post-trauma stress disorder, or was otherwise particularly vulnerable.\n\nAt the hearing of the claim before the RPD, the RPO questioned Mr Thamotharem first. The RPD held that the duty of fairness does not require that refugee claimants always have the right to be questioned first by their counsel and that the application of Guideline 7 does not breach Mr Thamotharem’s right to procedural fairness.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-6", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 17–18", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "In a decision dated August 20, 2004, the RPD dismissed Mr Thamotharem’s refugee claim and found him not to be a person in need of protection. It based its decision on documentary evidence of improved country conditions for Tamils in Sri Lanka, and on the absence of reliable evidence that Mr Thamotharem would be persecuted as a perceived member of a political group or would, for the first time, become the target of extortion.\n\nIn his application for judicial review, Mr Thamotharem challenged this decision on the ground that Guideline 7 was invalid, and that the RPD had made a reviewable error in its determination of the merits of his claim. As already noted, Mr Thamotharem’s application for judicial review was granted, the RPD’s decision set aside and the matter remitted to another member for re-determination on the basis that Guideline 7 is an invalid fetter on the RPD’s discretion in the conduct of the hearing. In responding in this Court to the Minister’s appeal, Mr. Thamotharem did not argue that, even if Guideline 7 is valid, Justice Blanchard was correct to remit the matter to the RPD because it committed a reviewable error in determining the merits of the claim. (ii) Guideline 7", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-7", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 19–20", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Before the Chairperson issued Guideline 7, the order of questioning was within the discretion of individual members; neither IRPA, nor the Refugee Protection Division Rules, addressed it. Refugee protection claims are normally determined by a single member of the RPD. The evidence indicated that, before the issue of Guideline 7, practice on the order of questioning was not uniform across Canada. Members sitting in Toronto and, possibly, in Vancouver and Calgary, permitted claimants to be “examined in chief” by their counsel before being questioned by the RPO and/or the member. In Montreal and Ottawa, on the other hand, the practice seems to have been that the member or the RPO questioned the claimant first, although a request by counsel for a claimant to question first seems generally to have been granted.\n\nIt is not surprising that the Board did not regard it as satisfactory that the order of questioning was left to be decided by individual members on an ad hoc basis, with variations among regions, and among members within a region. Claimants are entitled to expect essentially the same procedure to be followed at an RPD hearing, regardless of where or by whom the hearing is conducted.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-8", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 21", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "There was also a view that refugee protection hearings would be more expeditious if claimants were generally questioned first by the RPO or the member, thus dispensing with the often lengthy and unfocussed examination-in-chief of claimants by their counsel. The backlog of refugee determinations has been a major problem for the Board. For example, from 1997-98 to 2001-02 the number of claims referred for determination each year increased steadily from more than 23,000 to over 45,000, while, in the same period, the backlog of claims referred but not decided grew from more than 27,000 to nearly 49,000: Canada, Immigration and Refugee Board, Performance Report, for the period ending March 31, 2004.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-9", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 22", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Studies were undertaken to find ways of tackling this problem. For example, in a relatively early report, Rebuilding Trust: Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada (Ottawa: Immigration and Refugee Board, 1993), refugee law scholar, Professor James C. Hathaway, made many recommendations designed to make the Board’s determination of refugee claims more effective, expeditious, and efficient. The following passage from the Report (at 74) is particularly relevant to the present appeal. The present practice of an introductory “examination in chief” by counsel should be dispensed with, the sworn testimony in the Application for Refugee Status being presumed to be true unless explicitly put in issue. Panel members should initially set out clearly the substantive matters into which they wish to inquire, and explain any concerns they may have about the sufficiency of documentary evidence presented. Members should assume primary responsibility to formulate the necessary questions, although they should feel free to invite counsel to adduce testimony in regard to matters of concern to them. Once the panel has concluded its questioning, it should allow the Minister’s representative, if present, an opportunity to question or call evidence, ensuring that the tenor of the Ministerial intervention is not allowed to detract from the non-adversarial nature of the hearing. Following a brief recess, the panel should outline clearly on the record which matters it views as still in issue, generally using the Conference Report as its guide. Any matters not stated by the panel to be topics of continuing concern should be deemed to be no longer in issue.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-10", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 22–25", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Counsel would then be invited to elicit testimony, call witnesses, and make submissions as adjudged appropriate, keeping in mind that all additional evidence must be directed to a matter which remains in issue. [footnotes omitted]\n\nStarting in 1999, the Board worked to develop what became Guideline 7, which was finally issued in October 31, 2003, as part of an action plan to reduce the backlog on the refugee side by increasing the efficiency of its decision-making process. In addition to the order of questioning provisions in dispute in this case, Guideline 7 also deals with the early identification of issues and disclosure of documents, procedures when a claimant is late or fails to appear, informal pre-hearing conferences, and the administration of oaths and affirmations.\n\nIn addition to the consultations with the Deputy Chairperson and the Director General of the Immigration Division mandated by paragraph 159(1)(h) before the Chairperson issues a guideline, the Board held consultations on the proposed Guideline with members of the Bar and other “stakeholders”. Some, however, including the Canadian Council for Refugees, an intervener in this appeal, regarded the consultations as less than meaningful, while others characterized Guideline 7 as an overly “top-down” initiative by senior management of the Board. On the basis of the material before us, I am unable to comment on either of these observations.\n\nFrom December 1, 2003, the implementation of Guideline 7 was gradually phased in, becoming fully operational across the country by June 1, 2004. Like other guidelines issued by the Chairperson, Guideline 7 was published. C. LEGISLATIVE FRAMEWORK (i) IRPA", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-11", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 26", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "IRPA confers on the Chairperson of the Board broad powers over the management of each Division of the Board, including a power to issue guidelines. 159. (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson (a) has supervision over and direction of the work and staff of the Board; … (g) takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay; (h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties; … 159. (1) Le président est le premier dirigeant de la Commission ainsi que membre d’office des quatre sections; à ce titre : a) il assure la direction et contrôle la gestion des activités et du personnel de la Commission; […] g) il prend les mesures nécessaires pour que les commissaires remplissent leurs fonctions avec diligence et efficacité; h) après consultation des vice-présidents et du directeur général de la Section de l’immigration et en vue d’aider les commissaires dans l’exécution de leurs fonctions, il donne des directives écrites aux commissaires et précise les décisions de la Commission qui serviront de guide jurisprudentiel; […]", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-12", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 27", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "IRPA also empowers the Chairperson of the Board to make rules for each of the three Divisions of Board. The rules, however, must be approved by the Governor in Council, and laid before Parliament. 161. (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, the Chairperson may make rules respecting (a) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, the priority to be given to proceedings, the notice that is required and the period in which notice must be given; (b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules; (c) the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board; and (d) any other matter considered by the Chairperson to require rules. (2) The Minister shall cause a copy of any rule made under subsection (1) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the approval of the rule by the Governor in Council. 161.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-13", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 27–28", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) Sous réserve de l’agrément du gouverneur en conseil et en consultation avec les vice-présidents et le directeur général de la Section de l’immigration, le président peut prendre des règles visant : a) les travaux, la procédure et la pratique des sections, et notamment les délais pour interjeter appel de leurs décisions, l’ordre de priorité pour l’étude des affaires et les préavis à donner, ainsi que les délais afférents; b) la conduite des personnes dans les affaires devant la Commission, ainsi que les conséquences et sanctions applicables aux manquements aux règles de conduite; c) la teneur, la forme, le délai de présentation et les modalités d’examen des renseignements à fournir dans le cadre d’une affaire dont la Commission est saisie; d) toute autre mesure nécessitant, selon lui, la prise de règles. (2) Le ministre fait déposer le texte des règles devant chacune des chambres du Parlement dans les quinze premiers jours de séance de celle-ci suivant leur agrément par le gouverneur en conseil.\n\nIRPA emphasises the importance of informality, promptness and fairness in the Board’s proceedings. 162. (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. 162. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-14", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 29", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "In keeping with the inquisitorial nature of the RPD’s process, IRPA confers broad discretion on members in their conduct of a hearing. 165. The Refugee Protection Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing. 165. La Section de la protection des réfugiés et la Section de l’immigration et chacun de ses commissaires sont investis des pouvoirs d’un commissaire nommé aux termes de la partie I de la Loi sur les enquêtes et peuvent prendre les mesures que ceux-ci jugent utiles à la procédure.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-15", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 30", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Part I of the Inquiries Act, R.S.C. 1985, c. I-11, empowers commissioners of inquiry as follows: 4. The commissioners have the power of summoning before them any witnesses, and of requiring them to (a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and (b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine. 5. The commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases. 4. Les commissaires ont le pouvoir d’assigner devant eux des témoins et de leur enjoindre de : a) déposer oralement ou par écrit sous la foi du serment, ou d’une affirmation solennelle si ceux-ci en ont le droit en matière civile; b) produire les documents et autres pièces qu’ils jugent nécessaires en vue de procéder d’une manière approfondie à l’enquête dont ils sont chargés. 5. Les commissaires ont, pour contraindre les témoins à comparaître et à déposer, les pouvoirs d’une cour d’archives en matière civile.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-16", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 31", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "The following provisions of IRPA respecting the decision-making process of the RPD are also relevant. 170. The Refugee Protection Division, in any proceeding before it, (a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded; … (g) is not bound by any legal or technical rules of evidence; (h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; … 170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés : a) procède à tous les actes qu’elle juge utiles à la manifestation du bien-fondé de la demande; […] g) n’est pas liée par les règles légales ou techniques de présentation de la preuve; h) peut recevoir les éléments qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision; […] (ii) Guideline 7", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-17", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 32", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Paragraphs 19 and 23 of Guideline 7, issued by the Chairperson under IRPA, paragraph 159(1)(h), are of immediate relevance in this appeal, while paragraphs 20-22 provide context. 19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case. 20. In a claim for refugee protection where the Minister intervenes on an issue other than exclusion, for example, on a credibility issue, the RPO starts the questioning. If there is no RPO at the hearing, the member will start the questioning, followed by the Minister's counsel and then counsel for the claimant. 21. In proceedings where the Minister intervenes on the issue of exclusion, Minister's counsel will start the questioning, followed by the RPO, the member, and counsel for the claimant. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants. 22. In proceedings where the Minister is making an application to vacate or to cease refugee protection, Minister's counsel will start the questioning, followed by the member, and counsel for the protected person. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants. 23. The member may vary the order of questioning in exceptional circumstances.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-18", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 32", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules. 19. Dans toute demande d'asile, c'est généralement l'APR qui commence à interroger le demandeur d'asile. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet ainsi au demandeur d'asile de connaître rapidement les éléments de preuve qu'il doit présenter au commissaire pour établir le bien-fondé de son cas. 20. Dans les demandes d'asile où l'intervention du ministre porte sur une question autre que l'exclusion, la crédibilité par exemple, l'APR commence l'interrogatoire. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire; viennent ensuite le conseil du ministre puis le conseil du demandeur d'asile. 21. Dans les demandes où l'intervention du ministre porte sur la question de l'exclusion, le conseil du ministre interroge d'abord le demandeur d'asile; il est suivi de l'APR, du commissaire, puis du conseil du demandeur d'asile. Le commissaire donne au conseil du ministre la possibilité de ré-interroger le témoin à la fin de l'audience s'il est convaincu que les interrogatoires par les autres participants ont soulevé de nouvelles questions. 22.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-19", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 32–33", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Dans les demandes d’annulation ou de constat de perte d’asile présentées par le ministre, le conseil du ministre commence l’interrogatoire; il est suivi du commissaire, puis du conseil de la personne protégée. Le commissaire donne au conseil du ministre la possibilité de ré-interroger le témoin à la fin de l’audience s’il est convaincu que les interrogatoires par les autres participants ont soulevé de nouvelles questions. 23. Le commissaire peut changer l'ordre des interrogatoires dans des circonstances exceptionnelles. Par exemple, la présence d'un examinateur inconnu peut intimider un demandeur d'asile très perturbé ou un très jeune enfant au point qu'il n'est pas en mesure de comprendre les questions ni d'y répondre convenablement. Dans de telles circonstances, le commissaire peut décider de permettre au conseil du demandeur de commencer l'interrogatoire. La partie qui estime que de telles circonstances exceptionnelles existent doit soumettre une demande en vue de changer l'ordre des interrogatoires avant l'audience. La demande est faite conformément aux Règles de la SPR. D. ISSUES AND ANALYSIS Issue 1: Standard of review\n\nThe questions of law raised in this appeal about the validity of Guideline 7 are reviewable on a standard of correctness: they concern procedural fairness, statutory interpretation, and the unlawful fettering of discretion. The exercise of discretion by the Chairperson to choose a guideline rather than a formal rule as the legal instrument for amending the procedure of any of the Board’s Divisions by is reviewable for patent unreasonableness. Issue 2: Does Guideline 7 prescribe a hearing procedure that is in breach of claimants’ right to procedural fairness?", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-20", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 34–35", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Justice Blanchard dealt thoroughly with this issue at paras. 36-92 of his reasons. He concluded that the jurisprudence did not require that, as a matter of fairness, claimants always be given the opportunity to be questioned first by their counsel (at paras. 38-53). He then considered (at paras. 68-90) the criteria set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 21-28 (“Baker”), for determining where to locate refugee protection hearings on the procedural spectrum from the informal to the judicial. Largely on the basis of the adjudicative nature of the RPD’s functions, the finality of its decision, and the importance of the individual rights at stake, he concluded (at para. 75) that “a higher level of procedural protection is warranted”.\n\nHowever, recognizing also that the content of the duty of fairness varies with context, Justice Blanchard noted that Parliament had chosen an inquisitorial procedural model for the determination of refugee claims by the RPD, in the sense that there is no party opposing the claim, except in the rare cases when the Minister intervenes to oppose a claim on exclusion grounds. Consequently, in the overwhelming majority of cases, the task of probing the legitimacy of claims inevitably falls to the RPO, who questions the claimant on behalf of the member, and/or to the member of the RPD conducting the hearing, especially when no RPO is present. This is an important reason for concluding that not all the elements of the adversarial procedural model followed in the courts are necessarily required for a fair hearing of a refugee claim: see paras. 72-75.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-21", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 36–37", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Justice Blanchard also acknowledged that claimants may derive tactical advantages from being taken through their story by their own lawyer before being subjected to questioning by the RPO, who will typically focus on inconsistencies, gaps, and improbabilities in the narrative found in the claimant’s personal information form (“PIF”) and any supporting documentation, as well as any legal weaknesses in the claim. The tactical advantage of questioning first may be particularly significant in refugee hearings because of the vulnerability and anxiety of many claimants, as a result of: their inability to communicate except through an interpreter; their cultural backgrounds; the importance for them of the RPD’s ultimate decision; and the psychological effects of the harrowing events experienced in their country of origin.\n\nNonetheless, Justice Blanchard concluded that these considerations do not necessarily rise to the level of unfairness. Indeed, in addition to shortening the hearing, questioning by the RPO may also serve to improve the quality of the hearing by focusing it and enabling a claimant’s counsel to make sure that aspects of the claim troubling the member are fully dealt with when the claimant comes to tell his or her story. Consequently, in order to be afforded their right to procedural fairness, claimants need not normally be given the opportunity to be questioned by their counsel before being questioned by the RPO and/or RPD member.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-22", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 38–39", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Justice Blanchard noted, for example, that RPD members receive training to sensitize them to the accommodations needed when questioning vulnerable claimants, that claimants may supplement or modify the information in their PIF and adduce evidence before the hearing, and that expert evidence indicated that vulnerable claimants’ ability to answer questions fully, correctly and clearly is likely to depend more on the tone and style of questioning than on the order in which it occurs.\n\nMoreover, the duty of fairness forbids members from questioning in an overly aggressive and badgering manner, or in a way that otherwise gives rise to a reasonable apprehension of bias. Fairness also requires that claimants be given an adequate opportunity to tell their story in full, to adduce evidence in support of their claim, and to make submissions relevant to it. To this end, fairness may also require that, in certain circumstances, a claimant be afforded the right to be questioned first by her or his counsel. In addition, Guideline 7 recognizes that there will be exceptional cases in which, even though not necessarily required by the duty of fairness, it will be appropriate for the RPD to depart from the standard order of questioning.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-23", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 40–42", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "I agree with Justice Blanchard’s conclusion on this issue and have little useful to add to his reasons. Before us, counsel did not identify any error of principle in the Applications Judge’s analysis nor produce any binding judicial authority for the proposition that it is a breach of the duty of fairness to deny claimants the right to be questioned first by their own counsel. Criticisms were directed more to the weight that Justice Blanchard gave to some of the evidence and the factors to be considered. I can summarize as follows the principal points made in this Court by counsel.\n\nFirst, the importance of the individual rights potentially at stake in refugee protection proceedings indicates a court-like hearing, in which the party with the burden of proof goes first: see, for example, Can-Am Realty Ltd. v. Canada (1993), 69 F.T.R. 63 at 63-64. I agree at a general level that the seriousness of the rights involved in the determination of a refugee claim, as well as the generally “judicial” character of the oral hearings held by the RPD, militate in favour of affording claimants a high degree of procedural protection. However, its details must also be tailored to fit the inquisitorial and relatively informal nature of the hearing established by Parliament, as well as the RPD’s high volume case load, considerations which reduce the power of the claim to aspects of the adversarial model used in courts, including the order of questioning.\n\nSecond, the procedure set out in Guideline 7 is derived from the erroneous notion that the RPD is a board of inquiry, not an adjudicator. Unlike those appearing at inquiries, refugee claimants have the burden of proving a claim, which the RPD adjudicates.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-24", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 43–44", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "I do not agree. The Board correctly recognizes that the RPD’s procedural model is more inquisitorial in nature, unlike that of the Immigration Appeal Division (Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at para. 82). I cannot conclude on the basis of the evidence as a whole that the Board adopted the standard order of questioning in the mistaken view that the RPD is a board of inquiry, even though it decides claimants’ legal rights in the cases which they bring to it for adjudication and claimants bear the burden of proof. This conclusion is not undermined by a training document (“Questioning 101”), prepared by the Board’s Professional Development Branch in 2004 for members and RPOs, which contains a somewhat misleading reference to the compatibility of the standard order of questioning with “a board of inquiry model”.\n\nA relatively inquisitorial procedural form may reduce the degree of control over the process often exercisable by counsel in adversarial proceedings, especially before inexperienced tribunal members or those who lack the confidence that legal training can give. Nonetheless, the fair adjudication of individual rights is perfectly compatible with an inquisitorial process, where the order of questioning is not as obvious as it generally is in an adversarial hearing.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-25", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 45–47", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Third, placing RPD members in the position of asking the claimant questions first, when no RPD is present, distorts their judicial role by thrusting them into the fray, thereby creating a reasonable apprehension of bias by making them appear to be acting as both judge and prosecutor. Guideline 7 is particularly burdensome for members now that panels normally comprise a single member, and there is often no RPO present to assume the primary responsibility for questioning the claimant on behalf of the Board.\n\nI disagree. Adjudicators can and should normally play a relatively passive role in an adversarial process, because the parties are largely responsible for adducing the evidence and arguments on which the adjudicator must decide the dispute. In contrast, members of the RPD, sometimes assisted by an RPO, do not have this luxury. In the absence in most cases of a party to oppose the claim, members are responsible for making the inquiries necessary, including questioning the claimant, to determine the validity of the claim: see IRPA, paragraph 170(a); Sivisamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.) at 757-78; Shahib v. Canada (Minister of Citizenship and Immigration), 2005 FC 1250 at para. 21. The fact that the member or the RPO may ask probing questions does not make the proceeding adversarial in the procedural sense.\n\nTo the extent that statements in Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.), suggest that a member of the RPD hearing a refugee claim is restricted to asking the kind of questions that a judge in a civil or criminal proceeding may ask, they are, in my respectful opinion, incorrect, especially when no RPO is present.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-26", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 48–50", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "The fact that members question the claimant first when there is no RPO present does not distort the inquisitorial process established by IRPA and would not give rise to a reasonable apprehension of bias on the part of a person who was informed of the facts and had thought the matter through in a practical manner. Inquisitorial processes of adjudication are not unfair simply because they are relatively unfamiliar to common lawyers.\n\nFourth, Guideline 7 interferes with claimants’ right to the assistance of counsel because it prevents them from being taken through their story by their counsel before being subject to the typically more sceptical questioning by the RPO. I do not agree. Guideline 7 does not curtail counsel’s participation in the hearing; counsel is present throughout and may conduct an examination of the client to ensure that the claimant’s testimony is before the decision-maker. The right to be represented by counsel does not include the right of counsel to determine the order of questioning or, for that matter, any other aspect of the procedure to be followed at the hearing.\n\nFinally, no statistical evidence was adduced to support the allegation that Guideline 7 jeopardizes the ability of the RPD accurately to determine claims for refugee protection. There is simply no evidence to establish what impact, if any, the introduction of Guideline 7 has had on acceptance rates.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-27", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 51–53", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "In summary, the procedure prescribed by Guideline 7 is not, on its face, in breach of the Board’s duty of fairness. However, in some circumstances, fairness may require a departure from the standard order of questioning. In those circumstances, a member’s refusal of a request that the claimant be questioned first by her counsel may render the determination of the claim invalid for breach of the duty of fairness.\n\nConsequently, if the Chairperson had implemented the reform to the standard order of questioning at refugee determination hearings in a formal rule of procedure issued in accordance with paragraph 161(1)(a), it would have been beyond challenge on the grounds advanced in this appeal respecting the duty of fairness, including bias. The somewhat technical question remaining is whether the Chairperson’s choice of legislative instrument (that is, a guideline rather than a formal rule of procedure) to implement the procedural change was in law open to him. Issue 3: Is Guideline 7 unauthorized by paragraph 159(1)(h) because it is a fetter on RPD members’ exercise of discretion in the conduct of hearings?\n\nAs already noted, Justice Blanchard and, in Benitez, Justice Mosley, reached different conclusions on whether Guideline 7 unlawfully fettered the discretion of members of the RPD in deciding the order of questioning at a refugee determination hearing. The records in the two applications were not identical. In particular, there was more evidence before Justice Mosley, comprising some forty decisions and excerpts from transcripts of RPD hearings, that RPD members are willing to recognize exceptional cases in which it is appropriate to depart from the standard order of questioning.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-28", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 54–55", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "In the circumstances of these appeals, it is appropriate to consider all the evidence before both judges. From a practical point of view, it would be anomalous if this Court were to reach different conclusions about the validity of Guideline 7 in two cases set down to be heard one after the other. However, I do not attach much, if any, significance to the differences in the records. Justice Blanchard properly based his conclusion, for the most part, on what he saw as the mandatory language of Guideline 7. (i) Rules, discretion and fettering\n\nEffective decision-making by administrative agencies often involves striking a balance between general rules and the exercise of ad hoc discretion or, to put it another way, between the benefits of certainty and consistency on the one hand, and of flexibility and fact-specific solutions on the other. Legislative instruments (including such non-legally binding “soft law” documents as policy statements, guidelines, manuals, and handbooks) can assist members of the public to predict how an agency is likely to exercise its statutory discretion and to arrange their affairs accordingly, and enable an agency to deal with a problem comprehensively and proactively, rather than incrementally and reactively on a case by case basis.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-29", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 56–57", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Though the use of “soft law” an agency can communicate prospectively its thinking on an issue to agency members and staff, as well as to the public at large and to the agency’s “stakeholders” in particular. Because “soft law” instruments may be put in place relatively easily and adjusted in the light of day-to-day experience, they may be preferable to formal rules requiring external approval and, possibly, drafting appropriate for legislation. Indeed, an administrative agency does not require an express grant of statutory authority in order to issue guidelines and policies to structure the exercise of its discretion or the interpretation of its enabling legislation: Ainsley Financial Corp. v. Ontario (Securities Commission) (1994), 121 D.L.R. (4th) 79 (Ont. C.A.) at 83 (“Ainsley”).\n\nBoth academic commentators and the courts have emphasized the importance of these tools for good public administration, and have explored their legal significance. See, for example, Hudson N. Janisch, “The Choice of Decision-Making Method: Adjudication, Policies and Rule-Making” in Special Lectures of the Law Society of Upper Canada 1992, Administrative Law: Principles, Practice and Pluralism; David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at 374-79; P.P. Craig, Administrative Law, 5th edn. (London: Thomson, 2003) at 398-405, 536-40; Capital Cities Communications Inc. v. CRTC, [1978] 2 S.C.R. 141 at 171; Vidal v. Canada (Minister of Employment and Immigration) (1991), 49 Admin. L.R. 118 (F.C.T.D.) at 131; Ainsley at 82-83.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-30", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 58–60", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Legal rules and discretion do not inhabit different universes, but are arrayed along a continuum. In our system of law and government, the exercise of even the broadest grant of statutory discretion which may adversely affect individuals is never absolute and beyond legal control: Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140. (per Rand J.). Conversely, few, if any, legal rules admit of no element of discretion in their interpretation and application: Baker at para. 54.\n\nAlthough not legally binding on a decision-maker in the sense that it may be be an error of law to misinterpret or misapply them, guidelines may validly influence a decision-maker’s conduct. Indeed, in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, McIntyre J., writing for the Court, said (at 6): The fact that the Minister in his policy guidelines issued in the Notice to Importers employed the words: “If Canadian product is not offered at the market price, a permit will normally be issued; …” does not fetter the exercise of that discretion. [Emphasis added] The line between law and guideline was further blurred by Baker at para. 72, where, writing for a majority of the Court, L’Heureux-Dubé J. said that the fact that administrative action is contrary to a guideline “is of great help” in assessing whether it is unreasonable.\n\nThe use of guidelines, and other “soft law” techniques, to achieve an acceptable level of consistency in administrative decisions is particularly important for tribunals exercising discretion, whether on procedural, evidential or substantive issues, in the performance of adjudicative functions. This is especially true for large tribunals, such as the Board, which sit in panels; in the case of the RPD, as already noted, a panel typically comprises a single member.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-31", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 61–62", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is fundamental to the idea of justice that adjudicators, whether in administrative tribunals or courts, strive to ensure that similar cases receive the same treatment. This point was made eloquently by Gonthier J. when writing for the majority in Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69, [1990] 1 S.C.R. 282 at 327 (“Consolidated-Bathurst”): It is obvious that coherence in administrative decision-making must be fostered. The outcome of disputes should not depend on the identity of the persons sitting on the panel for this result would be “difficult to reconcile with the notion of equality before the law, which is one of the main corollaries of the rule of law, and perhaps also the most intelligible one”. [Citation omitted]\n\nNonetheless, while agencies may issue guidelines or policy statements to structure the exercise of statutory discretion in order to enhance consistency, administrative decision-makers may not apply them as if they were law. Thus, a decision made solely by reference to the mandatory prescription of a guideline, despite a request to deviate from it in the light of the particular facts, may be set aside, on the ground that the decision-maker’s exercise of discretion was unlawfully fettered: see, for example, Maple Lodge Farms at 7. This level of compliance may only be achieved through the exercise of a statutory power to make “hard” law, through, for example, regulations or statutory rules made in accordance with statutorily prescribed procedure.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-32", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 63–64", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "In addition, the validity of a rule or policy itself has sometimes been impugned independently of its application in the making of a particular decision. Ainsley is the best known example. That case concerned a challenge to the validity of a non-statutory policy statement issued by the Ontario Securities Commission setting out business practices which would satisfy the public interest in the marketing of penny stocks by certain securities dealers. The policy also stated that the Commission would not necessarily impose a sanction for non-compliance on a dealer under its “public interest” jurisdiction, but would consider the particular circumstances of each case.\n\nWriting for the Court in Ainsley, Doherty J.A. adopted the criteria formulated by the trial judge for determining if the policy statement was “a mere guideline” or was “mandatory”, namely, its language, the practical effect of non-compliance, and the expectations of the agency and its staff regarding its implementation. On the basis of these criteria, Doherty J.A. concluded that the policy statement was invalid. He emphasized, in particular, its minute detail, which “reads like a statute or regulation” (at 85), and the threat of sanctions for non-compliance. He found this threat to be implicit in the Commission’s pronouncement that the business practices it described complied with the public interest, and was evident in the attitude of enforcement staff ,who treated the policy as if it were a statute or regulation, breach of which was liable to trigger enforcement proceedings. (ii) Guideline 7 and the fettering of discretion (a) Is Guideline 7 delegated legislation?", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-33", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 65–67", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "An initial question is whether guidelines issued under IRPA, paragraph 159(1)(h) constitute delegated legislation, having the full force of law (“hard law”). If they do, Guideline 7 can no more be characterized as an unlawful fetter on members’ exercise of discretion with respect to the order of questioning than could a rule of procedure to the same effect issued under IRPA, paragraph 161(1))(a): Bell Canada v. Canadian Telephone Association Employees, 2003 SCC 36, [2003] 1 S.C.R. 884 at para 35 (“Bell Canada”).\n\nIn my view, despite the express statutory authority of the Chairperson to issue guidelines, they do not have the same legal effects that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate, regardless of the facts of the particular case before them. The word “guideline” itself normally suggests some operating principle or general norm, which does not necessarily determine the result of every dispute.\n\nHowever, the meaning of “guideline” in a statute may depend on context. For example, in Society of the Friends of Oldman River v. Canada (Minister of the Environment), [1992] 1 S.C.R. 3 at 33-37, La Forest J. upheld the validity of mandatory environmental assessment guidelines issued under section 6 of the Department of the Environment Act, R.S.C. 1985, c. E-10, which, he held, constituted delegated legislation and, as such, were legally binding.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-34", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 68–70", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, Oldman River is distinguishable from the case before us. Section 6 of the Department of the Environment Act provided that guidelines were to be issued by an “order” (“arrêté”) of the Minister and approved by the Cabinet. In contrast, only rules issued by the Chairperson require Cabinet approval, guidelines (“directives”) do not. It would make little sense for IRPA to have conferred powers on the Chairperson to issue two types of legislative instrument, guidelines and rules, specified that rules must have Cabinet approval, and yet given both the same legal effect.\n\nGuidelines issued by the Human Rights Commission pursuant to subsection 27(2) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, have also been treated as capable of having the full force of law, even though they are made by an independent administrative agency and are not subject to Cabinet approval: Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (T.D.) at paras. 136-41; Bell Canada at paras. 35-38.\n\nIn Bell Canada, LeBel J. held (at para. 37), “on a functional and purposive approach to the nature” of the Commission’s guidelines, that they were “akin to regulations”, a conclusion supported by the use of the word “ordonnance” in the French text of subsection 27(2) of the Canadian Human Rights Act. In addition, subsection 27(3) expressly provides that guidelines issued under subsection 27(2) are binding on the Commission and on the person or panel assigned to inquire into a complaint of discrimination referred by the Commission under subsection 49(2) of the Act.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-35", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 71–74", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my opinion, the scheme of IRPA is different, particularly the inclusion of a potentially overlapping rule-making power and the absence of a provision that guidelines are binding on adjudicators. In addition, the word “directives” in the French text of paragraph 159(1)(h) suggests a less legally authoritative instrument than “ordonnance”.\n\nI conclude, therefore, that, even though issued under an express statutory grant of power, guidelines issued under IRPA, paragraph 159(1)(h) cannot have the same legally binding effect on members as statutory rules may. (b) Is Guideline 7 an unlawful fetter on members’ discretion?\n\nSince guidelines issued by the Chairperson of the Board do not have the full force of law, the next question is whether, in its language and effect, Guideline 7 unduly fetters RPD members’ discretion to determine for themselves, case-by-case, the order of questioning at refugee protection hearings. In my opinion, language is likely to be a more important factor than effect in determining whether Guideline 7 constitutes an unlawful fetter. It is inherently difficult to predict how decision-makers will apply a guideline, especially in an agency, like the Board, with a large membership sitting in panels.\n\nConsequently, since the language of Guideline 7 expressly permits members to depart from the standard order of questioning in exceptional circumstances, the Court should be slow to conclude that members will regard themselves as bound to follow the standard order, in the absence of clear evidence to the contrary, such as that members have routinely refused to consider whether the facts of particular cases require an exception to be made.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-36", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 75–77", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "I turn first to language. The Board’s Policy on the Use of Chairperson’s Guidelines, issued in 2003, states that guidelines are not legally binding on members: section 6. The introduction to Guideline 7 states: “The guidelines apply to most cases heard by the RPD. However, in compelling or exceptional circumstances, the members will use their discretion not to apply some guidelines or to apply them less strictly”\n\nThe text of the provisions of Guideline 7 of most immediate relevance to this appeal. Paragraph 19 states that it “will be” standard practice for the RPO to question the claimant first; this is less obligatory than “must” or some similarly mandatory language. The discretionary element of Guideline 7 is emphasized in paragraph 19, which provides that, while “the standard practice will be for the RPO to start questioning the claimant” (emphasis added), a member may vary the order “in exceptional circumstances”.\n\nClaimants who believe that exceptional circumstances exist in their case must apply to the RPD, before the start of the hearing, for a change in the order of questioning. The examples, and they are only examples, of exceptional circumstances given in paragraph 23 suggest that only the most unusual cases will warrant a variation. However, the parameters of “exceptional circumstances” will no doubt be made more precise, and likely expanded incrementally, on a case-by-case basis.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-37", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 78–79", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "I agree with Justice Blanchard’s conclusion (at para. 119) that the language of Guideline 7 is more than “a recommended but optional process”. However, as Maple Lodge Farms makes clear, the fact that a guideline is intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibility that the decision-maker may deviate from normal practice in the light of particular facts: see Ha v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195.\n\nTo turn to the effect of Guideline 7, there was evidence that, when requested by counsel, members of the RPD had exercised their discretion and varied the standard order of questioning in cases which they regarded as exceptional. No such request was made on behalf of Mr Thamotharem. In any event, members must permit a claimant to be questioned first by her or his counsel when the duty of fairness so requires.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-38", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 80–82", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "In at least one case, however, a member wrongly regarded himself as having no discretion to vary the standard order of questioning prescribed in Guideline 7. On July 3, 2005, this decision was set aside on consent on an application for judicial review, on the ground that the member had fettered the exercise of his discretion, and the matter remitted for re-determination by a different member of the RPD: Baskaran v. Canada (Minister of Citizenship and Immigration) (Court File No. IMM-7189-04). Nonetheless, the fact that some members may erroneously believe that Guideline 7 removes their discretion to depart from the standard practice in exceptional circumstances does not warrant invalidating the Guideline. In such cases, the appropriate remedy for an unsuccessful claimant is to seek judicial review to have the RPD’s decision set aside.\n\nThere was also evidence from Professor Donald Galloway, an immigration and refugee law scholar, a consultant to the Board and a former Board member, that RPD members would feel constrained from departing from the standard order of questioning. However, he did not base his opinion on the actual conduct of members with respect to Guideline 7.\n\nIn short, those challenging the validity of Guideline 7 did not produce evidence establishing on a balance of probabilities that members rigidly apply the standard order of questioning without regard to its appropriateness in particular circumstances.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-39", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 83", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "I recognize that members of the RPD must perform their adjudicative functions without improper influence from others, including the Chairperson and other members of the Board. However, the jurisprudence also recognizes that administrative agencies must be free to devise processes for ensuring an acceptable level of consistency and quality in their decisions, a particular challenge for large tribunals which, like the Board, sit in panels.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-40", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 84", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Most notably, the Supreme Court of Canada in Consolidated-Bathurst upheld the Ontario Labour Relations Board’s practice of inviting members of panels who had heard but not yet decided cases to bring them to “full Board meetings”, where the legal or policy issues that they raised could be discussed in the absence of the parties. This practice was held not to impinge improperly on members’ adjudicative independence, or to breach the principle of procedural fairness that those who hear must also decide. Writing for the majority of the Court, Gonthier J. said (at 340): The institutionalization of the consultation process adopted by the Board provides a framework within which the experience of the chairman, vice-chairmen and members of the Board can be shared to improve the overall quality of its decisions. Although respect for the judicial independence of Board members will impede total coherence in decision making, the Board through this consultation process seeks to avoid inadvertent contradictory results and to achieve the highest degree of coherence possible under these circumstances. … The advantages of an institutionalized consultation process are obvious and I cannot agree with the proposition that this practice necessarily conflicts with the rules of natural justice. The rules of natural justice must have the flexibility required to take into account the institutional pressures faced by modern administrative tribunals as well as the risks inherent in such a practice. …", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-41", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 85–86", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, the arrangements made for discussions within an agency with members who have heard a case must not be so coercive as to raise a reasonable apprehension that members’ ability to decide cases free from improper constraints has been undermined: Tremblay v. Québec (Commission des affaires sociales), [1992] 1 S.C.R. 952.\n\nEvidence that the Immigration and Refugee Board “monitors” members’ deviations from the standard order of questioning does not, in my opinion, create the kind of coercive environment which would make Guideline 7 an improper fetter on members’ exercise of their decision-making powers. On a voluntary basis, members complete, infrequently and inconsistently, a hearing information sheet asking them, among other things, to explain when and why they had not followed “standard practice” on the order of questioning. There was no evidence that any member had been threatened with a sanction for non-compliance. Given the Board’s legitimate interest in promoting consistency, I do not find it at all sinister that the Board does not attempt to monitor the frequency of members’ compliance with the “standard practice”.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-42", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 87–89", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nor is it an infringement of members’ independence that they are expected to explain in their reasons why a case is exceptional and warrants a departure from the standard order of questioning. Such an expectation serves the interests of coherence and consistency in the Board’s decision-making in at least two ways. First, it helps to ensure that members do not arbitrarily ignore Guideline 7. Second, it is a way of developing criteria for determining if circumstances are “exceptional” for the purpose of paragraph 23 and of providing guidance to other members, and to the Bar, on the exercise of discretion to depart from the standrd order of questioning in future cases.\n\nIn my opinion, therefore, the evidence in the present case does not establish that a reasonable person would think that RPD members’ independence was unduly constrained by Guideline 7, particularly in view of: the terms of the Guideline; the evidence of members’ deviation from “standard practice”; and the need for the Board, the largest administrative agency in Canada, to attain an acceptable level of consistency at hearings, conducted mostly be single members.\n\nAdjudicative “independence” is not an all or nothing thing, but is a question of degree. The independence of judges, for example, is balanced against public accountability, through the Canadian Judicial Council, for misconduct. The independence of members of administrative agencies must be balanced against the institutional interest of the agency in the quality and consistency of the decisions, from which there are normally only limited rights of access to the courts, rendered by individual members in the agency’s name. (iii) Is Guideline 7 invalid because it is a rule of procedure and should therefore have been issued under IRPA, paragraph 161(1)(a)?", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-43", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 90–91", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "On its face, the power granted by IRPA, paragraph 159(1)(h) to the Chairperson to issue guidelines in writing “to assist members in carrying out their duties” is broad enough to include a guideline issued in respect of the exercise of members’ discretion in procedural, evidential or substantive matters. Members’ “duties” include the conduct of hearings “as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”: IRPA, section 162. In my view, structuring members’ discretion over the order of questioning is within the subject-matter of the guidelines contemplated by section 159.\n\nIn any event, the Chairperson did not need an express grant of statutory authority to issue guidelines to members. Paragraph 159(1)(h) puts the question beyond dispute, establishes a duty to consult before a guideline is issued, and, perhaps, enhances their legitimacy.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-44", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 92", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "An express statutory power to issue guidelines was first conferred on the Chairperson of the Board in 1993, as a result of an amendment to the former Immigration Act by Bill C-86. Appearing before the Committee of the House examining the Bill, Mr Gordon Fairweather, the then Chairperson of the Board welcomed this addition to the Board’s powers: I’m also pleased that the minister has responded to the need for new tools for managing the board itself. In the board’s desire to ensure consistency of decision-making, we welcome the legislative provision allowing for guidelines…. The provision will reinforce my authority, after appropriate consultations, and the courts have been very specific about saying, no guidelines until you have consulted widely with the caring agencies, the immigration bar, and other non-governmental organizations. But the courts have given the green light for such provision provided we go through those consultations. This provision will reinforce my authority, or the chair’s authority – that is a little less pompous – after appropriate consultations to direct members toward preferred positions and therefore foster consistency in decisions. [Emphasis added] (Canada, House of Commons, Legislative Committee on Bill C-86, Minutes of Proceedings and Evidence, 34th Parl., 3d sess., Issue 5 (July 30, 1992) at 80)", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-45", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 93–95", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, the present appeal raises an important question about the relationship between the Chairperson’s powers to issue guidelines and rules. In particular, are these grants of legal authority cumulative so that, for the most part, the scope of each is to be determined independently of the other? Or, is the Chairperson’s power to issue guidelines implicitly limited by the power to make rules of procedure? If it is, then a change to the procedure of any Division of the Board may only be effected through a rule of procedure issued under paragraph 161(1)(a) which has been approved by Cabinet and subjected to Parliamentary scrutiny in accordance with subsection 161(2).\n\nThe argument in the present case is that Guideline 7 is a rule of procedure and, since it reforms the existing procedure of the RPD, should have been issued under paragraph 161(1)(a), received Cabinet approval and been laid before Parliament. The power of the Chairperson to issue guidelines may not be used to avoid the political accountability mechanisms applicable to statutory rules issued under subsection 161(1).\n\nFor this purpose, the fact that Guideline 7 permits RPD members to exercise their discretion in “exceptional circumstances” to deviate from “standard practice” in the order of questioning does not prevent it from being a rule of procedure: rules of procedure commonly confer discretion to be exercised in the light of particular facts.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-46", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 96–98", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "An analogous line of reasoning is found in the Ontario Court of Appeal’s decision in Ainsley, where it was said that the Ontario Securities Commission’s policy statement prescribing business practices of penny stock dealers which would satisfy the statutory public interest standard was invalid, because it was in substance and effect “a mandatory provision having the effect of law” (at 84). In my opinion, however, Ainsley should be applied to the present case with some caution.\n\nFirst, when Ainsley was decided, the Commission had no express statutory power to issue guidelines and no statutorily recognized role in the regulation-making process. In contrast, the Chairperson of the Board has a broad statutory power to issue guidelines and, subject to Cabinet approval, to make rules respecting a broad range of topics, including procedure.\n\nAdmittedly, the Board’s rules of procedure (as well, of course, as IRPA itself and regulations made under it by the Governor in Council) have a higher legal status than guidelines, in the sense that, if a guideline and a rule conflict, the rule prevails.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-47", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 99–101", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Second, the policy statement considered in Ainsley was directed at businesses regulated by the Commission and was designed to modify their practices by linking compliance with the policy to the Commission’s prosecutorial power to institute enforcement proceedings, which could result in the loss of a licence by businesses not operating in “the public interest”. Guideline 7, on the other hand, is directed at the practice of RPD members in the conduct of their proceedings. It does not impose de facto duties on members of the public or deprive them of an existing right. Guideline 7 lacks the kind of coercive threat, against either claimants or members, in the event of non-compliance, which was identified as important to the decision in Ainsley.\n\nThe Commission’s promulgation of detailed industry standards, other than through enforcement proceedings against individuals, when it lacked any legislative power, raised rule of law concerns. In my opinion, the same cannot plausibly be said of the Chairperson’s decision to introduce a standard order of questioning through the statutory power to issue guidelines, rather than his power to issue rules.\n\nThird, while the Board can only issue formal statutory rules of procedure with Cabinet approval, tribunals often do not require Cabinet approval of their rules. In Ontario, for example, the procedural rules of tribunals to which the province’s general code of administrative procedure applies are not subject to Cabinet approval: Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, subsection 25.1(1). Hence, it cannot be said to be a principle of our system of law and government that administrative tribunals’ rules of procedure require political approval.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-48", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 102–105", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "Fourth, while Guideline 7 changed the way in which the Board conducts most of its hearings, it represents, in my view, more of a filling in of detail in the procedural model established by IRPA and the Refugee Protection Division Rules, than “fundamental procedural change” or “sweeping procedural reform”, to use the characterization in the memorandum of the intervener, the Canadian Council for Refugees.\n\nFor example, rule 16(e) includes the questioning of witnesses in the RPO’s duties, but is silent on the precise point in the hearing when the questioning is to occur. Similarly, while rule 25 deals with the intervention of the Minister, it does not specify when the Minister will lead evidence and make submissions. Rule 38 permits a party to call witnesses, but does not say when they will testify.\n\nFifth, the differences in the legal characteristics of statutory rules of procedure and Guideline 7 should not be overstated. Rules of procedure commonly permit those to whom they are directed to depart from them in the interests of justice and efficiency. Thus, rule 69 of the Refugee Protection Division Rules permits a member to change a requirement of a rule or excuse a person from it, and to extend or shorten a time period. Failure to comply with a requirement of the Rules does not make a proceeding invalid: rule 70.\n\nFinally, as I have already indicated, the Chairperson’s power to issue guidelines extends, on its face, to matters of procedure. Its exercise is not made expressly subject to paragraph 161(1)(a), although a guideline issued under paragraph 159(1)(h) which is inconsistent with a formal rule of procedure issued under paragraph 161(1)(a) will be invalid.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-49", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 106–109", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "On the basis of the foregoing analysis, I conclude that, on procedural issues, the Chairperson’s guideline-issuing and rule-making powers overlap. That the subject of a guideline could have been enacted as a rule of procedure issued under paragraph 161(1)(a) will not normally invalidate it, provided that it does not unlawfully fetter members’ exercise of their adjudicative discretion, which, for reasons already given, I have concluded that it does not.\n\nIn my opinion, the Chairperson may choose through which legislative instrument to introduce a change to the procedures of any of the three Divisions of the Board. Parliament should not be taken to have implicitly imposed a rigidity on the administrative scheme by preventing the Chairperson from issuing a guideline to introduce procedural change or clarification.\n\nI do not say that the Chairperson’s discretion to choose between a guideline or a rule is beyond judicial review. However, it was not unreasonable for the Chairperson to choose to implement the standard order of questioning through the more flexible legislative instrument, the guideline, rather than through a formal rule of procedure.\n\nFirst, Guideline 7 is not a comprehensive code of procedure nor, when considered in the context of the refugee determination process as a whole, is it inconsistent with the existing procedural model for RPD hearings. Second, the procedural innovation of standard order questioning may well require modification in the light of cumulated experience. Fine-tuning and adjustments of this kind are more readily accomplished through a guideline than a formal rule. Parliament should not be taken to have intended the Chairperson to obtain Cabinet approval for such changes. E. CONCLUSIONS", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-50", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 110–113", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "For these reasons, I would allow the Minister’s appeal, dismiss Mr Thamotharem’s cross-appeal, set aside the order of the Federal Court, and dismiss the application for judicial review. I would answer the first two certified questions as follows: 1. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice by unduly interfering with claimants’ right to be heard? No 2. Has the implementation of Guideline 7 led to fettering of Board Members’ discretion? No.\n\nSince I would dismiss the application for judicial review, the third question does not arise and need not be answered. “John M. Evans” J.A. “I agree. Robert Décary J.A.” SHARLOW J.A. (Concurring)\n\nI agree with my colleague Justice Evans that this appeal should be allowed, but I reach that conclusion by a different route.\n\nAs Justice Evans explains, IRPA gives the Chairperson two separate powers. One is the power in paragraph 159(1)(h) to issue guidelines in writing to assist Members in carrying out their duties. The other is the power in paragraph 161(1)(a) to make rules respecting the activities, practice and procedure of the Board, subject to the approval of the Governor in Council. Both powers are to be exercised in consultation with the Deputy Chairpersons and the Director General of the Immigration Division. In my view, these two powers are different in substantive and functional terms, and are not interchangeable at the will of the Chairperson.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-51", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 114–116", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "The subject of Guideline 7 is the order of proceeding in refugee hearings. That is a matter respecting the activities, practice and procedure of the Board, analogous to the subject matter of the procedural rules of courts. In my view, the imposition of a standard practice for refugee determination hearings should have been the subject of a rule of procedure, not a guideline.\n\nI make no comment on the wisdom of the Chairperson’s determination that the standard practice in refugee hearings, barring exceptional circumstances, should be for the RPO or the Member to start questioning the refugee claimant. That is a determination that the Chairperson was entitled to make. However, to put that determination into practice while respecting the limits of the statutory authority of the Chairperson, the Chairperson should have drafted a rule to that effect, in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, and sought the approval of the Governor in Council.\n\nJustice Evans notes that some commentators have suggested that the implementation of a rule under paragraph 161(1)(a) is more onerous in administrative and bureaucratic terms than the implementation of a guideline under paragraph 159(1)(h). That appears to me to be an unduly negative characterization of the legislated requirement for the approval of the Governor in Council, Parliament’s chosen mechanism of oversight for the Chairperson’s rule making power under paragraph 161(1)(a). It is also belied by the facts of this case, which indicates that the development of Guideline 7 took approximately four years. I doubt that a rule with the same content would necessarily have taken longer than that.", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-35611-52", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 117–120", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", - "part": "Federal Court of Appeal", - "division": "", - "text": "The more important question in this case is whether the Chairperson’s erroneous decision to implement a guideline rather than a rule to establish a standard practice for refugee hearings provides a sufficient basis in itself for setting aside a negative refugee determination made by a Member who requires a refugee claimant to submit to questions from the RPO or the Member before presenting his or her own case.\n\nI agree with Justice Evans that the standard procedure outlined in Guideline 7 is not in itself procedurally unfair and that Guideline 7, properly understood, does not unlawfully fetter the discretion of Members. In my view, despite Guideline 7, each Member continues to have the unfettered discretion to adopt any order of procedure required by the exigencies of each claim to which the Member is assigned.\n\nIt may be the case that a particular Member may conclude incorrectly that Guideline 7 deprives the Member of the discretion to permit a refugee claimant to present his or her case before submitting to questioning from the RPO or the Member. If so, it is arguable that a negative refugee determination by that Member is subject to being set aside if (1) the Member refused the request of a refugee claimant to proceed first and required the refugee claimant to submit to questioning by the RPO or the Member before presenting his or her case, and (2) it is established that, but for Guideline 7, the Member would have permitted the refugee claimant to present his or her case first. In the case of Mr. Thamotharem, those conditions have not been met.\n\nFor these reasons, I would dispose of this appeal as proposed by Justice Evans, and I would answer the certified questions as he proposes. “K. Sharlow” J.A. FEDERAL COURT OF APPEAL", - "current_to": "2007-05-25", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" - }, - { - "id": "fca-37227-1", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 1–6", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The applicant is a citizen of Grenada. In 1999, she entered Canada as a visitor. She never left. She has stayed in Canada, contrary to Canada’s immigration laws.\n\nFor her first seven years in Canada, the appellant worked and earned enough to sustain herself. However, in 2006, her health began to deteriorate. She could no longer work.\n\nSince 2006, the appellant has received some medical care without having to pay for it, but much more medical care is required. Her medical condition has become most serious.\n\nIn September 2008, still in Canada contrary to Canada’s immigration laws, the appellant took steps to try to regularize her status in Canada. She applied to Citizenship and Immigration Canada for permanent residence status. A few months later, she applied to Citizenship and Immigration Canada for a temporary residence permit so she could become eligible for health coverage under the Ontario Health Insurance Program. In both applications, she asked for a waiver of the fees. The waivers were refused, the fees remained unpaid, and so the applications were never considered.\n\nIn May 2009, the appellant applied to Citizenship and Immigration Canada for medical coverage under its Interim Federal Health Program. As we shall see, this Program is actually embodied in one of Canada’s immigration laws, Order in Council OIC 1957-11/848. Under this Order in Council, Citizenship and Immigration Canada covers the cost of emergency medical care for indigent persons that it has legally admitted to Canada.\n\nA Director with Citizenship and Immigration Canada found that the appellant was ineligible to receive medical coverage and rejected her application.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-2", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 7–11", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant brought an application for judicial review to the Federal Court, submitting that she was eligible for medical coverage. In the alternative, she submitted that her exclusion from medical coverage infringed her rights under sections 7 and 15 of the Charter. She requested the Federal Court to “read” the Order in Council as including her – in effect, to make this law compliant with sections 7 and 15 of the Charter by extending its terms to provide her with medical coverage.\n\nIf the Federal Court accepted the appellant’s request, the curiosity of some might be piqued: even though the appellant has disregarded Canada’s immigration laws for the better part of a decade, she would be able to take one of Canada’s immigration laws (the Order in Council), get a court to include her by extending the scope of that law, and then benefit from that extension while remaining in Canada contrary to Canada’s immigration laws.\n\nBut the Federal Court (per Justice Zinn) did not accept the appellant’s request to extend the scope of the Order in Council. It rejected her submissions and dismissed the application for judicial review: 2010 FC 810 (main decision) and 2010 FC 926 (decision on motion for reconsideration).\n\nThe appellant appeals to this Court, making submissions substantially similar to those that were made in the Federal Court.\n\nI also reject the appellant’s submissions and would dismiss the appeal. A. The Order in Council", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-3", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 12–13", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "Order in Council OIC 1957-11/848, passed on June 20, 1957, provides as follows: The Board recommends that Order in Council P.C. 4/3263 of June 6, 1952, be revoked, and that the Department of National Health and Welfare be authorized to pay the costs of medical and dental care, hospitalization, and any expenses incidental thereto, on behalf of: (a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment, and (b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer, in cases where the immigrant or such a person lacks the financial resources to pay these expenses, chargeable to funds provided annually by Parliament for the Immigration Medical Services of the Department National Health and Welfare. B. The Director’s decision\n\nThe decision-maker on the appellant’s application to Citizenship and Immigration Canada for medical coverage was the Director, Program Management and Control, Health Management Branch.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-4", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 14–16", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "As mentioned above, the Director denied the appellant medical coverage. The Director’s decision is as follows: Health care services are provided by the Provinces and Territories. As such, access or denial to health care rests with those Provincial and Territorial authorities, in this case the Province of Ontario. The Interim Federal Health Program is an interim measure to provide emergency and essential health care coverage to eligible individuals who do not qualify for private or public health coverage and who demonstrate financial need. IFHP services aim to serve individuals in the following four groups of recipients: ● Refugee claimants; ● Resettled Refugees; ● Persons detained under the Immigration and Refugee Protection Act (IRPA); and, ● Victims of Trafficking in Persons (VTIPs). As you have not provided any information to demonstrate that your client falls into any of the above-mentioned categories, I regret to inform you that your request for IFHP coverage cannot be approved. Please be advised that your client has no active immigration application with Citizenship and Immigration Canada (CIC). C. The standard of review applicable to the Director’s decision\n\nAs mentioned above, the appellant applied to the Federal Court for judicial review of the Director’s decision.\n\nThe Federal Court did not explicitly select a standard of review for its consideration of the Director’s decision. However, it did find, in effect on a correctness standard, that the appellant did not qualify for medical coverage.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-5", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 17–18", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The first step in determining the standard of review is to appreciate the nature of the decision in issue. As mentioned at the outset, the Interim Federal Health Program mentioned by the Director is embodied in an Order in Council (P.C. 157-11/848) and the decision-maker is a delegate of the Minister of Citizenship and Immigration Canada. In effect, we are reviewing the legal interpretation and application of an Order in Council by a delegate of the Minister.\n\nThe Supreme Court has told us that the standard of review will “usually” or “normally” be reasonableness where “a tribunal” is interpreting its “own statute” or “statutes closely connected to its function, with which it will have particular familiarity”: 2008 SCC 9 at paragraph 54, [2008] 1 S.C.R. 190; Celgene Corp. v. Canada (A.G.), 2011 SCC 1 at paragraph 34, 327 D.L.R. (4th) 513; Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paragraph 26, 328 D.L.R. (4th) 1.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-6", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 19", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "I am inclined to find that the Director is subject to this “normal” or “usual” position of deference to his decision-making. But there exists considerable uncertainty on this, arising from Dunsmuir itself, previous case law, and the unusual circumstances of this case: (a) We are dealing with a Ministerial delegate, not a “tribunal” in any formal sense. In Dunsmuir the Supreme Court used the word “tribunal” on this point. In my view, although it is not perfectly clear, in Dunsmuir the Supreme Court did not intend to restrict this position of deference to interpretations by formal tribunals. Throughout its discussion of the standard of review, the Supreme Court used the terms “tribunal,” “decision maker,” “exercises of public authority,” “administrative bodies,” “adjudicative tribunal,” “adjudicative bodies,” “administrative tribunal,” and “administrative actors”: Dunsmuir, supra at paragraphs 28-29, 31, 33, 41, 47-50, 52, 54-56, and 59. It seems to have used the terms interchangeably and, collectively, they are wide enough to embrace a Ministerial delegate such as the Director. (b) In a relatively recent decision, albeit before Dunsmuir, the Supreme Court did not defer to the interpretation of a Ministerial delegate who was interpreting a statute closely related to his function: Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, (a visa officer making an assessment under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I‑2); see also Canada (Minister of Citizenship and Immigration) v. Patel, 2011 FCA 187 and cases cited at paragraph 27 of Patel.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-7", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 19", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is certainly consistent with how we today approach decisions involving some other Ministerial delegates. For example, in the income tax context, income tax assessors – Ministerial delegates – are very familiar with the Income Tax Act. One might think that the normal administrative law standard of review analysis would apply to appeals of these administrators, with deference to their legal interpretations being the result: see, e.g., Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 and Dunsmuir, supra at paragraph 54. But it does not. The Tax Court of Canada, sitting in appeal on income tax assessments, and this Court do not defer at all to the statutory interpretations of the Minister’s delegate. (c) The Supreme Court spoke in Dunsmuir of deference to interpretations of certain types of “statutes.” Did it mean to restrict this principle to “statutes”? There would appear to be no principled basis to do so. Deference probably also applies to interpretations of other types of laws, such as the Order in Council in this case. (d) The Director’s title seems to suggest that he administers programs such as this, and so he could be considered to be interpreting what Dunsmuir described as a law “closely connected with [his] function,” warranting our deference. But there is no evidence in the record on this one way or the other, nor would one expect there to be such evidence given the narrow nature of a record on judicial review.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-8", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 19", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "(e) The position of deference for administrative interpretations of statutes is said in Dunsmuir to apply only “usually” or “normally.” Does this qualification refer to the situations mentioned in Dunsmuir where the correctness standard applies? Perhaps not, as these situations largely do not involve issues of statutory interpretation. Does this qualification refer to some as yet unidentified situations? We simply do not know. (f) In this particular case, as we shall see, the Director did not engage in any actual interpretation of the Order in Council. Rather, he simply interpreted and applied an administrative policy made under that Order in Council. Does this mean that the Director’s decision is subject to correctness review? I am not so sure. There are statements in Dunsmuir that suggest that the Director’s failure to interpret the Order in Council may not matter. In two places in Dunsmuir, the Supreme Court suggests that in assessing the substance of decision-making under the reasonableness standard we are to examine the outcome reached by the decision-maker and not necessarily the plausibility of the reasons actually given. At paragraph 47, we are directed to ask ourselves “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” and at paragraph 48 we are told that an administrative decision can be supported on the basis of reasons that “could [have] be[en] offered” [emphasis added]. (g) I am not alone in my doubts on this issue. Recently, this Court discussed Dunsmuir and the standard of review that should apply to the Governor in Council’s interpretation of a statute. It found the law in this area to be unclear: Global Wireless Management Corp. v.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-9", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 19–25", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "Public Mobile Inc., 2011 FCA 194 at paragraph 35.\n\nFortunately, on the facts of this case, I need not decide whether the standard of review is correctness or the deferential standard of reasonableness. Regardless of the standard of review, the Director’s decision passes muster: as the Director found, the appellant was not entitled to receive medical coverage in this case. D. The Federal Court’s conclusions concerning the decision of the Director\n\nThe Federal Court found that the Director fettered his discretion by following a departmental guideline instead of interpreting the actual wording of the Order in Council. In its view, the Director was entitled to read and consider the departmental guideline but should have interpreted the actual wording of the Order in Council, the law that governed his discretion.\n\nHowever, the Federal Court held that this was immaterial: if the Director had regard to the Order in Council, he would have had to rule that the appellant was not entitled to receive coverage. Therefore, the Director’s decision could stand.\n\nFor the purposes of this appeal, the Federal Court’s bottom-line conclusion was that the appellant was ineligible under the Order in Council to receive medical coverage. E. Assessment of the Federal Court’s decision that the appellant was ineligible to receive medical coverage under the Order in Council (1) Introduction and overview\n\nIn my view, the Federal Court’s bottom line conclusion is correct: the appellant was ineligible to receive medical coverage under the Order in Council.\n\nIn reaching its conclusion, the Federal Court relied upon the plain meaning of the words in the Order in Council. It examined the history behind the Order in Council in order to see if there was some special significance behind some of the wording used in it.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-10", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 26", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Federal Court also placed particular emphasis upon a rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957: see the Federal Court’s reasons at paragraph 44. I agree with the Federal Court’s view that the Minister’s rationale was an important clue as to the intended scope of the Order in Council. It was right to place particular emphasis on it.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-11", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 27", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister’s rationale was as follows: THAT on occasion persons are referred for medical and hospital treatment during the time they are thought to be under the jurisdiction of the Immigration authorities but before it is possible to satisfactorily determine their status as immigrants as defined in the Immigration Act, and because of the urgent nature of the disabling condition, treatment cannot be prudently postponed until their exact status has been completely established. THAT in other instances persons who other than immigrants as defined who are temporarily under the jurisdiction of the Immigration authorities become urgently in need of medical care or hospital treatment, and at the time it is not humanely possible to defer medical action until the determination of who, if any third party, is financially responsible for the cost of such action; THAT it is considered to be in the public interest and necessary for the maintenance of good public relations between the two Federal Departments concerned and the large number of individuals, societies and other agencies who work closely in association with these Departments during the ordinary course of Immigration operations, that the existing authority which is restrictive by reason of the term “immigrant” and also by reason of the conditions of “time” which are applied, be changed to permit the Department of National Health and Welfare to render the necessary medical assistance in these instances; THAT both Departments undertake to administer this authority in such a way as to confine its use to those occasions only when circumstances render it the best course of action in the public interest, and only when humane interests more or less obligate the Departments to accept the responsibility;…", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-12", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 28–32", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Federal Court’s overall conclusion was as follows (at paragraph 51): Properly interpreted, Order-in-Council P.C. 157-11/848 does not apply to the applicant and she is not eligible for [Program] coverage. The applicant is not an “immigrant” in the sense that she is applying for permanent residence in Canada. The applicant is not temporarily under the jurisdiction of immigration authorities. Nor does the applicant fall into one of the narrow, well-defined categories for which immigration authorities feel responsible.\n\nI agree with the general thrust of the conclusion in this passage. But I wish to amplify and clarify it somewhat. This is needed because parties might interpret this passage in future cases to ascribe to the Order in Council a scope of medical coverage greater than is warranted by its terms.\n\nAs is seen from the text of the Order in Council quoted above at paragraph 12, the Order in Council contains two paragraphs, (a) and (b). Each of these sets out certain eligibility criteria. In addition to satisfying the eligibility criteria in paragraphs (a) or (b), a claimant must also “[lack] the financial resources to pay [the medical] expenses.” (2) Paragraph (a) of the Order in Council\n\nParagraph (a) of the Order in Council provides as follows: (a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment…\n\nThe Order in Council does not define “immigrant.” However, the term “immigrant” was defined in The Immigration Act, S.C. 1952, c. 42, subsection 2(i) as “a person who seeks admission to Canada for permanent residence.”", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-13", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 33", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "Definitions of terms in statutes apply to terms contained in orders made under them: Interpretation Act, R.S.C. 1952, c. 158, section 38. It is not clear from the Order in Council whether it was made under the Immigration Act. But, in my view, the definition of “immigrant” in the Immigration Act sheds light on the meaning of that term in the Order in Council given that its subject-matter is related to immigration. I also note that the Minister of Health and Welfare, when offering a rationale for the Order in Council and in discussing its intended scope of coverage, referred to “immigrants as defined,” which must be taken to be “immigrants” as defined under the Immigration Act as it stood at that time: see paragraph 27, above.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-14", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 34–35", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, only those who seek admission to Canada for permanent residence on or before entry to Canada fall under paragraph (a). Paragraph (a) uses the term “immigrant,” meaning “a person who seeks admission to Canada for permanent residence,” and the express wording of paragraph (a) shows that person seeking permanent residence must satisfy one of two conditions: (i) The person seeking admission to Canada for permanent residence was “admitted at a port of entry” but has not “[arrived] at destination,” i.e., is in transit between entry and destination, or (ii) The person seeking admission to Canada for permanent residence is receiving “care and maintenance pending placement in employment.” A fair reading of the Order in Council is that the “care and maintenance” is at the direction of the immigration authorities who met the person upon entry to Canada. In my view, this is a fair reading in light of the history of the Order in Council, reviewed by the Federal Court at paragraphs 30-37, which shows that this medical coverage program was always focused on those entering Canada for the first time, not on those who had already arrived in Canada.\n\nThe appellant does not qualify under either of these conditions. She was not admitted into Canada as an applicant for permanent residence. She was not in transit between entry and destination. The immigration authorities did not direct her “care and maintenance pending placement in employment.” The appellant was simply a visitor who decided to remain in Canada, contrary to Canada’s immigration law. (3) Paragraph (b) of the Order in Council", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-15", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 36–39", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "Paragraph (b) of the Order in Council provides as follows: (b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer…\n\nParagraph (b) refers to “a person,” not an “immigrant,” the term used in paragraph (a). As a result, paragraph (b) covers more than those seeking permanent residence in Canada.\n\nOne requirement that must be met under paragraph (b) is that the person is “subject to Immigration jurisdiction” or is a person “for whom the Immigration authorities feel responsible.”\n\nAt paragraph 46-50 of its reasons, the Federal Court interpreted these phrases in light of their plain wording and the rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957, excerpts of which are reproduced at paragraph 27, above. The Federal Court held (at paragraph 49) that those “subject to Immigration jurisdiction” are: …those persons who are passing through a port of entry and thus subject to the jurisdiction of the Immigration authorities, those persons whose status is being processed by the Immigration authorities, and those persons under detention and in the custody of the Immigration authorities. Persons temporarily under the jurisdiction of the Immigration authorities would also include refugee claimants… I agree with this conclusion and the reasons the Federal Court offered in support of it (at paragraphs 46-50).", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-16", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 40–43", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, by way of clarification, “those persons whose status is being processed by the Immigration authorities” must mean a person who sought that status before or upon entry to Canada. The Program could not have been intended to pay the medical expenses of those who arrive as visitors but remain illegally in Canada and who, after the better part of a decade of living illegally in Canada, suddenly choose to try to regularize their immigration status. Coverage for those persons would be against the whole tenor of the Order in Council, the history of the Order in Council, and the Minister’s stated rationale.\n\nParagraph (b) contains another requirement, expressed in the phrase “and who has been referred for examination and/or treatment by an authorized Immigration officer.” Does that phrase apply only to those who “[have] been referred for examination and/or treatment by an authorized Immigration officer”? Or does it apply both to those who “[have] been referred for examination and/or treatment by an authorized Immigration officer” and to those who are “subject to Immigration jurisdiction”?\n\nIn my view, the latter must be the correct interpretation: all those qualified under paragraph (b) must have been “referred for examination and/or treatment by an authorized Immigration officer.”\n\nThis interpretation is supported by the rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957: see paragraph 27, above.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-17", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 44–46", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "Finally, it must be remembered that in 1957, when the Order in Council was passed, Canada did not have a government-administered medicare scheme. Canadians were obligated to pay for their own health care or arrange for insurance coverage. Given that historical context, it does not make sense that all those “subject to Immigration jurisdiction” would have emergency medical coverage courtesy of the state, even if not specifically “referred for examination and/or treatment by an authorized Immigration officer”. I would add that there is no evidence before the Court to suggest that paragraph (b) was ever interpreted in that way.\n\nGiven this interpretation, the appellant does not qualify under paragraph (b). Upon entry to Canada, she did not claim a status other than visitor and the Immigration authorities were not processing any other status. She was not in the custody of the Immigration authorities, nor was she a refugee claimant. At no time was she “referred for examination and/or treatment by an authorized Immigration officer.” At no time did the “Immigration authorities feel responsible” for her. The appellant was just a visitor who decided to remain in Canada, contrary to Canada’s immigration law.\n\nFor the foregoing reasons, I find that the appellant was ineligible to receive medical coverage under the Order in Council. Therefore, the Director was correct in deciding to deny the appellant medical coverage and the Federal Court was correct in upholding the Director’s decision. F. Are the appellant’s rights under sections 7 and 15 of the Charter infringed? (1) A preliminary observation", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-18", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 47–51", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant raised the constitutional issues for the first time in her application for judicial review in the Federal Court and filed her evidence on those issues in that Court. Before the Director, she did not raise the constitutional issues or offer evidence on those issues.\n\nSometimes this is a fatal flaw that prevents the reviewing court from considering the constitutional issue on judicial review: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16 at paragraphs 38-40, [2005] 1 S.C.R. 257.\n\nIn this case, however, the objection would not lie if the Director did not have the jurisdiction to decide the constitutional issues: Okwuobi, supra, at paragraphs 28-34 and 38; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504. In that circumstance, the Federal Court would be the first place where the constitutional issues could be determined.\n\nThe point was not argued before us and, given my ultimate disposition of the constitutional issues, I need not decide whether the objection lies in this case. (2) The standard of review\n\nWhat is the standard of review of the Federal Court’s decision on the constitutional issues? Since the Director did not consider the constitutional issues, we must look to the law concerning appellate standards of review, not administrative law standards of review.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-19", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 52–54", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The normal rule on appeals is that on pure questions of law or questions of mixed fact and law where the law predominates or is “extricable”, the standard of review is correctness. On questions of fact, or questions of mixed fact and law that are primarily factual in nature, the standard of review is palpable and overriding error. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (A.G.), 2005 SCC 25, [2005] 1 S.C.R. 401.\n\nOn occasion, the Supreme Court has stated that the appellate standard of review on decisions in constitutional cases is correctness and has used language to suggest that there can be no deference on any question, factual or legal, in a constitutional case: see, e.g., Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at paragraph 36, [2003] 3 S.C.R. 3 (“[d]eference ends, however, where the constitutional rights that the courts are charged with protecting begin”).\n\nI do not take these statements to mean that in a constitutional case an appellate court can readily interfere with factual findings and exercises of discretion that are heavily suffused with facts. There are many Supreme Court decisions that confirm that deference on such matters is still warranted: see, e.g., Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761 at paragraph 34, 2008 SCC 23; R. v. Buhay, [2003] 1 S.C.R. 631 at paragraphs 44-45, 2003 SCC 30; R. v. Stillman, [1997] 1 S.C.R. 607 at paragraph 68; R. v. Belnavis, [1997] 3 S.C.R. 341; Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835 at paragraphs 188-189.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-20", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 55–58", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "In other words, the normal appellate standards of review discussed in Housen and H.L. apply in constitutional cases. However, as a practical matter, it is fair to say that correctness review probably happens more frequently in constitutional appeals because of the centrality of the legal issues in such appeals, and the fact that questions of constitutional law are often extricable from the questions of mixed fact and law that arise. (3) Section 7 of the Charter\n\nIn the Federal Court and in this Court, the appellant submits that her exclusion from medical coverage under the Order in Council infringes her section 7 rights to life and security of the person and her right not to be deprived thereof except in accordance with the principles of fundamental justice. (a) Rights to life and security of the person\n\nThe Federal Court found that the appellant’s rights to life and security of the person under section 7 of the Charter were infringed (at paragraph 91): The evidence before the Court establishes both that the [appellant] has experienced extreme delay in receiving medical treatment and that she has suffered severe psychological stress resulting from the uncertainty surrounding whether she will receive the medical treatment she needs. More importantly, the record before the Court establishes that the applicant’s exclusion from…coverage [under the Order in Council] has exposed her to a risk to her life as well as to long-term, and potentially irreversible, negative health consequences…. In my view, the applicant has established a deprivation of her right to life, liberty and security of the person that was caused by her exclusion from the [Order in Council].\n\nThis finding is open to challenge on two grounds. I would reject the first ground, but accept the second. - I -", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-21", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 59–61", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "First, the respondent disputes the Federal Court’s factual finding that the appellant has been exposed to delays and risks. On the facts, the respondent submits that the appellant has been able to obtain hospital admissions and surgeries when required and has been under the active care of both a family doctor and a number of specialists. The respondent adds that in Ontario, where the appellant lives, hospitals cannot deny emergency medical treatment to anyone, when to do so would endanger life: Public Hospitals Act, R.S.O. 1990, c. P.40. As a result, the respondent submits that the appellant has not established a serious deprivation of her right to life or security of the person under section 7 of the Charter.\n\nThe respondent’s submissions gain force from legal proposition that the effects on the protected interests under section 7 must be more than trivial. They must be serious: Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at paragraph 123, [2005] 1 S.C.R. 791; R. v. Morgentaler, [1988] 1 S.C.R. 30 at pages 56 and 173; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 at paragraph 60.\n\nBearing in mind the standard of review, I am not prepared to interfere with the Federal Court’s factual conclusion that the appellant was exposed to a significant risk to her life and health, a risk significant enough to trigger a violation of her rights to life and security of the person. The Federal Court had an evidentiary basis for its finding.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-22", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 62–63", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "At paragraphs 6 to 13, the Federal Court reviewed the appellant’s medical condition while she has remained in Canada. Before 2006, she only required minor medical care. After 2006, however, her medical needs have substantially increased as her health has worsened. Her conditions include uterine fibroids, uncontrolled hypertension, nephrotic syndrome, poorly controlled diabetes, a pulmonary embolism, decreased mobility, shortness of breath, hyperlipidemia and anxiety.\n\nThe Federal Court reviewed the appellant’s access to health care services and medication (at paragraphs 6 to 9). Before 2006, the appellant was able to work. She earned enough income to pay for the minor medical care and medication that she required. After 2006, her medical needs surpassed her ability to pay but she was still able to obtain some treatment. There is some evidence that she had had access to medical assistance at a community health centre. In 2008 she underwent an operation at Humber River Regional Hospital for the removal of uterine fibroids. She was billed for that surgery, but was unable to pay the bill. Later in 2008, the appellant was admitted to St. Michael’s Hospital for ten days for uncontrolled hypertension. In 2009, she was admitted to St. Michael’s Hospital for eight days during which a pulmonary embolism was found. She was unable to pay for the medication to treat that, but the hospital gave her a supply.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-23", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 64–66", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "Evidence was before the Federal Court suggesting that the appellant’s access to health care services and medication was impaired. While eventually the appellant did have her uterine fibroids surgically removed at Humber River Regional Hospital in 2006, at first she was denied service at Woman’s College Hospital due to her lack of insurance coverage and her inability to pay. In 2008, while at St. Michael’s Hospital, a test aimed at determining the cause of her nephritic syndrome could not be performed owing to her inability to pay for treatment and for the medicine that might be necessary if complications arose.\n\nAlso before the Federal Court was expert medical evidence. Overall, this evidence, accepted by the Federal Court, suggested that (at paragraph 91): [if the appellant] were to not receive timely and appropriate health care and medications in the future, she would be at very high risk of immediate death (due to recurrent blood clots and pulmonary embolism), severe medium-term complications (such as kidney failure and subsequent requirement for dialysis), and other long-term complications of poorly-controlled diabetes and hypertension (such as blindness, foot ulcers, leg amputation, heart attack, and stroke).\n\nGiven this evidence, and bearing in mind the deferential standard of review that must be applied to the Federal Court’s findings of fact, I would not give effect to the respondent’s submission that the Federal Court erred in finding that the appellant was exposed to serious health risks. - II -", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-24", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 67–70", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "As mentioned above, based on this evidence, the Federal Court found that the Order in Council created a risk to the appellant. That is true in the sense that if the Order in Council were broader and provided her with all of the treatment and medication she needs, all risk would be averted. But that is not sufficient legally to demonstrate that the Order in Council has caused injury to the appellant’s rights to life and security of the person.\n\nIt is incumbent on the appellant to establish that the failure of the Order in Council to provide medical coverage to her is the operative cause of the injury to her rights to life and security of the person under section 7 of the Charter: TrueHope Nutritional Support Limited v. Canada (A.G.), 2011 FCA 114 at paragraph 11.\n\nThe provision of public health coverage and the regulation of access to it is primarily the responsibility of the provinces and the territories, with the federal government playing a role in funding, the setting of standards under the Canada Health Act, R.S.C. 1985, c C-6 and, occasionally, regulation in specific areas under its criminal law power: Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457.\n\nIf there is an operative cause of the appellant’s difficulties, it is the fact that although she is getting some treatment under provincial law (see paragraph 59, above), that law does not go far enough to cover all of her medical needs.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-25", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 71–73", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant has attempted to obtain coverage under the Ontario Health Insurance Plan. Ontario refused coverage because, as a person in Canada contrary to Canadian immigration law, the appellant is not a “resident” of Ontario under R.R.O. 1990, Regulation 552, section 1.4, enacted under the Health Insurance Act, R.S.O. 1990, c. H.6. She did not judicially review Ontario’s refusal, nor did she argue that Ontario’s eligibility requirements violate her rights under sections 7 and 15 of the Charter. Nor did she challenge the Public Hospitals Act, supra, and argue that it is constitutionally underinclusive or over restrictive. The record reveals no attempt by the appellant to assert section 7 or 15 of the Charter against provincial legislation that limits her access to health care.\n\nFurther, and most fundamentally, the appellant by her own conduct – not the federal government by its Order in Council – has endangered her life and health. The appellant entered Canada as a visitor. She remained in Canada for many years, illegally. Had she acted legally and obtained legal immigration status in Canada, she would have been entitled to coverage under the Ontario Health Insurance Plan: see section 1.4 of Regulation 552, supra.\n\nIn my view, the appellant has not met her burden of showing that the Order in Council is the operative cause of the injury to her rights to life and security of the person under section 7 of the Charter. (b) The principles of fundamental justice", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-26", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 74–77", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "Even if the appellant had discharged the burden of showing that the Order in Council is the operative cause of the injury to her rights to life and security of the person, she would still have to establish that the deprivation of her rights to life and security of the person was contrary to the principles of fundamental justice. Here as well, the appellant has fallen short.\n\nThe appellant submits at paragraph 34 of her memorandum of fact and law that “[g]overnments ought never to deny access to healthcare necessary to life as a means of discouraging unwanted or illegal activity, including to those who have entered or remained in a country without legal or documented status.” The appellant submits that “[t]his principle is fundamental to judicial and legislative practice in Canada.”\n\nAt the root of the appellant’s submission are assertions that the principles of fundamental justice under section 7 of the Charter require our governments to provide access to health care to everyone inside our borders, and that access cannot be denied, even to those defying our immigration laws, even if we wish to discourage defiance of our immigration laws. I reject these assertions. They are no part of our law or practice, and they never have been.\n\nThe Charter does not confer a freestanding constitutional right to health care: Chaoulli, supra at paragraph 104 (per McLachlin C.J.C. and Major J.).", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-27", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 78–80", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The results reached in other recent cases confirm that the Charter does not confer a freestanding constitutional right to health care. In these recent cases, courts have denied claims under the Charter to obtain state funding or financial assistance for necessary treatments: Auton (Guardian ad litem of) v. British Columbia (A.G.), 2004 SCC 78, [2004] 3 S.C.R. 657; Ali v. Canada, 2008 FCA 190; Wynberg v. Ontario (2006), 82 O.R. (3d) 561 (C.A.); Eliopoulos v. Ontario (2006), 82 O.R. (3d) 321 (C.A.); Flora v. Ontario Health Insurance Plan, 2008 ONCA 538, (2008), 91 O.R. (3d) 412 (C.A.).\n\nIn words apposite to the case at Bar, Justice Linden of this Court wrote: The appellants are, in essence, seeking to expand the law…so as to create a new human right to a minimum level of health care…. [T]he law in Canada has not extended that far…[A] freestanding right to health care for all of the people of the world who happen to be…in Canada would not likely be contemplated by the Supreme Court. (Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 at paragraph 36, [2007] 3 F.C.R. 169).\n\nThese judicial statements and holdings suggest that the principle proffered by the appellant cannot qualify as a principle of fundamental justice under section 7 of the Charter. It is not a “legal principle” that is “vital or fundamental to our societal notion of criminal justice,” nor is there “a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate”: R. v. Malmo‑Levine; R. v. Caine, 2003 SCC 74 at paragraphs 112-113, [2003] 3 S.C.R. 571; R. v. D.B., 2008 SCC 25 at paragraph 46, [2008] 2 S.C.R. 3; Canada (Prime Minister) v. Khadr, 2010 SCC 3 at paragraph 23, [2010] 1 S.C.R. 44.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-28", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 81–82", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant invokes other principles of fundamental justice under section 7. She submits that her exclusion from coverage by the Order in Council is arbitrary. She rightly submits that the Supreme Court has recognized that an arbitrary law – a law that “bears no relation to, or is inconsistent with, the objective that lies behind [it]” – will be contrary to the principles of fundamental justice: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at paragraph 103, [2009] 2 S.C.R. 181; Chaoulli, supra at paragraph 104 (per McLachlin C.J.C and Major J.), and Malmo‑Levine, supra at paragraph 135.\n\nHowever, the Order in Council is not arbitrary. It is related to and consistent with the objective that lies behind it. As a general matter, as the analysis in paragraphs 31-46 above shows, the Order in Council is meant to provide temporary, emergency assistance to those who lawfully enter Canada and find themselves under the jurisdiction of the immigration authorities, or for whom the immigration authorities feel responsible. The Order in Council is not meant to provide ongoing medical coverage to all persons who have entered and who remain in Canada, lawfully or unlawfully.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-29", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 83–86", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "In this regard, I agree with the Federal Court and adopt its words (at paragraph 94): I do not accept the applicant’s submission that her exclusion from health care is not consistent with principles of fundamental justice because it is arbitrary. I see nothing arbitrary in denying financial coverage for health care to persons who have chosen to enter and remain in Canada illegally. To grant such coverage to those persons would make Canada a health-care safe-haven for all who require health care and health care services. There is nothing fundamentally unjust in refusing to create such a situation.\n\nThe appellant also submits that the Order in Council offends the principles of fundamental justice because it is unacceptably vague in the sense that it is unintelligible and impossible to interpret. This is a very high standard to meet and, accordingly, successful claims on this basis are extremely rare: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031.\n\nThe appellant falls well short of establishing that high standard. As is evident from paragraphs 31-46 above, the Order in Council can be interpreted and a clear meaning can be gleaned from it.\n\nFinally, the appellant submits that the principles of fundamental justice must also take into account Canada’s obligations under various sources of international human rights law such as the right to life under article 6 of the International Covenant on Civil and Political Rights and rights to health under article 12 of the International Covenant on Economic, Social and Cultural Rights and article 5 of the International Convention on the Elimination of All forms of Racial Discrimination.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-30", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 87–90", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "On the basis of Khadr, supra at paragraph 23, I accept that, in appropriate cases, courts can be assisted by these sources when defining the precise content of certain principles of fundamental justice under section 7. But in this case we are not at the point of defining the content of a principle of fundamental justice. We are not even at first base. The appellant has not offered a principle that meets the criteria set out in Malmo‑Levine, supra and D.B., supra for admission as a principle of fundamental justice under section 7 of the Charter.\n\nTherefore, I conclude that the appellant’s rights under section 7 are not infringed. (4) Section 15 of the Charter (a) General principles\n\nWhen assessing the merits of a subsection 15(1) claim, we must apply a two-part test: (1) whether the law creates a distinction that is based on an enumerated or analogous ground and (2) whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping: Withler v. Canada (Attorney General), 2011 SCC 12 at paragraph 30; R. v. Kapp, 2008 SCC 41 at paragraph 17, [2008] 2 S.C.R. 483.\n\nThe first step tells us that not all distinctions, in and of themselves, are contrary to s. 15(1) of the Charter: Withler, supra at paragraph 31; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9 at paragraph 188, [2009] 1 S.C.R. 222. Subsection 15(1) only covers distinctions made on the basis of the grounds enumerated in subsection 15(1), or grounds analogous to them.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-31", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 91–94", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The second step tells us that the focus under subsection 15(1) is not differential treatment, but rather discrimination. Therefore, in order to succeed, a section 15 claimant must show that the impact of the law is discriminatory: Withler, supra at paragraph 31; Andrews, supra at page 182; Ermineskin Indian Band, supra at paragraph 188; Kapp, supra at paragraph 28.\n\nDiscrimination has been described as follows: …a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. (Andrews, supra, at pages 174-175.) (b) Application of the principles to this case\n\nThe appellant submits that her exclusion from the medical coverage afforded by the Order in Council infringed subsection 15(1) of the Charter because that exclusion was based on an enumerated and analogous ground, and was discriminatory.\n\nThe Federal Court rejected the appellant’s subsection 15(1) submission, primarily on the basis (at paragraphs 79-83) that the appellant had failed to establish that her exclusion from coverage under the Order in Council was based on an enumerated or analogous ground.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-32", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 95–98", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "I find no error in the Federal Court’s rejection of the appellant’s section 15 submissions. In my view, there are four main reasons why the appellant’s section 15 submissions must fail. - I -\n\nIn my view, the appellant has failed to demonstrate that the Order in Council makes a distinction based on any enumerated or analogous ground that is relevant to her situation. On this point, I substantially agree with the Federal Court reasons.\n\nIn this Court, the appellant suggests that the Order in Council creates a “primary distinction” enhanced by a “secondary intersecting ground.”\n\nThe primary distinction is said to be between foreign nationals possessing certain immigration status who are covered under the Order in Council, and other foreign nationals who possess another immigration status who are not covered. As we have seen, however, coverage is potentially available under paragraph (b) to all persons regardless of immigration status. For example, the appellant herself might have been covered by the Order in Council upon her arrival in Canada. Upon entry, she was legally admitted as a visitor. Had she been in desperate need of emergency medical attention at that time and could not otherwise afford it, and if the immigration authorities felt obligated to assist, she would have been covered by the Order in Council.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-33", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 99", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "Further, I do not accept that “immigration status” qualifies as an analogous ground under section 15 of the Charter, for many of the reasons set out in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at paragraph 13, recently approved by the Supreme Court in Withler, supra at paragraph 33. “Immigration status” is not a “[characteristic] that we cannot change.” It is not “immutable or changeable only at unacceptable cost to personal identity.” Finally “immigration status” – in this case, presence in Canada illegally – is a characteristic that the government has a “legitimate interest in expecting [the person] to change.” Indeed, the government has a real, valid and justified interest in expecting those present in Canada to have a legal right to be in Canada. See also Forrest v. Canada (A.G.), 2006 FCA 400 at paragraph 16; Irshad (Litigation Guardian of) v. Ontario (Minister of Health) (2001), 55 O.R. (3d) 43 (C.A.) at paragraphs 133-136.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-34", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 100–101", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The “secondary intersecting ground” is said by the appellant to be “a distinction between undocumented migrants with disabilities, who are adversely affected by the policy, and those without disabilities, who are similarly disqualified from coverage, but who do not have serious disabilities or related healthcare needs, therefore experiencing a differential effect.” Intersecting grounds can affect the quality of the alleged discrimination and influence the section 15 analysis: See, e.g., Denise Reaume, “Of Pigeonholes and Principles: A reconsideration of discrimination law”, (2002) 40 Osgoode Hall L.J. 113-144 at paragraphs 33-42 and Douglas Kropp, “Categorical Failure: Canada’s Equality Jurisprudence – Changing Notions of Identity and the Legal Subject,” (1997) 23 Queen’s L.J. 201 at paragraph 8. As the appellant has failed to establish her primary distinction, immigration status, and since there are other obstacles to her section 15 claim, discussed below, I need not consider this further.\n\nTherefore, in my view, the appellant has failed to demonstrate that the Order in Council makes a distinction based on any enumerated or analogous ground that is relevant to her situation.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-35", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 102–104", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "Parenthetically, I would note that if the appellant had prevailed on this point, subsection 15(2) of the Charter might become live. If the immigrants, refugees and others who do receive medical care under the Order in Council constitute a disadvantaged group embraced by the enumerated or analogous grounds, and if the Order in Council is aimed at ameliorating or remedying that group’s condition, the Order in Council would be a “law, program or activity” within the meaning of subsection 15(2). In such a case, the Order in Council would not be found to be discriminatory under subsection 15(1): Kapp, supra at paragraph 41; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950. - II -\n\nThe appellant has failed to establish that the Order in Council relies upon, perpetuates or promotes prejudice or stereotyping.\n\nThe appellant has been denied coverage because she did not enter as an applicant for permanent residence, is not a person under immigration jurisdiction, and is not a person for whom the immigration authorities feel responsible. In imposing these eligibility criteria, the Order in Council does not suggest that the appellant and others like her are less capable or less worthy of recognition or value as human beings. The Order in Council does not single out, stigmatize or expose the appellant and others like her to prejudice and stereotyping, nor does it perpetuate any pre-existing prejudice and stereotyping. Indeed, the Order in Council, with its eligibility criteria, denies medical coverage to the vast majority of us, and not just the appellant and others like her. The Order in Council treats the appellant – a non-citizen who has remained in Canada contrary to Canadian immigration law – in the same way as all Canadian citizens, rich or poor, healthy or sick. - III -", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-36", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 105–106", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, the facts and the holding of the Supreme Court in Auton, supra are directly on point and confirm that the Order in Council does not infringe section 15 of the Charter. In Auton, the claimants sought an order that British Columbia’s medicare program should be extended to cover a particular treatment for autism. The denial of coverage was said to be discriminatory under section 15 of the Charter. The Supreme Court refused to order British Columbia to extend its medicare program to cover the treatment.\n\nAt paragraph 41, the Supreme Court held that “[i]t is not open to Parliament…to enact a law whose policy objectives and provisions single out a disadvantaged group for inferior treatment.” I note that the Order in Council does not do this. The Supreme Court then added (at paragraph 41): On the other hand, a legislative choice not to accord a particular benefit absent demonstration of discriminatory purpose, policy or effect…does not give rise to s. 15(1) review. This Court has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy, provided the benefit itself is not conferred in a discriminatory manner: Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28 at para. 61; Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83, at para. 55; Hodge, supra, at para. 16.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-37", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 107", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "On the issue whether the benefit was conferred in a discriminatory manner, the Supreme Court stated (at paragraph 42): Where stereotyping of persons belonging to a group is at issue, assessing whether a statutory definition that excludes a group is discriminatory, as opposed to being the legitimate exercise of legislative power in defining a benefit, involves consideration of the purpose of the legislative scheme which confers the benefit and the overall needs it seeks to meet. If a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory. Thus, the question is whether the excluded benefit is one that falls within the general scheme of benefits and needs which the legislative scheme is intended to address.", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-38", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 108–111", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "The exclusion of the appellant from the coverage provided by the Order in Council does not undercut its overall purpose. On the other hand, the exclusion of the appellant from the coverage provided by the Order in Council is consistent with its purpose. The Order in Council is designed to provide emergency care to legal entrants into Canada who are under immigration jurisdiction or for whom immigration authorities feel responsible. Extending these benefits to all foreign nationals in Canada, even those in Canada illegally, stretches the program well beyond its intended purpose. Excluding persons such as the appellant keeps the program within its purpose. In the words of Auton (at paragraph 43), the appellant’s exclusion from the Order in Council “cannot, without more, be viewed as an adverse distinction based on an enumerated ground”; rather, “it is an anticipated feature” of the Order in Council.\n\nSince the Order in Council does not confer benefits in a discriminatory manner, the general rule expressed by the Supreme Court in paragraph 41 of Auton prevails. The government was “under no obligation to create a particular benefit” in the Order in Council and was left “free to target the social programs it [wished] to fund as a matter of public policy.” - IV -\n\nFinally, I query whether the Order in Council, said by the appellant to be discriminatory, is the operative cause of the disadvantage the appellant is encountering. The observations I made in paragraphs 67-73 also apply to the appellant’s section 15 claim.\n\nTherefore, for all of the foregoing reasons, I conclude that the Order in Council does not infringe the appellant’s rights under section 15 of the Charter. G. Justification and remedy", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-39", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 112–114", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "On the issue of justification under section 1 of the Charter – whether the Order in Council is a reasonable limit prescribed by law in a free and democratic society – the Federal Court held (at paragraph 94) that if the Order in Council were extended to prove medical coverage to persons illegally in Canada, such as the appellant, Canada would become a “health care safe haven.” The Federal Court mentioned this in the context of the state’s interest that forms part of the analysis of the principles of fundamental justice under section 7.\n\nIn any analysis of justification under section 1 of the Charter in this case, the interests of the state in defending its immigration laws would deserve weight. If the appellant were to prevail in this case and receive medical coverage under the Order in Council without complying with Canada’s immigration laws, others could be expected to come to Canada and do the same. Soon, as the Federal Court warned, Canada could become a health care safe haven, its immigration laws undermined. Many, desperate to reach that safe haven, might fall into the grasp of human smugglers, embarking upon a voyage of destitution and danger, with some never making it to our shores. In the end, the Order in Council – originally envisaged as a humanitarian program to assist a limited class of persons falling within its terms – might have to be scrapped.\n\nIn this case, it is not necessary to comment on justification under section 1 any further. Nor is it necessary to comment on what constitutional remedy might be awarded under subsection 24(1) of the Charter. The appellant’s constitutional challenge fails for want of proof of rights breach. The Order in Council does not infringe sections 7 and 15 of the Charter. H. Concluding comments", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-37227-40", - "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", - "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 115–117", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", - "part": "Federal Court of Appeal", - "division": "", - "text": "Just before the release of these reasons, this Court released its judgment in Toussaint v. Canada (Citizenship and Immigration), 2011 FCA 146. It held that the Minister must consider the appellant’s request for a waiver of fees for her application for permanent residence in Canada.\n\nOn the evidence in this record, and given the reasons set out in paragraphs 35 and 45, above, a decision by the Minister to waive the fees and accept the appellant’s application will not entitle her to medical coverage under the Order in Council. However, depending upon the terms of legislation in Ontario, she may be entitled to health coverage or assistance from Ontario, now or at some point in the future. That will be for others to decide. I. Proposed disposition\n\nI would dismiss the appeal. In the circumstances, the Crown has asked that costs not be awarded against the appellant. Accordingly, I would not award costs. \"David Stratas\" J.A. “I agree Pierre Blais C.J.” “I agree M. Nadon J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2011-06-27", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" - }, - { - "id": "fca-31447-1", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 1–4", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "On February 18, 1999, Mizanur Rahaman, a 26 year-old citizen of Bangladesh, was refused refugee status by the Convention Refugee Determination Division of the Immigration and Refugee Board. The Board also concluded that the claim had no credible basis within the meaning of subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2.\n\nThe principal effects of a \"no credible basis\" finding are that the unsuccessful claimant for refugee status has no right to apply to remain as a member of the Post-Determination Refugee Claimants in Canada (\"PDRCC\") class and is liable to be removed from Canada seven days after the removal order is effective.\n\nThis is an appeal by Mr. Rahaman from a decision dated November 2, 2001 dismissing an application for judicial review of the Board's rejection of his refugee claim and of the \"no credible basis\" finding. The principal issue to be decided is contained in the question that the Application Judge, Teitelbaum J., certified under subsection 83(1): Is a simple finding that a refugee claimant is not a credible witness sufficient to trigger the application of subsection 69.1 (9.1) of the Immigration Act ? Counsel for Mr. Rahaman has limited the appeal to the Board's \"no credible basis\" finding; the dismissal of the application to set aside the Board's rejection of the refugee claim itself is not being appealed. B. THE BOARD'S DECISION\n\nIn his submissions to the Board, Mr. Rahaman claimed that, as a result of his membership of and activities in the youth wing (\"JJD\") of the Bangladesh National Party (\"BNP\"), he had a well-founded fear of persecution in Bangladesh on account of his political opinions.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-2", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 5", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "More particularly, he alleged that, when participating in protest marches or election campaigns between 1990 and 1996, he had been beaten on several occasions by supporters of the Awami League and of the Jatiya Party, political rivals of the BNP. Awami League supporters, he said, were also responsible for bombing the office of the JJD in the appellant's electoral district and for vandalising a kiosk from which he was selling watches. Further, Mr. Rahaman stated that the police had provided little or nothing by way of protection against these attacks on him and had demanded bribes before being prepared to take any action. Having learned that his name was on a police list of suspected terrorists, and fearing for his life, Mr. Rahaman fled to Canada to claim asylum as a refugee.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-3", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 6–7", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Board was concerned by inconsistencies and implausibilities in Mr. Rahaman's testimony which he could not explain satisfactorily. For instance, the Board found it odd that Mr. Rahaman alleged that he was attacked and denied police protection at a time when the party to which he was affiliated, the BNP, was in power. Further, he could provide the Board with no adequate explanation of how he came to know that he was on a list of suspected terrorists or why, in a letter submitted in evidence to the Board, the local JJD branch of which Mr. Rahaman was an executive member made no mention of problems that its members had had with the police. Moreover, when faced by the Board with documentary evidence of violent clashes between JJD supporters and their rivals, the appellant retracted his testimony denying that such clashes had occurred. The Board also found that the credibility of Mr. Rahaman's evidence was further undermined by the fact that he was apparently willing to remain in Bangladesh during the years of his alleged persecution, when the party for which he worked was in power, but decided to leave when it was defeated, on the ground that his opponents would then seek revenge against him.\n\nHaving considered all the evidence and the submissions, the Board concluded that the claimant was not a Convention refugee. It summarized its conclusion as follows: The panel found a problem with the claimant's general credibility and particularly with his level of implication as he tried to demonstrate in his PIF [scil. Personal Information Form] and testimony. Without further reasons the Board also found that Mr. Rahaman's refugee claim had no credible basis within the meaning of subsection 69.1(9.1) of the Immigration Act. C. THE TRIAL DIVISION'S DECISION", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-4", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 8–9", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "On Mr. Rahaman's application for judicial review to have the Board's decision set aside, submissions were made on his behalf in an attempt to undermine the Board's finding that his evidence was not credible. However, after carefully considering the Board's findings in light of the oral and documentary evidence before it, and of the submissions made to him, Teitelbaum J. concluded that it was not unreasonable for the Board to find that the applicant's claim was not credible. He specifically noted the deference afforded by reviewing courts to credibility findings made by the triers of fact, and that documentary evidence before the Board contradicted in significant respects Mr. Rahaman's testimony.\n\nTeitelbaum J. also found that the Board had based its \"no credible basis\" finding primarily on Mr. Rahaman's lack of credibility. In addition, it had relied on the absence of documentary evidence to support his claim to be at risk of persecution and on the fact that some of the documentary evidence contradicted his account of the situation in Bangladesh at the relevant time. D. LEGISLATIVE FRAMEWORK", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-5", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 10", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "The following provisions of the Immigration Act are relevant to this appeal. Immigration Act, R.S.C. 1985, c. I-2 49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed ... (c) subject to paragraphs (d) and (f), in any case where a person has been determined by the Refugee Division not to be a Convention refugee or a person's appeal from the order has been dismissed by the Appeal Division, (i) where the person against whom the order was made files an application for leave to commence a judicial review proceeding under the Federal Court Act or signifies in writing to an immigration officer an intention to file such an application, until the application for leave has been heard and disposed of or the time normally limited for filing an application for leave has elapsed and, where leave is granted, until the judicial review proceeding has been heard and disposed of, ... (f) in any case where a person has been determined pursuant to subsection 69.1(9.1) not to have a credible basis for the claim to be a Convention refugee, until seven days have elapsed from the time the order became effective, unless the person agrees that the removal order may be executed before the expiration of that seven day period 69.1(9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and 49. (1) Sauf dans les cas mentionnés au paragraphe (1.1), il est sursis à l'exécution d'une mesure de renvoi_: ...", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-6", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 10", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "c) sous réserve des alinéas d) et f), dans le cas d'une personne qui s'est vu refuser le statut de réfugié au sens de la Convention par la section du statut ou don't l'appel a été rejeté par la section d'appel_: (i) si l'intéressé présente une demande d'autorisation relative à la présentation d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale ou notifie par écrit à un agent d'immigration son intention de le faire, jusqu'au prononcé du jugement sur la demande d'autorisation ou la demande de contrôle judiciaire, ou l'expiration du délai normal de demande d'autorisation, selon le cas, ... f) dans le cas où la section du statut a décidé conformément au paragraphe 69.1(9.1) que la revendication n'a pas un minimum de fondement, pendant sept jours à compter du moment où la mesure est devenue exécutoire, à moins que l'intéressé ne consente à l'exécution avant l'expiration de cette période. 69.1(9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim. revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-7", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 11", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "The relevant provisions of the Regulations respecting the PDRCC class follow. Immigration Regulations, 1978, SOR/78-172 2.(1) \"member of the post- determination refugee claimants in Canada class\" means an immigrant in Canada (a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee, other than an immigrant ... (iii) whom the Refugee Division has determined does not have a credible basis for the claim, pursuant to subsection 69.1(9.1) of the Act, ... (c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country, (i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, (ii) of extreme sanctions against the immigrant, or (iii) of inhumane treatment of the immigrant; 2.(1) « demandeur non reconnu du statut de réfugié au Canada » Immigrant au Canada : a) à l'égard duquel la section du statut a décidé, le 1er février 1993 ou après cette date, de ne pas reconnaître le statut de réfugié au sens de la Convention, à l'exclusion d'un immigrant, selon le cas : ... (iii) à l'égard duquel la section du statut a déterminé, en vertu du paragraphe 69.1(9.1) de la Loi, que sa revendication n'a pas un minimum de fondement, ...", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-8", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 11–13", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "c) don't le renvoi vers un pays dans lequel il peut être renvoyé l'expose personnellement, en tout lieu de ce pays, à l'un des risques suivants, objectivement identifiable, auquel ne sont pas généralement exposés d'autres individus provenant de ce pays ou s'y trouvant : (i) sa vie est menacée pour des raisons autres que l'incapacité de ce pays de fournir des soins médicaux ou de santé adéquats, (ii) des sanctions excessives peuvent être exercées contre lui, (iii) un traitement inhumain peut lui être infligé.\n\nSubsection 11.4(1) of the Regulations also provides that, subject to certain limitations, persons found to be members of the PDRCC class, and their dependants, are to be granted permanent residence status in Canada. E. ANALYSIS\n\nCounsel for the appellant has argued that in the past this Court has interpreted too broadly the \"no credible basis\" provision in subsection 69.1(9.1). She has invited us to reconsider settled case law and to adopt a narrower interpretation which, she contends, would be more consistent with the scheme of the Act and would bring Canada into line with international norms. More precisely, it is submitted that a person's refugee claim is not supported by \"no credible or trustworthy evidence\" simply because the Board finds that the claimant is not a credible witness and hence concludes that there is no evidence linking the claimant to the alleged persecution on which the claim is based.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-9", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 14–15", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "The original statutory function of the \"no credible basis\" test was to determine whether a refugee claim could be eliminated at the preliminary stage of a two-stage determination process: subsection 46.01(6), added by Immigration Act, R.S.C. 1985 (4th Supp.), c. 28, s. 14. This process was designed to enable the Board to deal expeditiously with the large numbers of unfounded refugee claims that were anticipated.\n\nHowever, since \"no credible basis\" established a threshold so low that most claimants were able to cross it, the process proved cumbersome, and did not assist the Board to handle its case load in an efficient and expeditious manner. Accordingly, it was abandoned in February 1993 when subsection 46.01(6), was repealed by R.S.C. 1992, c. 49. As a result, inland refugee claimants no longer had to prove that their claims had a credible basis before gaining access to a full determination by the Board. The amendments that came into effect in 1993 also added the present subsection 69.1(9.1), thereby conferring on the \"no credible basis\" test a new function in the statutory scheme, namely to restrict the post-determination rights of unsuccessful claimants whose claims were found to be supported by no credible evidence.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-10", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 16", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.) contains the most authoritative exposition of the \"no credible basis\" test when it performed the function of screening out claims at the preliminary stage of the determination process. Writing for the Court, MacGuigan J.A. concluded (at page 244) that Parliament had intended subsection 46.01(6) to screen out more than clearly \"bogus claims\": The concept of \"credible evidence\" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to \"country reports\" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-11", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 17–18", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "Subsequently, the phrase \"no credible basis\" as it appears in subsection 69.1(9.1) has been interpreted in accordance with Sheikh, supra. Thus, in Mathiyabaranam v. Canada (Minister of Citizenship and Immigration) (1997), 41 Imm. L.R. (2d) 197, at paragraph 12 (F.C.A.), Linden J.A. cited Sheikh, supra, for the proposition that, \"while credible basis and credibility are not identical, they are clearly connected\". At the very least, Mathiyabaranam, supra, is an implicit endorsement of the applicability of Sheikh, supra, in the context of subsection 69.1(9.1).\n\nJudges of the Trial Division have expressly held that Sheikh, supra, is the applicable approach to the words \"no credible basis\" in subsection 69.1(9.1): see, for example, Hernandez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 607 (T.D.); Nizeyimana v. Canada (Minister of Citizenship and Immigration), 2001 FCT 259; Geng v. Canada (Minister of Citizenship and Immigration), 2001 FCT 275.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-12", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 19–20", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "Some Judges have noted, however, that because of the change in statutory context Sheikh, supra, should not be read broadly so as to relieve the Board of the duty to base a \"no credible basis\" finding on the totality of the evidence before it. This caution was well articulated in Foyet v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 181, on which counsel for the appellant placed considerable weight. In this case (supra, at paragraph 19), Denault J. summarised his understanding of the law as follows: In my view, what Sheikh, tells us is that when the only evidence linking the applicant to the harm he or she alleges is found in the claimant's own testimony and the claimant is found to be not credible, the Refugee Division may, after examining the documentary evidence make a general finding that there is no credible basis for the claim. In cases where there is independent and credible documentary evidence, however, the panel may not make a no credible basis finding. In my view, this is an accurate statement of the law as it has been understood to date, subject to one qualification: in order to preclude a \"no credible basis\" finding, the \"independent and credible documentary evidence\" to which Denault J. refers must have been capable of supporting a positive determination of the refugee claim.\n\nThe case law to date would therefore seem to be solidly against the position taken on behalf of Mr. Rahaman in this appeal, namely that the Board may not make a \"no credible basis\" finding if a claim is based on a Convention ground and there is evidence that persecution of the kind alleged has in fact occurred in the country in question.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-13", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 21–22", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nonetheless, counsel submits that we should reconsider the existing jurisprudence on subsection 69.1(9.1) because it is not consistent with Parliament's intention in enacting it. Instead, she argues, a claim should only be found to lack a credible basis if it would be characterised as \"manifestly unfounded\", the test used in international instruments for identifying both claims that may be rejected through a more summary determination procedure than that normally applicable to refugee claims and claimants whose post-determination rights may be truncated in order to expedite their removal. Counsel puts her argument in two ways. (a) The statutory coherence argument\n\nCounsel argues that, to apply the interpretation of the \"no credible basis\" test in Sheikh, supra, to subsection 69.1(9.1) subverts the intention of Parliament by converting into the normal what was intended to be exceptional. The argument is that the statutory scheme established by the Immigration Act contemplates that, in the normal course, an unsuccessful refugee claimant will be entitled to apply to be recognized as a member of the PDRCC class, and to remain in Canada until the final determination of that application and the disposition of any legal proceedings arising either from that application or from the rejection of the refugee claim. A finding of \"no credible basis\", which deprives an unsuccessful claimant of these rights, is intended only for the unusual case where the claim is so devoid of merit as to constitute an abuse of the refugee determination system.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-14", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 23–24", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, it is argued, most refugee claims fail because the Board does not believe the claimant's testimony. Therefore, if a \"no credible basis\" finding can be made when the Board does not find the claimant credible, most unsuccessful refugee claimants will not have the right either to make a PDRCC claim, or to remain in Canada pending the final disposition of an application for judicial review of the Board's dismissal of their refugee claim. The result is that most unsuccessful claimants will not have the benefit of the rights that Parliament intended. Despite the absence of evidence in the record before us on the percentage of refugee claims that are rejected because the claimant is not found to be credible, I am prepared to assume for the purpose of this appeal that they constitute a significant percentage of all unsuccessful refugee claims.\n\nI do not, of course, take issue with that regularly approved principle of statutory interpretation formulated by E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths Ltd., 1983), at page 87, that \"... the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.\" Nonetheless, in my opinion, counsel's argument cannot succeed.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-15", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 25–27", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "First, a word or phrase is presumed to have the same meaning when used more than once in the same statute: R. Sullivan ed., Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths Ltd., 1994), at pages 163-64. This presumption is particularly persuasive when, as here, the phrase is part of a longer text, and both phrase and text appear in different provisions of the statute. In my view, the presumption is not significantly weakened by the fact that the phrase \"no credible basis\" did not appear in provisions of the Immigration Act that were in force at the same time. As I have already noted, the former subsection 46.01(6) was repealed at the same time that subsection 69.1(9.1) was added to the Act.\n\nSecond, I cannot ignore the fact that in Mathiyabaranam, supra, this Court treated the interpretation in Sheikh, supra, of \"no credible basis\" in subsection 46.01(6) as equally applicable to the same words in subsection 69.1(9.1), a view consistently taken in the Trial Division. Only in exceptional circumstances should a well established interpretation of a statutory provision be abandoned.\n\nThird, I do not accept counsel's submission that Sheikh, supra, equates \"no credible basis\" with a finding that the claimant's testimony is not credible. In particular, it is expressly stated in that decision that the Board is to have regard to all the evidence before it: the claimant's oral submissions and any documentary evidence or other oral testimony. See, for example, Nizeyimana, supra; Barua v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1744 (T.D.); Tingombay v. Canada (Minister of Citizenship and Immigration), 2001 FCT 752.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-16", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 28–30", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "Moreover, the wording of subsection 69.1(9.1) provides that a \"no credible basis\" finding may only be made if there was no credible or trustworthy evidence on which the Board member could have upheld the claim. In other words, the Board member may not make a \"no credible basis\" finding if there is credible or trustworthy evidence before it that is capable of enabling the Board to uphold the claim, even if, taking the evidence as a whole, the Board decides that the claim is not established.\n\nHowever, as MacGuigan J.A. acknowledged in Sheikh, supra, in fact the claimant's oral testimony will often be the only evidence linking the claimant to the alleged persecution and, in such cases, if the claimant is not found to be credible, there will be no credible or trustworthy evidence to support the claim. Because they are not claimant-specific, country reports alone are normally not a sufficient basis on which the Board can uphold a claim.\n\nOn the other hand, the existence of some credible or trustworthy evidence will not preclude a \"no credible basis\" finding if that evidence is insufficient in law to sustain a positive determination of the claim. Indeed, in the case at bar, Teitelbaum J. upheld the \"no credible basis\" finding, even though he concluded that, contrary to the Board's finding, the claimant's testimony concerning the intermittent availability of police protection was credible in light of the documentary evidence. However, the claimant's evidence on this issue was not central to the Board's rejection of his claim.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-17", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 31–32", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "Fourth, while the adverse consequences of a \"no credible basis\" finding under subsection 69.1(9.1) are undoubtedly significant for the person concerned, they need to be considered in context. Thus, although those against whom a \"no credible basis\" finding is made do not have a statutory right to an automatic stay of their removal while they exhaust their legal and administrative recourse, if they seek leave to apply for judicial review of the Board's dismissal of their refugee claim, they may ask the Court for a stay pending the Court's disposition of their application.\n\nFurther, although not permitted to apply for exemption from removal as a member of the PDRCC class, an unsuccessful refugee claimant whose claim has been found to have no credible basis may apply to remain in Canada on humanitarian and compassionate grounds in the exercise of the Minister's discretion under subsection 114(2). The existence of an objectively identifiable risk facing the applicant, if returned, is a recognized ground for a positive exercise of discretion: Immigration Canada, Immigration Manual: Inland Processing. looseleaf (Immigration Information Centre; 1991), chapter 5, section 8.8. However, a removal will generally not be stayed pending the completion of a subsection 114(2) application, although a person whose application is based on a risk of persecution in his or her country of origin will normally not be removed if the claimant is found likely to be at serious risk.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-18", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 33–34", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "In other words, while a \"no credible basis\" finding undoubtedly exposes the person concerned to a relatively expeditious removal, removal in fact may be delayed. Legal and administrative safeguards against the removal of those likely to face persecution on their refoulement do exist, even though they are not as favourable as those available to unsuccessful refugee claimants in respect of whom each member of the Board has not made a \"no credible basis\" finding under subsection 69.1(9.1). (b) The international law argument\n\nCounsel for Mr. Rahaman argues that compliance with international norms requires that unsuccessful refugee claimants not be subject to refoulement pending the disposition of legal proceedings brought to review the rejection of their refugee claims, unless their claims are manifestly unfounded. For the Court to interpret subsection 69.1(9.1) to include claims that cannot be said to be manifestly unfounded would put Canada out of line with international legal norms. Only when faced with completely unequivocal statutory language should the Court conclude that an Act of Parliament derogates from international norms respecting the protection of human rights. Sheikh, supra, is silent on this point, perhaps because the judicial recognition of the importance of international norms in the interpretation of statutory powers, and the review of their exercise, is a relatively recent phenomenon in Canada. (i) statutory interpretation: the international context", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-19", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 35–36", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nowadays, there is no doubt that, even when not incorporated by Act of Parliament into Canadian law, international norms are part of the context within which domestic statutes are to be interpreted: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 70. Similarly, in Suresh v. Canada, 2002 SCC 1, at paragraph 59, when referring to the Immigration Act the Supreme Court of Canada stated: \"A complete understanding of the Act ... requires consideration of the international perspective.\" It was also said in Suresh, supra, at paragraph 60, that the reason for examining the international dimension is not to determine if Canada is in breach of its international legal obligations as such, but to use prevailing international norms to inform the interpretation of a provision of domestic law, in that case section 7 of the Canadian Charter of Rights and Freedoms.\n\nOf course, the weight to be afforded to international norms that have not been incorporated by statute into Canadian law will depend on all the circumstances of the case, including the legal authoritativeness of their legal source, their specificity and, in the case of customary international law, the uniformity of state practice. Moreover, although subject to the restraints imposed by the Constitution Acts 1867 to 1982, including the Charter, Parliament is the ultimate source of law in our system of law and government. Hence, effect cannot be given to unincorporated international norms that are inconsistent with the clear provisions of an Act of Parliament. Were it otherwise, the principle that treaties and other international norms only become part of the domestic law of Canada if enacted by Parliament would be undermined.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-20", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 37–39", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "The question before us is whether the interpretation of subsection 69.1(9.1) in Sheikh, supra, authorizes the removal of unsuccessful refugee claimants contrary to international norms. This will occur if a claim supported by \"no credible or trustworthy evidence\" is not also \"manifestly unfounded\" as that phrase is understood in the international community. (ii) a right to remain pending an appeal?\n\nThe first step to answering the above question is to ask if international norms require states to ensure that an unsuccessful refugee claimant is not returned to the country of alleged persecution pending the final disposition of a legal challenge to the dismissal of the refugee claim. This question is not expressly addressed in the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 (the Geneva Convention), or in the 1967 Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267, which are the most authoritative legal texts that define the status of refugee and establish the key principles of protection, including non-refoulement.\n\nHowever, in Article 35 of the Geneva Convention the signatory states undertake to co-operate with the Office of the United Nations High Commissioner for Refugees (UNHCR) in the performance of its functions and, in particular, to facilitate the discharge of its duty of supervising the application of the Convention. Accordingly, considerable weight should be given to recommendations of the Executive Committee of the High Commissioner's Programme on issues relating to refugee determination and protection that are designed to go some way to fill the procedural void in the Convention itself.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-21", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 40–41", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Executive Committee has recommended that unsuccessful refugee claimants be given a reasonable opportunity to appeal from a refusal to recognize their claim, and be permitted to remain in the country of refuge pending appeal, before they are returned to their home country where they may be subject to identifiable risk: see UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: 1998), UN GA, 32 Sess., UN. Doc A/32/12/Add.1 (1977). Similarly, in 1995 the Council of the European Union adopted the Resolution on Minimum Guarantees for Asylum Procedures (\"EU Council Resolution\"), which provides in paragraph 17 that as a general rule asylum seekers should be permitted to remain in the territory of the Member State where protection is being sought until the refusal of the claim has been taken on appeal. See also James C. Hathaway and Anne K. Cusick, \"Refugee Rights Are Not Negotiable\" (2000), Georgetown Imm. L.J. 481, at page 496.\n\nIn my opinion, this material indicates the existence of an international norm that signatory states to the Geneva Convention should normally permit refugee claimants to remain in their territory until they have exhausted any right of appeal or review. This is what paragraph 49(1)(c) of the Immigration Act provides.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-22", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 42–43", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, it is also recognized in international instruments that states may derogate from the normal rule by providing more limited review and appeal rights to unsuccessful claimants whose claims have been held to be \"manifestly unfounded\". Thus, the Executive Committee has indicated a consensus on the problem created by the increase in applicants who \"clearly have no valid claim\" or whose claims are \"manifestly unfounded\", and that states must create separate national procedures to address this problem: Conclusion No. 28 (XXXIII) 1982, UN UNHCR, 32d Sess., UN Doc. EC/SCP/22/Rev.1 (1982), Conclusion No.30 (XXXIV) 1983, UN Doc., Report on the 34th Session of The Executive Committee of the High Commissioner's Programme, UN GAOR, 34th Sess., A/AC.96/631 (1993), Conclusion No. 87 (L) 1999, at paragraph (k).\n\nConsequently, the Executive Committee has recommended (Conclusion No. 30, supra, at paragraph (e)(iii)) that, while refugee claimants must be given an opportunity to have a negative decision reviewed before their forcible removal, \"this review possibility can be more simplified than that available in the case of rejected applications which are not considered manifestly unfounded or abusive.\" See also UN Global Consultations on International Protection, 2d Meeting, UN Doc. EC/GC/01/12 (2001) (\"Global Consultations\"), at paragraph 32. The EU Council Resolution provides that a person whose claim is held to be manifestly unfounded should at least be entitled to request the body reviewing the refusal of the claim to stay the claimant's removal until the review is complete.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-23", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 44–45", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my opinion, the restricted post-determination rights afforded by the Immigration Act to those whose claims are found to have no credible basis are not inconsistent with international norms as evidenced by the above instruments. \"No credible basis\" claimants may apply for judicial review and request the Court to grant a stay pending the disposition of the application, and those found to be at serious risk in their country of origin will not be removed. A problem arises, however, if a claim can fall within this category, but is not \"manifestly unfounded\" as that term is commonly understood in the international community. As I have already noted, a person whose claim is not \"manifestly unfounded\" should be permitted to remain pending the disposition of the appeal or review. (iii) \"manifestly unfounded or clearly abusive\"\n\nThere is no doubt that some international instruments appear to give a very restricted meaning to the term \"manifestly unfounded\". For example, paragraph (d) of Conclusion 30, supra, defines claims that are \"manifestly unfounded\" as \"those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 ... Convention ... nor to any other criteria justifying the granting of asylum\".", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-24", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 46–47", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "More recent pronouncements, however, are less categorical, no doubt in response to a growing number of genuine and bogus refugee claims. For example, Article 28 of the EU Council Resolution, supra, provides a longer list of the grounds on which a Member State may dismiss a refuge claim as manifestly unfounded, although the absence of credible evidence supporting the claim is not among them. However, the inclusion of two grounds on which a claim must not be considered as manifestly unfounded suggests that the longer list of what makes a claim manifestly unfounded is not intended to be exhaustive.\n\nIn addition, the recent report arising from the Global Consultations process of the United Nations canvasses the various approaches adopted by states to the definition of \"manifestly unfounded\": supra, at paragraphs 28-31. In particular, it says that some states have \"factored credibility, or the absence thereof, into the original assessment of manifest unfoundedness\", while others have taken the position that a claim may be manifestly unfounded if made with the intention of misleading the national authorities. Evidence that there is as yet no international consensus on the scope of the term, \"manifestly unfounded\" is provided by paragraph 26 of this document, which states: There is a need, in UNHCR's assessment, to promote a more common understanding of the types of claim which would merit the presumption that they are manifestly unfounded or clearly abusive, and which could be examined under the accelerated procedure.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-25", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 48–50", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "Further evidence of state practices that widen the categories of manifestly unfounded claims to include those that are supported by no credible evidence is supplied by G. Goodwin-Gill, The Refugee in International Law, 2nd ed. (Oxford: Clarendon Press, 1996), at pages 344-47.\n\nOn the basis of the material considered above it is not possible in my opinion to conclude that a comprehensive international norm has emerged defining a manifestly unfounded or abusive application that would exclude a claim that has \"no credible basis\", as interpreted in Sheikh, supra. I would also note in this regard that under Canadian law all eligible inland claimants have a right to a full adjudicative hearing before an independent administrative tribunal, and that a finding of \"no credible basis\" is only made on the basis of this process. F. CONCLUSIONS\n\nIn view of my conclusion on the indeterminate state of international law on whether any claim that has no credible basis within the meaning of subsection 69.1(9.1) is also manifestly unfounded, it is unnecessary to consider whether that provision should be interpreted to include only claims that are manifestly unfounded or clearly abusive. I would only note that, although \"manifestly unfounded or clearly abusive\" is the phrase used in international instruments, Parliament has retained the term \"no credible basis\" in the Act.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-26", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 51–52", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "Finally, while I have not been able to accept the position advanced by counsel for Mr. Rahaman in this appeal, I would agree that the Board should not routinely state that a claim has \"no credible basis\" whenever it concludes that the claimant is not a credible witness. As I have attempted to demonstrate, subsection 69.1(9.1) requires the Board to examine all the evidence and to conclude that the claim has no credible basis only when there is no trustworthy or credible evidence that could support a recognition of the claim.\n\nFor these reasons, I agree with Teitelbaum J. that, having considered the oral and documentary evidence before it, the Board committed no reviewable error in stating that Mr. Rahaman's claim lacked a credible basis. Accordingly, I would dismiss the appeal and answer the certified question as follows: Whether a finding that a refugee claimant is not a credible witness triggers the application of subsection 69.1(9.1) depends on an assessment of all the evidence in the case, both oral and documentary. In the absence of any credible or trustworthy evidence on which each Board member could have determined that the claimant was a Convention refugee, a finding that the claimant was not a credible witness will justify the conclusion that the claim lacks any credible basis.", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-31447-27", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", - "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 53", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", - "part": "Federal Court of Appeal", - "division": "", - "text": "Counsel for the Minister requested costs. However, rule 22 of the Federal Court Immigration Rules, 1993, SOR/93-235, provides that costs are not awarded in respect of an application or an appeal under the Rules, \"unless the Court, for special reasons, so orders.\" In my opinion no special reasons exist here. Given the limited authority from this Court on the interpretation of subsection 69.1(9.1), and the newly emerging importance of international human rights norms for the interpretation of domestic legislation, I cannot regard this appeal as in any way improper or inappropriately brought, a view obviously shared by the Application Judge when he certified a question for appeal. \"John M. Evans\" J.A. \"I agree A.J. Stone J.A.\" \"I agree B. Malone J.A.\"", - "current_to": "2002-03-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" - }, - { - "id": "fca-521840-1", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 1–3", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal of a judgment of the Federal Court (per Fothergill J.) (the Application Judge) dated November 28, 2024 (2024 FC 1914) (the Judgment), dismissing the appellant’s application for judicial review of a decision of the Immigration Division (the ID) of the Immigration and Refugee Board of Canada (IRB).\n\nIn its decision, dated May 31, 2023 (ID File 0003-C2-00553-01 AH) (the ID Decision), the ID found the appellant, Nini Johana Rodriguez Anzola (Ms. Rodriguez Anzola or the appellant), to be inadmissible to Canada on grounds of serious criminality pursuant to paragraph 36(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (the Act) for having committed an offence in her country of origin (trafficking or carrying illegal drugs) which, if committed in Canada, would constitute an offence under an Act of Parliament – here the Controlled Drugs and Substances Act, SC 1996, c. 19 – punishable by a maximum term of imprisonment of at least 10 years.\n\nMs. Rodriguez Anzola, a refugee claimant from Colombia, does not dispute that she pleaded guilty to the Colombian offence, received a jail sentence of 48 months and did not appeal her conviction or sentence. Nor does she dispute the equivalency of the essential elements of the Colombian and Canadian offences.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-2", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 4–5", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, Ms. Rodriguez Anzola claims that she, together with her husband, Mr. Botero Martinez, who faced the same charges and who also fled Colombia to seek refugee status in Canada, were coerced into committing that crime by the Revolutionary Armed Forces of Colombia (the FARC), a Colombian narco-trafficking and guerilla organization. She further claims that, although the defence of duress can legally be raised under Colombian law, it was not practically and reasonably available to her (and her husband), something she says the ID failed to meaningfully consider in rendering its decision in her case.\n\nThe Application Judge refused to interfere with the ID’s decision, finding that the ID had properly limited its analysis to the equivalency of the Colombian and Canadian offences and to whether Ms. Rodriguez Anzola had committed the essential elements of the offence.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-3", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 6–7", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "That said, the Application Judge accepted that Ms. Rodriguez Anzola’s case “may be distinct from those that gave rise to the leading appellate jurisprudence on criminal inadmissibility” and that, therefore, “[s]he should be given the opportunity to revisit the matter before [this Court], in light of the particular circumstances that gave rise to the finding of inadmissibility in her case” (Judgment at para. 48). He observed in this regard that the recent decision of this Court in Canada (Public Safety and Emergency Preparedness) v. Gaytan, 2021 FCA 163 (Gaytan) “confirmed that the ID may consider a defence of duress in the context of inadmissibility proceedings pursuant to [paragraph] 37(1)(a) of the [Act] (membership in a criminal organization; participation in specified transnational crimes)”, which, in his view, “suggests that empowering the ID to consider certain defences for the first time would not be excessively burdensome” (Judgment at para. 47).\n\nAs a result, and as permitted by paragraph 74(d) of the Act, the Application Judge certified the following question for appeal: In determining whether an individual is inadmissible under [paragraph] 36(1)(b) of the Immigration and Refugee Protection Act, are the Immigration Division and Immigration Appeal Division of the Immigration and Refugee Board entitled to consider extenuating circumstances that caused certain legal defences not to be practically available to the claimant in the foreign jurisdiction?", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-4", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 8–12", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "For the reasons set out below, I would grant the appeal and answer in the affirmative the following question, which I find to be more focused on the appellant’s circumstances than the question certified by the Application Judge: In determining whether an individual is inadmissible under paragraph 36(1)(b) of the Immigration and Refugee Protection Act, are the Immigration Division and Immigration Appeal Division of the Immigration and Refugee Board entitled to consider extenuating circumstances that caused the legal defence of duress not to be practically available to the claimant in the foreign jurisdiction?\n\nThe facts that led to Ms. Rodriguez Anzola (and her husband) fleeing Colombia for Canada are not in dispute. They were aptly summarized as follows by the Application Judge:\n\nMr. Botero Martinez worked as a taxi driver in Colombia. One of his clients was in charge of the FARC in Cundinamarca and Bogota. He demanded that Mr. Botero Martinez and Ms. Rodriguez Anzola transport cocaine abroad. He threatened to harm the family and recruit the children into the FARC.\n\nThe couple initially ignored repeated telephone calls from the FARC, but in November 2016, Ms. Rodriguez Anzola’s niece returned from school crying. She said that three men had approached her and threatened to hurt her cousins if her uncle did not answer his telephone.\n\nMr. Botero Martinez and Ms. Rodriguez Anzola eventually acceded to the FARC’s demands. On November 16, 2016, they ingested cocaine in advance of a flight to Spain. However, they were apprehended by the Colombian authorities at the Bogota airport.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-5", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 13–14", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "In December 2020, while Mr. Botero Martinez was still serving his criminal sentence, he continued to receive threatening telephone calls from the FARC. At the end of his house arrest in February 2021, the family moved to another location within Colombia.\n\nMr. Botero Martinez says he was physically assaulted in November 2021. The following month, his children were approached by members of the FARC. On January 1, 2022, one of his sons and his girlfriend were seriously injured.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-6", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "para 15", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Botero Martinez arrived in Canada with his sons and niece on January 11, 2022, and sought refugee protection. Ms. Rodriguez Anzola arrived in Canada on April 11, 2022, and made a similar refugee claim. [10] Shortly after their respective arrival to Canada, Ms. Rodriguez Anzola and her husband were referred to the ID for admissibility hearings due to their criminal convictions in Colombia. Those hearings were held separately, before different ID members, and produced, on the same set of facts and arguments, conflicting outcomes as Mr. Botero Martinez was found not to be inadmissible to Canada for serious criminality on the ground that the defence of duress, although legally available, was not reasonably available to him and that, consequently, the equivalency between the Colombian and Canadian offences had not been established. [11] I note that the ID’s finding in Mr. Botero Martinez’s case is currently under appeal before the Immigration Appeal Division and that said appeal is being held in abeyance pending the outcome of the present matter. [12] In the present matter, the ID found that Ms. Rodriguez Anzola had the opportunity to present the defence of duress at trial but had chosen not to, noting that she had instead pleaded guilty to the impugned offence in exchange for a significantly reduced sentence. The ID further noted that Ms. Rodriguez Anzola was at the time represented by counsel, that counsel was aware of the threats she and her family had sustained and that discussions were held with the prosecution on the involuntary nature of her actions. [13] The ID held that it would not be appropriate, in such circumstances, “to speculate now on the possible application of certain defences” (ID Decision at para. 58).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-7", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 15–17", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Being satisfied that the Colombian and Canadian offences were equivalent, the ID found Ms. Rodriguez Anzola to be inadmissible to Canada for serious criminality. [14] In concluding as it did, the ID relied in large part on Beltran v. Minister of Citizenship and Immigration, 2016 FC 1143 (Beltran), where the Federal Court held that the test for equivalency “does not contemplate the ID weighing evidence of a possible defence not raised in the foreign jurisdiction in order to determine whether the impugned conduct would have resulted in a conviction in Canada” (ID Decision at para. 55, quoting Beltran at para. 18). [15] I note that the ID neither discussed, nor mentioned, Gaytan in its reasons.\n\nOn judicial review, Ms. Rodriguez Anzola argued that the ID had committed two reviewable errors.\n\nFirst, she claimed that the ID had breached her right to procedural fairness by denying her request to submit additional materials in advance of the second – and final – day of the inadmissibility hearing. These materials (the Additional Material) consisted of two packages of documents, one containing counsel’s notes in relation to a decision of the Refugee Protection Division of the IRB granting refugee status to Ms. Rodriguez Anzola’s children and niece; the other containing additional information concerning Ms. Rodriguez Anzola’s fear of the FARC. The ID denied Ms. Rodriguez Anzola’s request on the ground that the Additional Material was “not germane to what was being decided and largely focused on events and issues that post-date the conviction that is the subject of this proceeding” (ID Decision at para. 30).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-8", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 18–21", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Second, Ms. Rodriguez Anzola argued that the ID Decision was unreasonable on the ground that the ID had failed, when conducting the equivalency analysis, to meaningfully address her inability to raise the defence of duress at her criminal trial.\n\nOn procedural fairness, the Application Judge opined that the outcome regarding that issue was dependent on whether the ID was right in limiting its role to asserting the equivalency of the Colombian and Canadian offences as a matter of law and determining whether Ms. Rodriguez Anzola had committed the essential elements of the offence.\n\nAs indicated at the outset of these reasons, the Application Judge determined that the ID’s approach was consistent with binding jurisprudence and was therefore reasonable. As a result, he concluded that the Additional Material, to the extent it concerned the broader circumstances surrounding Ms. Rodriguez Anzola’s criminal trial, was irrelevant and that, therefore, the decision not to consider that material did not breach her right to procedural fairness.\n\nOn reasonableness, the Application Judge opined that the position advocated by Ms. Rodriguez Anzola departed from well-established principles, including that the ID must take a foreign conviction at face value and is not required, in determining whether the impugned conduct would have resulted in a conviction in Canada, to weigh evidence of a possible defence not raised in the foreign jurisdiction and speculate on the chances of success of that defence.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-9", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 22–24", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "However, as mentioned previously, the Application Judge accepted that Ms. Rodriguez Anzola’s circumstances may be distinct from those that gave rise to the leading appellate jurisprudence on inadmissibility for serious criminality and that, therefore, she should be given the opportunity to revisit the present matter on appeal before this Court.\n\nThe main issue in this appeal concerns the authority of the ID, when called upon to determine whether an individual is inadmissible under paragraph 36(1)(b) of the Act, to consider extraneous circumstances that caused the legal defence of duress not to be practically available to that individual in the foreign jurisdiction. If that authority exists, then a second issue arises and it is whether the ID committed a reviewable error in making a finding of inadmissibility in Ms. Rodriguez Anzola’s circumstances.\n\nIt is settled law that when this Court hears an appeal from a decision of the Federal Court on judicial review, its role is to determine first whether the Federal Court selected the appropriate standard of review. If it did, then this Court must determine whether that standard was applied properly. When called upon to determine whether the appropriate standard was applied properly, this Court “performs a de novo review of the administrative decision” (Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45‑47 (Agraira); Gaytan at para. 20).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-10", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 25–27", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Here, the Application Judge reviewed the substance of the ID’s finding of inadmissibility, including the ID’s approach in making that determination, on the presumptive standard of reasonableness. This was the correct call (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 170 (Vavilov); Gaytan at para. 21). This is not disputed by the parties.\n\nWhat is in dispute is whether the Federal Court properly applied that standard to the circumstances of the case. Ms. Rodriguez Anzola contends it did not. To the extent that this Court, at that stage of the analysis, must “step into the shoes” of the Federal Court and focus on the ID Decision (Agraira at para. 46, quoting Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 247), it must apply the standard of reasonableness to its own review of that decision.\n\nI pause to point out that this task is no different because the present appeal has been initiated on the basis of a certified question. Indeed, it is trite that the fact that appeals in the immigration context can only be brought through the certified question regime established under the Act, “neither rebuts the presumption of reasonableness, nor alters [this Court’s] task when it hears appeals from first instance judicial review decisions” (Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at para. 51 (Mason)). This is not disputed by the parties either.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-11", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 28–30", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "As a third issue in this appeal, Ms. Rodriguez Anzola reiterates that it was procedurally unfair on the part of the ID not to consider the Additional Material and that the Application Judge erred in failing to set aside the ID Decision on that ground. She contends that this portion of the ID Decision must be reviewed on a standard of correctness, which, she says, is the standard applicable to questions of procedural fairness.\n\nHowever, to the extent that the Additional Material was found to be irrelevant as not being germane to what was being decided, and as largely focusing on events that post-dated Ms. Rodriguez Anzola’s conviction in Colombia, I am not persuaded that the ID’s refusal to consider the Additional Material raises procedural fairness concerns. On the contrary, the refusal in my view, is more akin to the ID determining what factually constrained the exercise of what it considered, rightly or wrongly, to be the scope of its decision-making authority in this case. This goes to the actual merits of the ID Decision and is reviewable, therefore, on a standard of reasonableness.\n\nBe that as it may, given the conclusions I have reached on the first two issues, it will not be necessary to address the third issue.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-12", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 31–32", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "In addressing this first issue, I will first explain why the question certified by the Application Judge needs to be slightly modified. Second, I will describe, in broad terms, the Act’s inadmissibility framework. Third, I will summarize the parties’ positions on that issue. Fourth, I will address whether, in the first place, duress is a relevant constraint when determining inadmissibility under paragraph 36(1)(b) of the Act. In so doing, I will discuss both the relevance and impact of Gaytan on the present matter. I will discuss as well the place – and importance – of the defence of duress on the concept of criminal liability in Canadian criminal law and its interplay with the Act’s inadmissibility framework, including when a non-citizen is found to be inadmissible for having been convicted of a serious crime in the foreign jurisdiction but who can show that they were prevented from raising the defence of duress due to extraneous circumstances. Finally, I will demonstrate that a positive response to that first question, contrary to the respondent’s contention, does not overrule this Court’s previous jurisprudence on inadmissibility for serious criminality and is consistent with the text, context and purpose of paragraph 36(1)(b) of the Act.\n\nThe test for certification consists in finding whether there is a serious question of general importance and of broad significance which transcends the interests of the parties to the litigation. The certified question must also be dispositive of the appeal. As such, the certification process must not be used as a tool to obtain from our Court declaratory judgments on questions which need not be decided to dispose of the case (Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89 at paras. 11‑13).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-13", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 33–36", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Hence, this Court retains the authority to reformulate a certified question in a way that more accurately reflects the issue at stake. This will be the case where the question is formulated in “rather general terms” (Li v. Canada (Minister of Citizenship and Immigration) (C.A.) (FCA), [1997] 1 FC 235 (Li) at para. 11; Khan v. Canada (Minister of Citizenship and Immigration) (C.A.), 2001 FCA 345 at para. 17; Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175 at para. 5, Rennie J.A. in dissent but not on that point).\n\nHere, the central issue concerns the defence of duress and its practical availability in Ms. Rodriguez Anzola’s circumstances. Seeking the Court’s view on whether the ID is entitled to consider extenuating circumstances that caused “certain legal defences” not to be practically available to the claimant in the foreign jurisdiction is both too vague and too broad.\n\nTo better reflect the real issue at stake, and account for the particular nature of the defence of duress, the question must, in my view, be limited to whether the ID is entitled to consider extenuating circumstances that caused the legal defence of duress not to be practically available to the claimant in the foreign jurisdiction.\n\nSections 33 to 42 of the Act set out various grounds of inadmissibility to Canada, ranging from national security to public health and misrepresentations. Those found at sections 34 to 37 of the Act are more particularly aimed at “facilitat[ing] the removal of [non-citizens] who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism” (Gaytan at para. 36, quoting Sittampalam v. Canada (MCI), 2006 FCA 326 at para. 21).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-14", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 37–38", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Subsection 36(1) is more specifically concerned with conduct amounting to “serious criminality.” This provision sets out three categories of conduct giving rise to inadmissibility on such ground. The one used against Ms. Rodriguez Anzola is found at paragraph 36(1)(b). It reads as follows: Serious criminality Grande criminalité 36(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for 36(1) Emportent interdiction de territoire pour grande criminalité les faits suivants : … […] (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction sous le régime d’une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; … […]\n\nInadmissibility under paragraph 36(1)(b) is established using a test of equivalency developed by the jurisprudence. This test essentially asks whether the acts committed outside Canada and punished there would have been punishable here, in Canada (Li at para. 13). The answer to that question, and I will get back to this later in these reasons, requires a comparison not only of the definitions of the offence committed abroad and of the offence that would have been punishable in Canada, but also of the defences particular to those offences or classes of offences (Li at para. 19). This, in turn, may require evidence “as to how the offence [abroad] had actually been committed” (Li at para. 12, quoting Brannson v. Minister of Employment and Immigration (FCA) [1981] 2 FC 141 at p. 152‑153 (Brannson)).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-15", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 39–41", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Inadmissibility proceedings are governed by sections 44 and 45 of the Act. The authority to conduct inadmissibility hearings is vested in the ID which, by virtue of subsection 162(1) of the Act, possesses in respect of proceedings brought before it under this Act, “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”.\n\nMs. Rodriguez Anzola contends that to avoid deeming morally innocent people inadmissible to Canada in situations like hers, which would be contrary to the statutory objectives of paragraph 36(1)(b) of the Act, the equivalency analysis ought to include an assessment of the factual circumstances underlying the foreign conviction. Unlike previous inadmissibility cases, she says, she did not make the strategic choice to not raise a defence of duress but was silenced by her fear of the FARC throughout her criminal trial.\n\nThe appellant claims that paragraph 36(1)(b) of the Act only targets those whose morally blameworthy conduct poses a risk to Canadian society. Quoting Li, she contends that the purpose of that provision is “obviously to exclude from Canada persons who have done things abroad, for which they have been convicted there, which Canada regards by its laws as constituting serious misconduct” (Appellant’s Memorandum of Fact and Law at para. 66, quoting Li at para. 17).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-16", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 42–44", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "This, she says, was reaffirmed recently in Gaytan which also underscored the importance of precedents as a legal constraint on how and what an administrative tribunal can lawfully decide. In this respect, the appellant notes that Gaytan relied on the example given in Vavilov of an “immigration tribunal” called upon to determine whether a person’s conduct abroad constitutes a criminal offence under Canadian law for the purposes of sections 35 to 37 of the Act. There, the Supreme Court stated that it “would clearly not be reasonable” for such a tribunal “to adopt an interpretation of a criminal law provision that is inconsistent with how Canadian criminal courts have interpreted it” (Appellant’s Memorandum of Fact and Law at para. 66, quoting Gaytan at para. 68).\n\nMs. Rodriguez Anzola claims therefore that to comply with Canadian standards of criminal conduct, the “centrality of the defense of duress in criminal law proceed[ing]s”, needed to be recognized by the ID and meaningfully applied to her circumstances (Appellant’s Memorandum of Fact and Law at para. 67).\n\nShe also asserts that although it was rendered in the context of section 37 of the Act (membership in a criminal organization), Gaytan signals that moral blameworthiness is now a central concern in the determination of inadmissibility generally and suggests, based on some other recent decisions, “an evolving obligation for decision-makers to consider the circumstances surrounding the conviction to avoid absurd consequences in which punishment is imposed on morally innocent people for whom inadmissibility advances neither public safety nor international justice” (Appellant’s Memorandum of Fact and Law at para. 77).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-17", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 45–47", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "The respondent disagrees. It contends that the ID Decision is consistent with binding jurisprudence of this Court and should, therefore, be left undisturbed. It submits that the prevailing equivalency test was established nearly 40 years ago by this Court and is still good law despite the passage of time. Quoting Li, the respondent says that under that test, it is not open to the individual concerned to challenge the validity or merits of the conviction abroad. The retrial of the case applying Canadian rules of evidence or procedure is not open to that individual either.\n\nHere, according to the respondent, what the appellant is really seeking is a change in the equivalency test to require the ID to consider the merits of the foreign conviction in order to determine whether the individual concerned had a fair trial or is morally blameworthy. This, the respondent says, is simply not contemplated by the equivalency test and is, in any event, inconsistent with the text, context and purpose of paragraph 36(1)(b) of the Act.\n\nFurthermore, the respondent submits that there is little, if anything, in the statutory scheme to indicate that inadmissibility decision-makers are equipped to look behind a foreign conviction. The approach advocated by the appellant would require these decision-makers to conduct criminal trials or appeals on foreign convictions, a role which would raise a host of obvious practical, evidentiary and other legal concerns. This, it says, cannot have been what Parliament intended that role to be.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-18", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 48–50", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Finally, the respondent contends that Gaytan is of no assistance to Ms. Rodriguez Anzola in that it does not provide the “necessary foundation for the Court to overrule its previous decisions” (Respondent’s Memorandum of Fact and Law at para. 40). This is so, the respondent claims, because the Court’s comments about moral culpability were explicitly made regarding membership assessments under sections 34 and 37 of the Act, and because there is nothing to suggest therein that the Court intended its comments to extend to inadmissibility assessments made under paragraph 36(1)(b).\n\nThere is no doubt, in my view, when one considers Gaytan as well as the particular nature and importance of the defence of duress in Canadian criminal law, that duress is a relevant constraint in determining inadmissibility under paragraph 36(1)(b) of the Act.\n\nAt the hearing of this appeal, the parties, at the invitation of the Court, spent some time discussing whether there was any principled basis not to apply Gaytan to the present matter. If Gaytan is applicable, then this panel is bound to it by virtue of the horizontal stare decisis principle, according to which the Court follows its prior decisions unless it can be shown that the prior decision sought to be followed is manifestly wrong (Miller v. Canada (Attorney General), 2002 FCA 370 at paras. 9-10; R. v. Sullivan, 2022 SCC 19 at paras. 74-79; Feeney v. Canada, 2022 FCA 190 at para. 16; Chen v. Canada, 2023 FCA 146 at paras. 10‑11; Patel v. Dermaspark Products Inc., 2025 FCA 145 at paras. 31‑32).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-19", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 51–53", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Here, there were no serious attempts on the part of the respondent to show that Gaytan is manifestly wrong. The issue, then, becomes whether Gaytan serves as a basis – or a building block – for a positive response to the appeal’s first issue. As I indicated above, there is no doubt that it does.\n\nI have already pointed out the respondent’s position regarding Gaytan. It says that Gaytan concerns solely membership assessments under sections 34 and 37 of the Act and contains no indication that the Court intended its comments to extend to inadmissibility assessments under paragraph 36(1)(b). With respect, Gaytan goes further than that.\n\nIn Gaytan, the certified question was indeed specific to paragraph 37(1)(a) of the Act and to whether the ID could consider the defence of duress in determining inadmissibility for being a member of a criminal organization. The appellant in that case, the Minister of Public Safety and Emergency Preparedness (the Minister), was of the view that duress could only be raised before him in the context of an application for ministerial relief under subsection 42.1(1) of the Act.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-20", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 54–56", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister raised several arguments in support of his position. One of them was that importing criminal law notions into the admissibility framework was inconsistent with the scheme of the Act because such notions have no direct application to that framework. While he recognized that the defence of duress was aimed at protecting persons charged with an offence from unconstitutional punishment, that is from punishment for morally involuntary actions, the Minister was claiming that inadmissibility was purely a finding that an individual falls within a class of persons defined in the Act, resulting in inadmissibility not being concerned with moral blameworthiness, with punishment for one’s actions, or with that person’s constitutional protections. According to the Minister, these were crucial distinctions that the Federal Court had failed to account for when dismissing his claim that the ID had no authority to consider the defence of duress when ministerial relief is otherwise available under subsection 42.1(1) of the Act (Gaytan at para. 28).\n\nI pause to note that at the time Gaytan was decided, ministerial relief was – and is still – not available in inadmissibility matters based on section 36 of the Act.\n\nThis argument led the Court to examine the intersection between criminal law and the inadmissibility framework, and in particular sections 34 to 37, which, as indicated previously, have the common purpose of “facilitat[ing] the removal of [non-citizens] who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism” (Gaytan at para. 36).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-21", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 57–59", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "This analysis is based on the Supreme Court’s directions in Vavilov regarding the role of binding precedents on the interpretation of statutory law or the common law, as constraints on how and what an administrative decision-maker can lawfully decide, and their relevance in assessing the reasonableness of administrative decisions. As stated by the Supreme Court, this includes decisions of an “immigration tribunal” called upon to determine what constitutes a criminal offence under Canadian criminal law for the purposes of “sections 35 to 37 of the Act” (Gaytan at para. 68, quoting Vavilov at para. 112).\n\nThis means that Canadian criminal law and how it has been interpreted by the courts is a relevant constraint when those provisions of the Act, not just paragraph 37(1)(a), are being applied. The Court, in Gaytan, concluded that “it would take much clearer language from Parliament to remove the availability of the consideration of duress from the ambit of matters the [ID] might consider in an admissibility proceeding” (Gaytan at para. 74). This statement, responding to the Minister’s argument that importing criminal law notions into the admissibility framework generally was inconsistent with the scheme of the Act, was clearly not limited to inadmissibility proceedings grounded in paragraph 37(1)(a) of the Act.\n\nInterestingly, the Court “pause[d] to stress that it [was] not disputed that duress may be raised before the [ID] in matters where inadmissibility is not subject to ministerial relief” (Gaytan at para. 75, emphasis in original). As indicated, inadmissibility matters based on section 36 of the Act (serious criminality and criminality) are not subject to ministerial relief.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-22", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 60–62", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "There, the Court discussed a scenario where the Minister would have initiated inadmissibility proceedings against Mr. Gaytan for having committed a criminal offence overseas, as permitted by paragraph 36(1)(c) of the Act, instead of bringing the matter, as he had done, under paragraph 37(1)(a) of the Act, and said this: According to the Minister’s logic, this would have made duress a relevant consideration because inadmissibility proceedings for serious criminality are not subject to ministerial relief, even though these proceedings would have been based on the same set of facts as the one that led the Minister to raise subsection 37(1)(a) in the case at bar. I agree with the respondent that such an approach, if allow[ed] to stand, would lead to absurd results, as duress would then be available depending solely on which inadmissibility provision the Minister decides to proceed with. Such result cannot not have been intended by Parliament (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 DLR (4e) 193 at para. 27) (Gaytan at para. 75)\n\nApart from the fact that the respondent is now taking an entirely different position in the present matter, this, in my view, is a clear indication that the Court, in Gaytan, considered criminal law, including duress, to be a relevant constraint beyond the confines of paragraph 37(1)(a).\n\nTherefore, the respondent’s contention that there are no indications in Gaytan that the Court intended its comments to extend to inadmissibility assessments under paragraph 36(1)(b), is incorrect.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-23", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 63–65", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Besides, I do not read the ID Decision as saying that duress cannot be considered by the ID when applying the equivalency test in a paragraph 36(1)(b) matter. As was the case in Beltran, on which the ID relied heavily, Ms. Rodriguez Anzola’s claim of duress was dismissed only because the defence of duress, although legally available to her, was not raised in the course of her criminal proceedings in Colombia. There is also case law where other criminal law defences – self-defence for example – were held to be applicable in a paragraph 36(1)(b) matter in circumstances, which I will discuss in more detail below, somewhat similar to those of the present case (Zeine v. Canada (Citizenship and Immigration), 2023 FC 1370 (Zeine)).\n\nThere is no doubt, therefore, based on Gaytan (and on what appears to be the ID’s own position on this point), that the defence of duress is a relevant constraint in a paragraph 36(1)(b) analysis. In Gaytan, the Court stressed that coerced membership could not reasonably have been intended to be captured by sections 34 and 37 of the Act (Gaytan at para. 80) and I see no principled reason to carve out the defence of duress from the operation of the inadmissibility framework when it comes to coerce criminal conduct resulting in a conviction abroad.\n\nThat said, the issue here is whether the ID, when conducting an equivalency analysis, can go so far as to look into the circumstances that caused the legal defence of duress not be practically available.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-24", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 66–68", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "To answer that question, it is important to first underscore the nature and centrality of the defence of duress in Canadian criminal law. That is so because the equivalency test, as we will see in more detail below, essentially asks whether the acts committed abroad would have been punishable in Canada (Li at para. 13).\n\nThe defence of duress has two sources in Canadian criminal law: section 17 of the Criminal Code, RSC 1985, c. C-46 (the Criminal Code), which essentially excuses a person for a criminal act they commit when threatened or compelled by another person, and the common law. In R. v. Ruzic, 2001 SCC 24 (Ruzic), the Supreme Court held that it is a principle of fundamental justice that “only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability” (Ruzic at para. 47).\n\nAt issue in Ruzic was whether some of the restrictions to the defence of duress set out in section 17 of the Criminal Code – the “immediacy” and “presence” restrictions requiring the accused to show that he/she was compelled to commit the offence under threats of immediate death or bodily harm from a person who is present when the offence is committed – accorded with the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) (the Charter). The Supreme Court ruled that they did not.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-25", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 69–70", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "While the Supreme Court recognized that the legislator could restrict – and even remove– a criminal defence and that a withdrawal of a criminal defence would “not automatically breach s. 7 of the Charter” (Ruzic at para. 23), it held that the principles of fundamental justice require that criminal liability only result from morally voluntary conduct. As a result, it ruled the impugned restrictions to be in breach of section 7 of the Charter on the ground that those restrictions allowed individuals to be found guilty of involuntary actions (Ruzic at paras. 48 and 55). The Supreme Court further concluded that these restrictions were not saved by section 1 of the Charter (Ruzic at para. 91). In arriving at these conclusions, it underscored that “[t]he treatment of criminal offenders as rational, autonomous and choosing agents [was] a fundamental organizing principle of criminal law” (Ruzic at para. 45).\n\nA few years later in R. v. Ryan, 2013 SCC 3 (Ryan), the Supreme Court underlined the breadth of the constitutional protection enjoyed by the defence of duress when it observed that “important aspects” of its statutory version had been found to be unconstitutional in Ruzic (Ryan at para. 36).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-26", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 71–72", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "In concluding as it did in Ruzic, the Supreme Court reaffirmed that criminal liability “is founded on the premise that it will be borne only by those persons who knew what they were doing and willed it” (Ruzic at para. 34). In other words, the rationale underlying duress is that of moral involuntariness, a concept entrenched as a principle of fundamental justice (Ryan at para. 23, citing Ruzic at para. 47). This is so crucial that lack of moral voluntariness entitles the offender “to a complete and unqualified acquittal” (Ruzic at para. 43 quoting from Rabey v. The Queen, [1980] 2 S.C.R. 513, at p. 522).\n\nTherefore, moral involuntariness, which serves as the underlying rationale for duress, engages the most basic, fundamental and organizing principles of criminal liability in Canadian criminal law, meaning that to allow individuals who acted involuntarily to be declared criminally liable violates our Constitution (Ruzic at paras. 45 and 55). Put differently, in Canada, the Charter dictates that a crime committed by someone who acted involuntarily is not punishable and cannot attract the stigma of criminal liability. Put yet another way, duress strikes right at the core of criminal liability and so, legally speaking, the accused must be treated for all Canadian legal purposes as if the accused has never committed a criminal offence.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-27", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 73–75", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Ruzic, the Supreme Court stressed that although it does not “negate ordinarily actus reus” (a guilty act) nor does it “ordinarily negate mens rea” (a guilty mind), and rather operates as an excuse, duress, “in its ‛voluntariness’ perspective”, can “more justifiably fall within the ‘principles of fundamental justice’, even after the basic elements of the offence have been established.” This is because, unlike the concept of “moral blamelessness”, duress, in that perspective, can “more easily be constrained” (Ruzic at para. 42).\n\nIt is rational to conclude, therefore, that voluntariness is an “essential ingredient” to any criminal offence in Canada, which means that if a foreign conviction results from the commission of an involuntary act because of duress, then that conviction cannot be regarded as equivalent in Canadian law as lack of voluntariness, cuts to the root of any criminal conviction such that Canada should not recognize a foreign conviction if it occurred in such circumstances.\n\nAgain, in the immigration context, it stands to reason that in determining whether a crime committed outside Canada would have been punishable in Canada for the purposes of paragraph 36(1)(b) of the Act, duress is a relevant constraint given that, if it is established, the person convicted of that crime would be, in Canada, entitled “to a complete and unqualified acquittal”. In other words, the acts underlying the conviction abroad would not be punishable here.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-28", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 76–79", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Does that constraint extend to requiring the ID to look into the circumstances that led the individual concerned not to raise duress when it was otherwise legally available in the country where the conviction occurred? I believe it does because, ultimately, being deprived of the defence of duress due to some extraneous circumstances could amount to not having access to that defence at all.\n\nTherefore, the centrality of the defence of duress on the concept of criminal liability in Canadian law makes it incumbent on the ID to consider the circumstances that prevented the individual concerned from raising that defence in instances where it was otherwise legally available.\n\nIn my opinion, this view does not overrule this Court’s previous jurisprudence on inadmissibility for serious criminality and is consistent with the text, context and purpose of paragraph 36(1)(b) of the Act.\n\nAlthough it precludes treating an inadmissibility proceeding as a retrial of the merits or validity of the foreign conviction, the jurisprudence of this Court on paragraph 36(1)(b) of the Act does not exclude factual considerations beyond the existence of a conviction in all cases, including the facts underlying the foreign conviction for the purposes of determining whether those facts would have led to a conviction in Canada. In fact, the Court cautioned against the equivalency test being reduced to a universal blanket, meaning that in some instances, there will necessarily need to be some consideration for unique circumstances.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-29", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "para 80", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Brannson, Urie J.A., in concurring reasons, expressly stated the need for additional facts “at least in circumstances where the scope of the [Canadian] offence is narrower in compass than that of in the foreign jurisdiction” and that, therefore, a blanket procedure should not be adopted for all instances where an immigration tribunal is called upon to determine whether the offence committed abroad would constitute an offence if committed in Canada (Brannson p. 145) (My emphasis).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-30", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 81–82", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Brannson, the Court found that it was inappropriate to prevent the applicant from testifying about the facts of his conviction in the United States (for having used the mail to promote a fraudulent scheme), the immigration tribunal in that case having ruled that such evidence was irrelevant. For Urie J.A., the issue in that case concerned the extent to which the immigration tribunal was “entitled to flesh out the evidence relating to the United States offence by ascertaining how the offence was committed by the applicant in order to ascertain whether the offence committed would constitute an offence in Canada” (Brannson p. 143). Urie J.A. concluded as follows: It is not sufficient [. . .] for the Adjudicator to simply look at the documentary evidence relating to a conviction for an offence under the foreign law. There must be some evidence to show firstly that the essential ingredients constituting the offence in Canada include the essential ingredients constituting the offence in the United States. Secondly, there should be evidence that the circumstances resulting in the charge, count, indictment or other document of a similar nature, used in initiating the criminal proceeding in the United States, had they arisen in Canada, would constitute an offence that might be punishable by way of indictment in Canada. (Brannson p. 144)\n\nAlthough it was not its role to inquire about the validity or merits of the conviction abroad, the immigration tribunal, according to Urie J.A., had, by contrast, “the obligation to ensure that the conviction in issue arose from acts which were encompassed by the provisions [of the Canadian offence]” (Brannson p. 145).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-31", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 83–85", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Ryan J.A., with whom Kelly D.J. concurred, accepted that in instances where the definition of the foreign offence is broader than, but could contain, the definition of a Canadian offence “it may well be open to lead evidence of the particulars of the offence of which the person under inquiry was convicted” (Brannson p. 153). As we have seen, there are indications that Urie J.A. considered that the leading of such evidence would be relevant or required in other instances.\n\nIn Hill v. Canada (Minister of Employment and Immigration), (FCA) (1987) 1 Imm. L.R. (2d) 1 (Hill), the issue was whether the elements of the crime of theft in Texas were equivalent to those in the Criminal Code, particularly in light of the requirement, in the Canadian definition, that the taking of the property be “without color of right”. The evidence upon which the immigration tribunal in that case had made its finding of inadmissibility was “extremely sparse” (Hill p. 4).\n\nHugessen J.A. (MacGuigan J.A. concurring), identified two fatal flaws with this evidence. First, it was completely lacking as to what was meant in the Texas statute by “theft”. Second, it did not allow to determine whether Mr. Hill might have asserted a colour of right to his taking of the alleged stolen property, and, therefore, to determine whether the offence of which he was convicted in Texas would necessarily, if committed in Canada, have constituted an offence to the Criminal Code provision being compared with (Hill p. 5-6).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-32", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 86–87", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "In concurring reasons, with which MacGuigan J.A. also concurred, Urie J.A., set out his views as to how to perform the equivalency analysis: [F]irst, by a comparison of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law and determining therefrom the essential ingredients of the respective offences; two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not that evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provisions in the same words or not; and three, by a combination of one and two. (Hill p. 9)\n\nThat test was applied in Li, the Court noting that it had been approved in cases subsequent to Hill (Li at para. 13). The Court also noted that the second way of establishing equivalence, the one that permits adducing evidence as to the circumstances of the acts committed abroad, “point[ed] up to the fundamental test of equivalence: would the acts committed abroad and punished there have been punishable here?” (Li at para. 13). Li also clarified that a comparison of the “essential elements” of the foreign and Canadian offences “requires a comparison of the definitions of those offences including defences particular to those offences or those classes of offences” (Li at para. 19).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-33", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 88–89", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "According to the Court, it was “obvious that persons could be convicted of the [foreign] offence in circumstances where they would not be guilty of an offence in Canada, given the defence available here [...]” arising out of the narrower meaning of the Canadian offense (Li at para. 20). In the absence of any evidence pointing to the fact that what led to the foreign conviction would have constituted an offence within the narrower Canadian Criminal Code provisions, the Court concluded that there was no equivalency between the two offences (Li at para. 21).\n\nSome general threads can be pulled from this Court’s jurisprudence: a)A bare legal equivalence is not always sufficient to establish inadmissibility; b)It is neither possible nor desirable to reduce the equivalency test to a universal blanket applicable in every case; c)At a minimum, where a Canadian offence is more narrowly defined than a foreign offence, the decision-maker is entitled to inquire into the facts to determine whether the acts committed abroad fit into the elements of the Canadian offence; d)Put differently, consideration of the facts underlying a foreign conviction is not precluded in all cases and is required in some; e)It is the “essential ingredients” of the Canadian and foreign offences that must be compared, which include the legal availability of defences particular to the crime at issue; and f)Challenging the validity or merits of the foreign conviction is no response to an inadmissibility proceeding.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-34", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 90–92", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Although it precludes treating an inadmissibility proceeding like an appeal of the foreign conviction, the jurisprudence on paragraph 36(1)(b) of the Act confirms that the equivalency test should be treated as flexible enough to account for factual circumstances. In other words, it allows enough space to give some consideration for the unique circumstances of each case in determining equivalency.\n\nTransposed to the present matter, the fundamental question, therefore, is whether, when one considers both the essential “ingredients” of the Colombian and Canadian offences, the acts committed by the appellant in Colombia and for which she was punished there, would have been punishable here, taking into account the facts underlying the Colombian conviction.\n\nAs I said earlier, duress and moral involuntariness are centrally important to Canadian criminal law. One could say that they are “essential ingredients” to any criminal offence in Canada. Again, in Gaytan, this Court considered duress in the context of inadmissibility proceedings and found that “Parliament did not intend membership to extend to those who were forcibly recruited by a terrorist or a criminal organization and performed acts consistent with the goals of such an organization while under duress” (Gaytan at para. 79), and the respondent has failed to provide a principled reason not to apply this reasoning to the context of serious criminality where the issue is that the individual was under duress both during the commission of the crime and during the subsequent legal proceedings.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-35", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 93–95", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Therefore, if its existence is proven in the circumstances of this case, duress would strike at the root of the Colombian conviction such that for all Canadian legal purposes, including immigration, it would have to be regarded as a nullity, even after the basic elements of the offence (actus reus and means rea) have been established.\n\nThe jurisprudence of this Court on equivalence allows for such flexibility.\n\nThe recent decision of the Federal Court in Zeine is consistent with that approach. In that case, although there was no evidence that self-defence was raised at trial in the foreign jurisdiction – or could not have been raised due to extraneous circumstances – the Federal Court held that the “immigration tribunal” – an immigration officer in that case – had failed to consider the potential defence of self-defence, vitiating thereby the reasonableness of the officer’s decision. The Federal Court judge stated that the issue of self-defence had sufficiently been raised in the material before the officer to require consideration such that the foreign offence would not, if committed in Canada, be punishable here (Zeine at paras. 29‑30). It concluded as follows: [33] Mr. Zeine could certainly have raised the issue of self-defence more clearly in his submissions. However, I conclude that the factual context of Mr. Zeine’s conviction and his explanation regarding that context were such that the officer had to consider self‑defence in assessing whether the facts that were proven in the Lebanese criminal case met the essential elements of section 267 of the Criminal Code: see Garcia v Canada (Citizenship and Immigration), 2021 FC 141 at paras 26–28.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-36", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 96–98", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "The respondent insists that the equivalency analysis does not allow the ID to reconsider the validity or merits of the foreign conviction or to embark on “finicky evaluations” of the rules governing the legal process in the foreign jurisdiction, which, according to the respondent, is what Ms. Rodriguez Anzola is ultimately seeking.\n\nWith respect, requiring the ID, for equivalency purposes, to consider whether the defence of duress was practically (or reasonably) available, does not amount to requiring the ID to reconsider the validity or merits of the foreign conviction or to proceed with “finicky evaluations” of the rules governing the legal process in the foreign jurisdiction. Again, the ID’s task is to determine whether the offence committed abroad would, if committed in Canada, be punishable under Canadian law. As we have seen in the case law, an offence may very well be punishable abroad, but not in Canada. Such a finding does not require reconsideration of the merits or validity of the conviction abroad, let alone reconsideration on the basis of the Canadian standards of procedure or evidence.\n\nBesides, the appellant is not suggesting that the ID be entitled to retry the foreign case. She rather claims, as I understand it, that the ID be permitted to consider evidence about duress both during the commission of the crime she was charged with and during the subsequent legal proceedings, in order to determine, even after the basic elements of the offence have been established, whether her circumstances were egregious enough to regard her conviction in Colombia as never having happened.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-37", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 99–103", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "As I have indicated, I believe the equivalency test, as it has been applied so far, allows for this type of inquiry given the critical criminal liability interests at stake. I believe as well that this view is consistent with the text, context and purpose of paragraph 36(1)(b) of the Act.\n\nAs is now well-established, although an administrative decision-maker need not “engage in a formalistic statutory interpretation exercise in every case”, its decision must be consistent with the “modern principle” of statutory interpretation, which focuses on the text, context, and purpose of the statutory provision (Mason at para. 69, quoting Vavilov at paras. 118-119).\n\nHere, the ID did not engage in a statutory interpretation exercise of paragraph 36(1)(b). Its decision is essentially based on what it believes to be jurisprudential constraints.\n\nThe respondent contends that neither the text, context or purpose of paragraph 36(1)(b) allows for consideration of the validity or merits of the foreign conviction. However, as indicated previously, this is not the point.\n\nThe point is whether a text, context and purpose analysis of paragraph 36(1)(b) supports an interpretation that would allow the ID, in an equivalency analysis, to look into the circumstances, including those throughout the criminal trial, that caused the legal defence of duress not be practically available with the consequence that the foreign conviction would be regarded, given the centrality of the defence of duress to the concept of criminal liability in Canada, as a nullity for all Canadian legal purposes, including immigration.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-38", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 104–106", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Paragraph 36(1)(b) operates as a ground of inadmissibility where a permanent resident or foreign national was convicted of an offence outside Canada which, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. At the level of text, neither paragraph 36(1)(b) nor any other provision of the Act clearly specifies the precise terms of equivalency that are required to sustain a finding of inadmissibility, including the evidence or the list of factors the ID is entitled to consider. In particular, nothing in the text of the Act directs immigration officials or tribunals to only consider the elements of the foreign and Canadian offences in all circumstances or precludes consideration of extraneous circumstances in all instances.\n\nThis is probably so because it is highly unlikely that foreign jurisdictions would define their crimes in ways that are equivalent to the manner in which crimes are defined in Canada. This is why this Court has recognized that at least in instances where the elements of a Canadian offence are narrower than its foreign counterpart, the respondent must show that the facts that formed the basis of the conviction abroad fit the narrower Canadian elements.\n\nIt is this opening – that the text of paragraph 36(1)(b) does not preclude the ID from considering the facts underlying the foreign conviction in all circumstances – which, in my view, allows this Court to consider whether the ID is entitled, when conducting an equivalency analysis, to consider evidence of duress throughout the criminal trial. If the text of the Act does not provide a clear answer to that question, context and purpose do.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-39", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 107–110", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "The respondent argues that legislative changes brought to the Act’s inadmissibility framework in 1976 supports its position that from that point on, Parliament no longer intended immigration tribunals to consider the merits of a foreign conviction or the moral blameworthiness of the acts underlying the conviction. Through these amendments, Parliament moved away from the “vague and unsatisfactory” notion of “crimes involving moral turpitude” for an objective criterion based on Canada’s Criminal Code (Respondent’s Memorandum of Fact and Law at paras. 56-58).\n\nHowever, the legislative history of paragraph 36(1)(b) does not assist the respondent as the changes made to that provision do not speak to whether the facts underlying the foreign conviction are allowed to be considered in certain circumstances. As we have seen, according to the jurisprudence of this Court, they do sometimes matter.\n\nThe respondent also claims, as a matter of context, that foreign nationals do not have an unqualified right to enter and remain Canada, meaning that Parliament has the right to impose conditions upon which non-citizens will be permitted to enter and remain in Canada, one such condition being that they will be denied entering or remaining in Canada if convicted abroad of certain criminal offences.\n\nAgain, while it is correct to say that non-citizens do not have an unqualified right to enter and remain Canada, I fail to see how this argument assists in a meaningful way in determining whether paragraph 36(1)(b) precludes the ID from considering the facts underlying the foreign conviction in all circumstances.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-40", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 111–113", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "The respondent insists that its interpretation of paragraph 36(1)(b) finds support in the fact that Parliament created two approaches to determine inadmissibility for serious criminality or criminality, one based on whether a conviction exists, which is the case of that provision, the other based on the commission of specified acts, which allows for assessment of the purported crimes committed.\n\nI believe that in adopting the first approach, Parliament intended to provide a sort of a “bright line” test that would not contemplate a retrial of the facts. This is most obviously demonstrated by the fact that paragraph 36(1)(c) is a related provision that specifically contemplates consideration of criminal acts as opposed to criminal convictions. Paragraph 36(1)(c) requires that the respondent establish reasonable grounds to believe that certain facts exist. Under paragraph 36(1)(b), the intention must have been that the respondent be entitled to rely on the conviction itself as factual proof of the criminal acts committed abroad.\n\nUndoubtedly, Parliament envisioned that proving inadmissibility under paragraph 36(1)(b) would not require a retrial of the facts underlying the foreign conviction. But, again, this is not what is in issue here, and this is not what the appellant is asking for. She does recognize that she committed the acts that led to her conviction. However, she contends that despite her conviction, there is good reason, in the form of persistent duress, not to regard her as a serious criminal.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-41", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 114–115", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "The respondent invokes the Act’s objectives in maintaining the security of Canadian society and promoting security by denying access to Canadian territory to persons who are criminals or security risks (paragraphs 3(1)(h) and (i)), in support of its interpretation of paragraph 36(1)(b). However, the Act is also aimed at granting, “as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution”, and at establishing “fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings” (paragraphs 3(2)(c) and (e)).\n\nFrom a statutory objectives’ standpoint, therefore, while protecting Canadians is important, so too is maintaining procedural fairness and Canada’s humanitarian posture. Hence, allowing the ID to consider whether a non-citizen is truly a serious criminal, in the sense that their conviction abroad is to be regarded, in Canadian law, as a nullity, does not substantially render Canada less safe, at least on the record presented. In the same vein, bluntly denying the opportunity to present evidence on the underlying circumstances of a criminal conviction abroad in all circumstances, with no regard for any context, would not be procedurally fair nor would it conform with Canada’s humanitarian posture.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-42", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 116–119", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Again, here, the appellant is not seeking a retrial of the charges she faced in Colombia. She admits having committed the acts she was charged for, albeit under duress. She rather says that she was unable to raise duress in the course of her criminal proceedings there and that, for this reason, she should not be regarded as a serious criminal within the ambit of the Act and of Canadian criminal law generally.\n\nIn my view, this contention is different enough that it is not obvious from the text, context and purpose of paragraph 36(1)(b) of the Act that such consideration is precluded, especially in light of the fact that if duress is successfully established, her conviction would have to be regarded, for all Canadian legal purposes, as a nullity.\n\nIn sum, based on Gaytan, which establishes the defence of duress as a relevant constraint for the operation of the Act’s inadmissibility framework, and this Court’s jurisprudence on that framework’s serious criminality provisions, which does not preclude consideration of the facts underlying a foreign conviction in all circumstances, and given the centrality of voluntariness as a fundamental governing principle of criminal liability in Canada, I would, being satisfied that this is consistent with the text, context and purpose of paragraph 36(1)(b) of the Act, answer the certified question, as reformulated in these Reasons, in the affirmative.\n\nThe question now is whether this answer should result in the appeal being allowed. I believe it should.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-43", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 120–124", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "As indicated at the outset of these Reasons, it is not disputed that the defence of duress was legally available to Ms. Rodriguez Anzola in Colombia and that despite differences in their wording, the Colombian defence and its Canadian counterpart were “sufficiently similar” (ID Decision at paras. 51‑52).\n\nAt paragraph 53 of its Decision, the ID summarized Ms. Rodriguez Anzola’s position as follows: [53] Ms. Rodriguez Anzola argues that the defence of duress can be considered by the [ID]. Further, she argues there is no precedent that suggests if a person does not raise the defence of duress in the foreign jurisdiction, they would be precluded from doing so now.\n\nFrom there, the ID dismissed Ms. Rodriguez Anzola’s claim on the basis that she had the opportunity to present a defence of duress during her criminal proceedings in Colombia but had instead “willingly entered a plea of guilty” (ID Decision at paras. 56 and 58). Quoting from Beltran, the ID held that it was not its role to weigh evidence of a possible defence not raised in the foreign jurisdiction in order to determine whether the impugned conduct would have resulted in a conviction in Canada (ID Decision at para. 55).\n\nI find the ID Decision to be unreasonable for a number of reasons.\n\nFirst, having concluded that, in determining whether an individual is inadmissible under paragraph 36(1)(b) of the Act, the ID is entitled to consider extenuating circumstances that caused the legal defence of duress not to be practically available to the individual concerned in the foreign jurisdiction, the ID failed to address a critical issue.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-44", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 125–128", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "As appears from the ID Decision, Ms. Rodriguez Anzola testified having been unable to raise the defence of duress at her trial because she was sufficiently concerned for her safety and feared retribution from the FARC had she invoked that defence (ID Decision at para. 8). She testified as well that she ultimately pleaded guilty because she still felt pressure during her criminal proceedings to remain silent in court about the involvement of the FARC, again “for fear they might engage in some kind of retribution against her family” (ID Decision at para. 18; see also para. 51).\n\nThere were no issues with Ms. Rodriguez Anzola’s credibility, the ID being satisfied that she had testified candidly on the events leading up to her involvement in the commission of the offence and “credibly about the resulting court matters and her ultimate conviction” (ID Decision at para. 7).\n\nTherefore, there was evidence before the ID regarding not only the fact that Ms. Rodriguez Anzola was coerced in committing the offence for which she was ultimately convicted but also on the fact that she was coerced from raising duress as a defence against the charges laid against her.\n\nBecause of the approach taken by the ID in this case, which ignored legal constraints on how – and what – it could lawfully decide, this evidence was completely – and unreasonably – disregarded. In sum, the ID failed to address significant legal and factual constraints raised by the appellant “[causing] the reviewing court to lose confidence in the outcome reached by the decision maker” (Mason at para. 69, quoting Vavilov at para. 122).", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-45", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 129–131", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "Second, Beltran was only of limited application, if any, as, contrary to what was before the ID in the present matter, there was no evidence that Mr. Beltran could not practically avail himself of the defence of duress in the foreign jurisdiction (the United States). Beltran is a case where the defence of duress was not raised in the foreign jurisdiction while it was otherwise legally available and while there was no indication that it was not reasonably available to Mr. Beltran.\n\nAs a result, the ID unreasonably felt bound to apply Beltran while the allegations before it was that the defence of duress was not raised due to persistent duress. In such context, the ID was constrained to look into the circumstances that made that defense unavailable to Ms. Rodriguez Anzola. However, this critical step in the analysis was totally ignored.\n\nFinally, contrary to the ID’s decision regarding Mr. Botero Martinez, the appellant’s husband, no consideration whatsoever seems to have been given to Gaytan in the present matter, whereas it appears to have been central to the ID decision in Mr. Botero Martinez’s case (Appeal Book at 908-909). As indicated at the outset of these reasons, Gaytan, rendered in 2021, is not even mentioned in the ID Decision, rendered on May 31, 2023. As the Supreme Court stated in Vavilov, at paragraph 105, “[e]lements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers”. Gaytan was, no doubt, as I indicated at paragraph 63 of these reasons, a relevant and critical constraint to what the ID could reasonably decide in this case.", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fca-521840-46", - "doc_type": "caselaw", - "act_code": "2026 FCA 90", - "act_short": "Rodriguez Anzola", - "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", - "marginal_note": "paras 132–137", - "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", - "part": "Federal Court of Appeal", - "division": "", - "text": "The ID’s silence on this critical point caused “[a] failure of justification in light of the legal and factual constraints bearing on the decision” (Mason at para. 66), and undermines, therefore, the level of confidence in the outcome reached by the ID (see also Vavilov at para. 112).\n\nIn sum, what plagues the ID Decision is the ID’s failure to account for significant legal and factual constraints that were relevant to what it had to decide in this case. In the result, I find that the ID Decision fails to bear the hallmarks of reasonableness.\n\nFor all these reasons, I find the ID Decision unreasonable. Therefore, I would allow the appeal, answer the reformulated certified question in the affirmative, set aside the ID Decision and remit the matter to the ID, differently constituted, for reconsideration on the basis of these Reasons.\n\nIt will be up to the ID member that will be tasked to reconsider the matter to determine the admissibility and relevance of any additional material Ms. Rodriguez Anzola might wish to bring forward on rehearing.\n\nAs provided for under section 22 of the Federal Citizenship, Immigration and Refugee Protection Rules, SOR 93/22, no costs are awarded in proceedings brought under the Act, including appeals before this Court, unless there are special reasons to do so. Neither party claims that there are special reasons calling for an award of costs in this appeal.\n\nI would therefore allow the appeal, without costs. \"René LeBlanc\" J.A. “I agree. David Stratas J.A.” “I agree. Nathalie Goyette J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2026-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" - }, - { - "id": "fc-64594-1", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 1–3", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "This is an application for judicial review of a decision of an officer of Citizenship and Immigration Canada (the Officer) denying the Applicant’s application for a temporary resident visa and determining that the Applicant engaged in misrepresentation with the result, pursuant to subsection 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the IRPA), that he is inadmissible to Canada for a period of two years. The application is brought pursuant to subsection 72(1) of the IRPA. Background\n\nThe Applicant is a citizen of Mauritius. He was granted a study permit for the period December 24, 2006 to January 31, 2008. This was renewed for the period January 4, 2008 to September 27, 2008 and he was issued a work permit on April 4, 2008, also valid to September 27, 2008 which permitted him to work up to 20 hours a week during regular academic sessions and full time during scheduled breaks. The work permit is referred to by Citizenship and Immigration Canada (CIC) as an off-campus work permit (OCWP). His study permit was again renewed for the period September 15, 2008 to April 30, 2009 and an OCWP on the same terms was issued on October 15, 2008 also valid to April 30, 2009. A final study permit and OCWP were issued on April 24, 2009 valid to May 16, 2012.\n\nFrom January 2010 to December 2010, the Applicant attended the Northern Alberta Institute of Technology (NAIT) and successfully completed a full-time, one year Water and Waste Technician Program. While attending the NAIT, he held a part time practicum position at IVIS Inc., from May 2010 to September 2010, as permitted by the OCWP.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-2", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 4–7", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "Upon graduation, the Applicant commenced full time employment with IVIS Inc., as of December 20, 2010 and continuing to September 2012. He was no longer a student and did not obtain an alternate work permit until June 1, 2012.\n\nOn November 3, 2011, the Applicant was refused a temporary resident visa by the CIC office in Los Angeles.\n\nThe Applicant applied for, and on June 1, 2012 was issued, a work permit valid to June 1, 2014, permitting the Applicant to work at IVIS Inc.\n\nThe Applicant again applied for a temporary residency visa on October 11, 2012 at the CIC Seattle office. In that application, in reply to the question “Have you ever been refused any kind of visa, admission, or been ordered to leave Canada or any other country.” He responded “no” and did not disclose the November 3, 2011 temporary residency visa refusal in Los Angeles.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-3", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 8–9", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "On October 31, 2012, the Officer sent the Applicant a “fairness letter” pointing out that the Applicant had failed to disclose the prior temporary residency visa refusal in Los Angeles. This stated, in part: It is difficult to escape the conclusion that your failure to disclose the previous refused TRV application in your application to this office was a deliberate attempt to conceal both the refusals themselves and the reasons for them. Immigration records in Canada together with the information and evidence submitted in your application indicate that you engaged in unauthorized full-time employment whilst you were the holder of an off-campus work permit. The record shows that you were requested to surrender the document but failed to comply. This was the primary reason for the refusal of your application by the Los Angeles office. Your failure to disclose the refusal of your application in that office, therefore, could have induced an error in the administration of the Act and regulations.\n\nThe letter also referred to subsection 40(1)(a) of the IRPA which states that a foreign national is inadmissible due to misrepresentation as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. The Applicant was given an opportunity to provide an explanation or documentary evidence to address this issue.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-4", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 10–12", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "In response, the Applicant submitted a Statutory Declaration in which he stated that a clerical error had been made by the immigration consultant who helped him with his application with the result that he had answered “no” to the question, “Have you ever been refused any kind of visa, admission, or been ordered to leave Canada or any other country?” when the correct answer was “yes”. He stated that this was not an intentional mistake, and, that he had never engaged in any unauthorized full-time employment while he was the holder of an OCWP and had never received any request from any immigration office to surrender any document. He attached all of the study and work permits he had received.\n\nThe Applicant also submitted a statutory declaration by Mr. Randy McDonald who identified himself as an administrative assistant at Canwrx Group Ltd., the immigration consultant that had acted as the Applicant’s representative in making the October 2012 temporary residency visa application. Mr. McDonald confirmed that he had made the clerical error described above.\n\nBy letter dated January 8, 2013, the Officer advised the Applicant that he did not meet the requirements for a temporary resident visa. Decision Under Review", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-5", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 13", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "In the January 8, 2013 letter, the Officer stated that he was not satisfied that the Applicant met the requirements of the IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-22 (the IRPA Regulations) and that the Officer was, therefore, refusing his application. [13] The basis for the refusal was that the Officer was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary resident as he had contravened the conditions of admission on a previous stay in Canada and as he had not answered all of the questions in his application truthfully as required by subsection 16(1) of the IRPA. Specifically, the Applicant had denied previously being refused a visa when, in fact, he had been refused by the CIC Los Angeles office. Further, that the Applicant had denied engaging in unauthorized employment whereas the record and his own application indicated otherwise. The letter also stated that the Applicant had no authority to work after he completed his studies at the NAIT. As it had been determined that the Applicant had engaged in misrepresentation pursuant to subsection 40(1)(a) of the IPRA, the Applicant was inadmissible to Canada for a period of two years. Applicable Law and Policy", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-6", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 14", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "The relevant provisions of the IRPA are as follows: PART 1 IMMIGRATION TO CANADA DIVISION 1 REQUIREMENTS AND SELECTION Requirements 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. […] Obligation — answer Truthfully 16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. […] Misrepresentation 40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; […] (2) The following provisions govern subsection (1): (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and […] PARTIE 1 IMMIGRATION AU CANADA SECTION 1 FORMALITÉS ET SÉLECTION Formalités 11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la présente loi. […] Obligation du Demandeur 16.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-7", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 14", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "(1) L’auteur d’une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, […] Fausses déclarations 40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants : a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans l’application de la présente loi; […] (2) Les dispositions suivantes s’appliquent au paragraphe (1): (a) l’interdiction de territoire court pour les deux ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la mesure de renvoi; […]", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-8", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 15", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "The relevant provisions of the IRPA Regulations state: PART 9 TEMPORARY RESIDENTS DIVISION 1 TEMPORARY RESIDENT VISA 179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national (a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class; (b) will leave Canada by the end of the period authorized for their stay under Division 2; (c) holds a passport or other document that they may use to enter the country that issued it or another country; (d) meets the requirements applicable to that class; (e) is not inadmissible; and (f) meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act. PARTIE 9 RÉSIDENTS TEMPORAIRES SECTION 1 VISA DE RÉSIDENT TEMPORAIRE 179. L’agent délivre un visa de résident temporaire à l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis: a) l’étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2; c) il est titulaire d’un passeport ou autre document qui lui permet d’entrer dans le pays qui l’a délivré ou dans un autre pays; d) il se conforme aux exigences applicables à cette catégorie; e) il n’est pas interdit de territoire; f) s’il est tenu de se soumettre à une visite médicale en application du paragraphe 16(2) de la Loi, il satisfait aux exigences prévues aux paragraphes 30(2) et (3).", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-9", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 16–17", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "CIC has also produced a policy document entitled ENF 2 – Evaluating Inadmissibility (ENF 2) which is intended to assist visa offices in assessing misrepresentation. While such guidelines or operational manuals do not have the force of law, they have been recognized by this Court as valuable guidelines to immigration officers in carrying out their duties (Canada (Minister of Public Safety and Emergency Preparedness) v Martinez-Brito, 2012 FC 438 at para 46; Baker v Canada (Minister of Citizenship and Immigration), [1991] 2 SCR 817 [Baker]; Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at para 85).\n\nENF 2 states that the purpose of the misrepresentation provisions is to ensure that applicants provide complete, honest and truthful information in every manner when applying for entry into Canada (section 9.1) and that persons who misrepresent or withhold material facts, either directly or indirectly, relating to a relevant matter that induces or could induce an error in the administration of the Act are inadmissible to Canada pursuant to subsection 40(1)(a) of the IRPA. Misrepresentation and withholding are defined as direct and indirect misrepresentation (section 9.2). The document also describes the principles applicable to relevancy as well as materiality and provides examples of these (section 9.4). It also addresses errors in the administration of the IRPA (section 9.5). Issues", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-10", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 18–20", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "I would frame the issue in this matter as being whether it was reasonable for the Officer to conclude that there was a material misrepresentation. Standard of Review [18] The majority of the Supreme Court has held that “[a]n exhaustive analysis is not required in every case to determine the proper standard of review.” Courts must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision-maker with regard to a particular category of question (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paras 57 and 62 [Dunsmuir]; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 53 [Khosa]).\n\nThis Court has previously held that the standard of review to be applied when determining whether an immigration officer made a reviewable error in concluding that an applicant made a material misrepresentation pursuant to subsection 40(1)(a) of the IRPA is reasonableness. Misrepresentation is an issue of mixed fact and law and is therefore reviewable on the reasonableness standard (Oloumi v Canada (Minister of Citizenship and Immigration), 2012 FC 428 at para 12 [Oloumi]; Karami v Canada (Minister of Citizenship and Immigration), 2009 FC 788 at para 14).\n\nWhen reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility of the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir, above, at para 47; Khosa, above at para 59). Positions of the Parties The Applicant", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-11", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 21–24", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "The Applicant’s position is that there was no misrepresentation but, even if there was, it was not material.\n\nThe Applicant submits that he brought the error to the attention of the immigration consultant who was assisting him and that he believed that the error would be corrected before the consultant submitted the application. He was not dishonest and did not knowingly misrepresent his immigration history. He reasonably and honestly believed at the time the application was made that he was not withholding material information. In this regard he relies on Medel v Canada, [1990] FCJ No 318 (CA)(QL) [Medel] and distinguishes Oloumi, above, and Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315 [Haque] on their facts. He also submits that he responded to the fairness letter in an effort to explain the error and provided copies of his study visas and his work permits.\n\nFurther, the Applicant submits that only if information affects the process undertaken or the final decision will it be considered to be material (ENF 2; Ali v Canada (Minister of Citizenship and Immigration), 2008 FC 166 [Ali]). Here the answer to the question of whether he had previously been denied a visa was not material to the process because the application was complete and could be processed regardless of the answer provided. Nor did his answer put into doubt other important information about himself. The Respondent\n\nThe Respondent submits that the Applicant’s failure to disclose the previous temporary resident visa application constituted a material misrepresentation.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-12", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 25–26", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "The Respondent refers to the requirements of the IRPA, the IRPA Regulations as well as ENF 2 and concludes that the Officer properly applied these provisions which required the Applicant to provide complete and truthful information. The failure to disclose the previous temporary residency visa refusal was a relevant matter to weigh when considering the Applicant’s subsequent application and could have induced an error in the administration of the IRPA. Accordingly, the failure to disclose this matter renders the Applicant inadmissible by virtue of section 40 of the IRPA and the Decision is therefore, reasonable. The Respondent relies on Oloumi and Haque, both above, in support of its position.\n\nThe Respondent submits that the Applicant was aware of the error in his application and, while he may have brought this to the attention of his immigration consultant, he himself signed and declared the application to contain truthful answers. Accordingly, this error was not beyond his control, he was alive to it and could and should have reviewed the application prior to signing it to ensure that the error had been rectified and that the application was accurate. Therefore, the Applicant cannot now claim that he honestly and reasonably believed in the veracity of the answers (Oloumi, above, Khorasgani v Canada (Minister of Citizenship and Immigration), 2012 FC 1177 at paras 14-18). The Respondent submits that the Applicant’s reliance on Medel, above is misplaced in the circumstances of this case.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-13", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 27", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "Further, in response to the fairness letter, the Applicant provided a statutory declaration stating that he had never engaged in any unauthorized full time employment while a holder of an OCWP and that he had never received a request from an immigration officer to surrender his OCWP. The Officer examined the file and determined that this contradicted the Applicant’s own application, the CIC record and other evidence. Accordingly, it was open for the Officer to conclude that the Applicant had continued to be dishonest. This indicated a pattern of providing untruthful information in breach of the Applicant’s statutory duty of candour and therefore justified the Officer’s decision. Analysis", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-14", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 28", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "In Oloumi, above, Justice Tremblay-Lamer describes general principles arising from this Court’s treatment of section 40 of the IRPA which are summarized below together with other such principles arising from the jurisprudence: - Section 40 is to be given a broad interpretation in order to promote its underlying purpose (Khan v Canada (Minister of Citizenship and Immigration), 2008 FC 512 at para 25 [Khan]); - Section 40 is broadly worded to encompasses misrepresentations even if made by another party, including an immigration consultant, without the knowledge of the applicant (Jiang v Canada (Minister of Citizenship and Immigration), 2011 FC 942 at para 35 [Jiang]; Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at paras 55-56 [Wang]); - The exception to this rule is narrow and applies only to truly extraordinary circumstances where an applicant honestly and reasonably believed that they were not misrepresenting a material fact and knowledge of the misrepresentation was beyond the applicant’s control (Medel, above); - The objective of section 40 is to deter misrepresentation and maintain the integrity of the immigration process.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-15", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 28", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "To accomplish this, the onus is placed on the applicant to ensure the completeness and accuracy of their application (Jiang, above, at para 35;Wang, above, at paras 55-56); - An applicant has a duty of candour to provide complete, honest and truthful information in every manner when applying for entry into Canada (Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848 at para 41; Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at para 15); - As the applicant is responsible for the content of an application which they sign, the applicant’s belief that he or she was not misrepresenting a material fact is not reasonable where they fail to review their application and ensure the completeness and veracity of the document before signing it (Haque, above, at para 16; Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 450 at para 31 [Cao]); - In determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose (Oloumi, above, at para 22); - A misrepresentation need not be decisive or determinative. It is material if it is important enough to affect the process (Oloumi, above, at para 25); - An applicant may not take advantage of the fact that the misrepresentation is caught by the immigration authorities before the final assessment of the application. The materiality analysis is not limited to a particular point in time in the processing of the application. (Haque, above, at paras 12 and 17; Khan, above, at paras 25, 27 and 29; Shahin v Canada (Minister of Citizenship and Immigration), 2012 FC 423 at para 29 [Shahin]);", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-16", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 29–30", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "Here, the Applicant submits that he had no knowledge of the misrepresentation which was caused by his immigration consultant’s failure to correct a clerical error. The Applicants submits that he instructed the consultant to change the answer of “no” to “yes” in response to the question “Have you ever been refused any kind of visa, admission or been ordered to leave Canada or another country?” However, that the consultant failed to do so before submitting the application.\n\nAs noted above, subsection 40(1)(a) is broadly worded as to include misrepresentations even if made by another party without the knowledge of the applicant, the general rule being that a misrepresentation can occur without the applicant’s knowledge (Jiang, above, at para 35; Cao; above, at para 31; Haque, above, at para 15;Wang, above, at paras 55-56; Shahin, above, at para 26).", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-17", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 31", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "While an exception to this principle arises where an applicant can show that he or she honestly and reasonably believed that they were not withholding material information (Medel, above), this exception is narrow. As the court stated in Oloumi, above: [35] Despite being frequently cited, the “exception” referred to in this passage has received limited application. Its originating case, Medel, above, involved an unusual set of facts: the applicant was being sponsored by her husband, but unbeknownst to her the husband withdrew his sponsorship. Canadian officials then misled the applicant by asking her to return the visa because they claimed it contained an error. They implied it would be returned to her, corrected. The applicant had English-speaking relatives inspect the visa and, after they assured her that nothing was wrong with it, she used it to enter Canada. The Immigration Appeal Board found her to be a person described in section 27(1)(e) of the former Immigration Act, 1976, SC 1976-77, c 52 [now RSC 1985, c I-2)], i.e. that she had been “granted landing… by reason of any fraudulent or improper means”. This finding was set aside by the Federal Court of Appeal because the applicant had “reasonably believed” that she was not withholding information relevant to her admission. [36] When considered within its factual context, therefore, the exception in Medel is relatively narrow. As Justice MacKay noted while distinguishing the case before him in Mohammed v Canada (Minister of Citizenship & Immigration), 1997 CanLII 5084 (FC), [1997] 3 FC 299: 41 The present circumstances may also be distinguished from those in Medel on the basis that the information which the applicant failed to disclose was not information regarding which he was truly subjectively unaware.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-18", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 31–32", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "The applicant in the present case was not unaware that he was married. Nor was it information, as in Medel, the knowledge of which was beyond his control. This was not information which had been concealed from him or about which he had been misled by Embassy officials. The applicant's alleged ignorance regarding the requirement to report such a material change in his marital status and his inability to communicate this information to an immigration officer upon arrival does not, in my opinion, constitute “subjective unawareness” of the material information as contemplated in Medel. Furthermore, I emphasize that a determinative factor in the Medel case was that the applicant had reasonably believed that she was not withholding information from Canadian authorities. In contrast, in the case before this Court the applicants did not act reasonably—the principal applicant failed to review his application to ensure its accuracy.\n\nIn Haque, above, the applicants therein similarly argued that the misrepresentations were not intentional and that it was their consultant who erred in filling out the application. Justice Mosley rejected this argument and stated the following: [15] […] Nonetheless, he signed the application and so cannot be absolved of his personal duty to ensure the information he provided was true and complete. This was expressed succinctly by Justice Robert Mainville at para 31 of Cao, supra: The Applicant signed her temporary residence application and consequently must be held personally accountable for the information provided in that application. It is as simple as that.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-19", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 33", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "The present case is also factually very similar to Diwalpitiye v Canada (Minister of Citizenship and Immigration), 2012 FC 885 [Diwalpitiye]. The applicant therein indicated on his application form that he had never applied for, or been refused, immigration status in Canada. When the officer raised this as a concern in a fairness letter, the applicant responded by explaining that he had previously applied for a temporary resident visa, which was refused, but a subsequent application was successful. While he admitted this error in completing the application form, he requested that his application be processed because the error was merely an oversight. Justice Rennie found that the applicant had not persuaded the Court that it was unreasonable for the officer to find this to be a material misrepresentation.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-20", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 34–36", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "In my view, the Applicant in this case clearly made a misrepresentation by failing to disclose the prior CIC Los Angeles refusal to issue a temporary residency visa in his October 2012 application. He was aware of the error in his application and was responsible for ensuring that, when submitted, his application was accurate and truthful. However, he failed to review the application before it was submitted. Further, the fact of the prior refusal and of the identified clerical error in his application and whether or not it had been corrected was information that was within his control. The Applicant therefore failed to demonstrate that he honestly and reasonably believed that he was not withholding potentially material information. This situation does not, therefore, fall within the narrow exception found in Medel, above. It was reasonable for the Officer to conclude that the Applicant had not answered all of the questions in his application truthfully as required by subsection 16(1) of the IRPA and had misrepresented that fact.\n\nThis leaves only the question of whether the misrepresentation was material.\n\nSubsection 40(1)(a) of the IRPA states that a foreign national is inadmissible for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. ENF 2 gives as an example of a situation constituting misrepresentation, one where an applicant fails to disclose that they recently applied for a visa to Canada.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-21", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 37–38", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "As noted above, in determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose. To be material, a misrepresentation need not be decisive or determinative. It will be material if it is important enough to affect the process. The wording of section 40 confirms that a misrepresentation does not actually have to induce an error, it is enough that it could do so (IRPA, subsection 40(1)(a); Oloumi, above, at paras 22 and 25; Haque, above, at para 11; Mai v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 101 at para 18; Nazim v Canada (Minister of Citizenship and Immigration), 2009 FC 471)).\n\nIn Haque, above, the applicant failed to disclose that he had formerly lived and studied in the United States and omitted or misrepresented details with respect to his place of residence, education and employment history. The deciding officer discovered the omission upon a review of CIC’s records. This Court held that the withheld information was material to the application as, without it, a visa could have been issued to the applicant without the required police and conduct certificates from the United States, thereby precluding a necessary investigation and inducing an error in the administration of the IRPA.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-22", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 39–41", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "In Oloumi, above, a fraudulent English test was submitted as part of an application for permanent residence in the Federal Skilled Worker class. This Court held that the misrepresented fact was material because federal skilled workers must demonstrate language proficiency to be accepted. The false document could have induced an error in the administration of the IRPA because it could have been relied upon by a decision-maker to conclude that the applicant had demonstrated language proficiency.\n\nIn the present case, the Respondent submits that the Officer could have been prevented from undertaking an appropriate investigation and verification process and, therefore, could have erroneously determined that the Applicant met all the requirements of the IRPA had the Officer relied on the Applicants denial of a prior visa refusal. The misrepresentation was therefore material as it could have affected the process.\n\nIn my view, the misrepresentation in this case was material.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-23", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 42", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "The Officer does not specify what investigation and verification process potentially could have been bypassed as a result of the misrepresentation. However, section 9.5 of ENF 2 states that officers are required to be satisfied that a person meets the requirements of the IRPA and is not inadmissible. To make these determinations officers decide what procedures, including investigations, interviews and verifications are required. Some procedures are required by law, others are administrative. Given this discretion, and although it would have been preferable for the Officer to have been more specific, the failure to do so is not fatal. In any event, had he relied solely on the application which did not disclose the prior visa refusal, this could have induced an error in the administration of the IRPA as he could have erroneously issued a visa to the Applicant.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-24", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 43–44", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "I also cannot accept the Applicant’s submission made when appearing before me that, because CIC has access to the whole of his immigration history, an incorrect answer in his application is not material. His submission was that the incorrect answer did not affect the process because it was caught by CIC before a decision was rendered. This reasoning is contrary to the object, intent and provisions of the IRPA which require applicants for temporary residency visas to answer all questions truthfully. The penalty for failing to do so is that an applicant may be found to be inadmissible to Canada if the misrepresentation induces or could induce an error in the administration of the Act. It matters not that CIC may have the ability to catch, or catches, the misrepresentation. What matters is whether the misrepresentation induced or could have induced such an error. Accordingly, applicants who take the risk of making a misrepresentation in their application in the hope that they will not be caught but, if they are, that they can escape penalty on the premise of materiality, do so at their peril.\n\nNor was the misrepresentation cured by the Applicant��s response to the fairness letter. In this regard Justice Mosley in Haque, above, stated that “this Court has rejected the argument that paragraph 40(1)(a) is inapplicable where the misrepresentation is “corrected”: (Khan v. Canada (Minister of Citizenship and Immigration), 2008 FC 512 at paras 25, 27 and 29).”", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-25", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 45", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "At the hearing before me the Applicant also submitted that because, between the time when the temporary residency visa was refused in Los Angeles and the time of the refusal in Seattle he was issued a work permit, this rendered the first refusal immaterial as the immigration authorities were clearly satisfied with his subsequent application. I cannot accept this reasoning. First, the refused applications were both for temporary residency visas, the work permit was a distinct application. Secondly, it is not known if the Applicant was requested to or did disclose the refused temporary residency when he applied for the work permit as neither the Applicant nor the Respondent led evidence on this point. And finally, the question asked on the temporary visa application was whether the Applicant had ever been refused any kind of visa, thus it was incumbent upon him to disclose the prior refusal regardless of the subsequent issuance of the work permit.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-26", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 46–47", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "In addition to the failure to disclose the refusal, which was his statutory and duty of candour, the Applicant stated in his Statutory Declaration that he had never engaged in any unauthorized full time employment while holding an OCWP. However, this is contradicted by Attachment A of his October 11, 2012 application and the September 7, 2012 letter from IVIS Inc., which states that when the Applicant completed his education at NAIT, he started full time work on December 20, 2012 with IVIS Inc. This means that from December 20, 2010 until he was issued a work permit on June 1, 2012, he was working full time while not a student and holding only an OCWP thereby contravening the conditions of his prior admission to Canada. Accordingly, the Officer’s finding that he was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary residence based on the prior contravention was reasonable..\n\nIt should be noted, however, that the Officer’s assertion in the fairness letter that the Applicant was requested to surrender his OCWP but failed to comply and that this was the primary reason for the refusal of his Los Angeles application, is not supported by the CTR.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-27", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 48", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "The Respondent filed an affidavit of Ms. Leah Gabretensae, Admissions Unit Supervisor at CIC in response to the subject application. It attaches as an exhibit an email dated July 12, 2013 from Ms. Gabretensae to counsel for the Respondent stating that she had spoken to Rachel, no last name, at Norquest who confirmed that the Applicant was enrolled there from 2007 to April 24, 2009 taking upgrading courses with the intent of then entering the practical nursing program. He did not continue there beyond April 2009. The affidavit also attaches as an exhibit an email dated July 13, 2013 from Ms. Kathy Galloway to Ms. Gabretensae and counsel for the Respondent stating that NAIT had checked its records and advised her that the Applicant began his studies there in January 2010 and completed the one year Water and Waste Management Technician program in December 2010 with honours. The affidavit goes on to state that the designated institutional representative (DIR) “at the post-secondary educational institution where the Applicant was enrolled at that time [when the April 24, 2009 OCWP was issued] would have informed the Applicant that the Applicant was required to surrender the Work Permit to the nearest CIC office once he no longer met the eligibility criteria”. The affidavit states that it (the affidavit) was made for the purpose of opposing the Applicant’s application for judicial review.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-28", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "paras 49–50", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "It appears that the purpose of the affidavit was to bolster the CTR which contains no record supporting the finding by the Officer that the Applicant was actually asked, but refused, to surrender his OCWP nor explaining why he was not in compliance with the OCWP at some time before a February 1, 2012 GMCS entry which stated this to be the case but at which time the Applicant was enrolled full time at NAIT. The affidavit evidence as to the general responsibilities of DIR’s in administering OCWP’s, including informing students of the surrender requirements, is not evidence that the Applicant was requested to and refused to surrender same. Moreover, it is trite law that new evidence is only admissible on judicial review to resolve issues of procedural fairness or jurisdiction which exceptions have no application in this case (Oloumi, above, at para 10; Alabadleh v Canada (Minister of Citizenship and Immigration), 2006 FC 716 at para 6; Albajjali v Canada (Minister of Citizenship and Immigration), 2013 FC 660 at para 12).\n\nHowever, even in the absence of an evidentiary basis for the assertion that the Applicant was requested to and refused to surrender the OCWP and that this was the primary reason for the Los Angeles refusal, there was, as set out above, a sufficient evidentiary basis in the record before the Officer to support the fact that the Applicant worked full time while holding only a OCWP, after graduation from NAIT, from December 20, 2010 to June 1, 2012.", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-64594-29", - "doc_type": "caselaw", - "act_code": "2013 FC 971", - "act_short": "Goburdhun", - "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", - "marginal_note": "para 51", - "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", - "part": "Federal Court", - "division": "", - "text": "The Applicant contravened the conditions of his admission to Canada on a prior occasion by working full time when not authorized to do so and he misrepresented this in his statutory declaration. He also misrepresented his prior temporary resident visa refusal. In my view, both misrepresentations were material. Accordingly, the Officer’s finding that he was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary resident and that he had made material misrepresentations pursuant to subsection 40(1)(a) of the IRPA was reasonable and defensible in respect to the facts and the law. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. No question of general importance for certification was proposed and none arises. “Cecily Y. Strickland” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-674-13 STYLE OF CAUSE: GOBURDHUN v MCI PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: August 27, 2013 REASONS FOR JUDGMENT AND JUDGMENT BY: STRICKLAND J. DATED: September 23, 2013 APPEARANCES: Ranbir S. Thind FOR THE APPLICANT Anna Kuranicheva FOR THE RESPONDENT SOLICITORS OF RECORD: Ranbir Thind & Associates Edmonton, Alberta FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada Edmonton, Alberta FOR THE RESPONDENT", - "current_to": "2013-09-23", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" - }, - { - "id": "fc-492842-1", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 1", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Lorebeth Garcia’s application for permanent residence as a member of the live-in caregiver class was refused because her husband, Joresce Ballesteros, was found criminally inadmissible to Canada. That inadmissibility was based on a bar fight in the Philippines in 2006 that resulted in charges against Mr. Ballesteros that were later withdrawn when the complainant filed an Affidavit of Desistance stating that the accused parties, including Mr. Ballesteros, had no intention to kill or injure him and that if called to testify, his testimony would completely exonerate the accused. A visa officer concluded that Mr. Ballesteros’ acts amounted to assault causing bodily harm under sections 265 and 267 of the Criminal Code, RSC 1985, c C-46, and that despite the withdrawal of the charges there were reasonable grounds to believe that the offence had occurred. They therefore concluded Mr. Ballesteros was inadmissible pursuant to paragraph 36(1)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-2", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 2–4", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "For the reasons given below, I agree with Ms. Garcia that the visa officer’s decision was unreasonable and unfair. The visa officer did not undertake the requisite assessment of the elements of the Canadian offence, and in particular the defence of self-defence that Mr. Ballesteros had maintained since the charges were filed. Nor did the visa officer adequately assess the evidence as a whole, set out why they did not accept Mr. Ballesteros’ evidence, or explain why the evidence continued to provide reasonable grounds to believe an offence was committed notwithstanding the complainant’s Affidavit of Desistance. Finally, it was unreasonable for the visa officer to assume the Affidavit of Desistance and subsequent withdrawal of the charges resulted from a settlement in the absence of evidence to that effect. It was also unfair to have done so without giving Ms. Garcia notice of this issue and an opportunity to respond thereto.\n\nThe application for judicial review is therefore allowed.\n\nWhile phrased somewhat differently, the primary issues raised by Ms. Garcia on this application for judicial review are the following: Did the visa officer err in finding that Mr. Ballesteros was inadmissible pursuant to paragraph 36(1)(c) of the IRPA by failing to undertake the required analysis of the offence and/or unreasonably assessing the evidentiary record? Did the visa officer breach the duty of procedural fairness in reaching their decision?", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-3", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 5–6", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "The parties agree that the first of these issues goes to the merits of the visa officer’s decision and is reviewable on the reasonableness standard: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25. To assess the reasonableness of a decision, the Court considers “the outcome of the administrative decision in light of its underlying rationale, in order to ensure that the decision as a whole is transparent, intelligible and justified”: Vavilov at paras 15. In doing so, the Court considers the administrative context of the decision, including the institutional setting and the evidence and submissions before the decision maker: Vavilov at paras 89–96, 125–128. A reasonable decision has an “internally coherent and rational chain of analysis” and is “justified in relation to the facts and law that constrain the decision maker”: Vavilov at paras 85, 90, 99, 105–107. While reasonableness review is “robust,” the Court will not set aside a decision unless satisfied there are “sufficiently serious shortcomings such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov at paras 12–13, 99–100.\n\nThe second issue goes to the process leading to the decision, rather than the substance of the decision itself. On such issues, the Court asks whether a fair and just process was followed, having regard to all of the circumstances: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54. Such review is “best reflected in the correctness standard,” although no standard of review is actually being applied: Canadian Pacific at para 54, quoting Eagle’s Nest Youth Ranch Inc v Corman Park (Rural Municipality #344), 2016 SKCA 20 at para 20.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-4", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 7–8", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "I note for completeness that Ms. Garcia’s application for judicial review also raised an issue regarding the visa officer’s failure to consider deemed rehabilitation. That argument was withdrawn at the hearing.\n\nMs. Garcia has worked in Canada as a live-in caregiver since 2009. She applied for permanent residence in 2011 as a member of the then “live-in caregiver class” and added her husband, Mr. Ballesteros, as an accompanying dependent in the application in 2014. Ms. Garcia’s application was governed by, among other provisions, subparagraph 72(1)(e)(i) of the Immigration and Refugee Protection Regulations, SOR/2002-227, which requires a foreign national in Canada seeking to become a permanent resident to establish that “they and their family members, whether accompanying or not, are not inadmissible.”", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-5", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 9", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Subsection 36(1) of the IRPA sets out grounds for inadmissibility for serious criminality. While the only applicable provision in the current case is paragraph 36(1)(c), I also reproduce paragraph 36(1)(b) as it is relevant to some of the discussion below: Serious criminality Grande criminalité 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for 36 (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : […] […] (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-6", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 10–12", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Section 33 of the IRPA provides that the facts that constitute criminal inadmissibility include those for which there are “reasonable grounds to believe” have occurred: Rules of interpretation Interprétation 33 The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33 Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.\n\nThe Supreme Court of Canada has described this standard as being more than mere suspicion, but less than a balance of probabilities: Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114. Reasonable grounds exist “where there is an objective basis for the belief which is based on compelling and credible information”: Mugesera at para 114. The decision maker must be satisfied that these facts as found on the “reasonable grounds to believe” standard do constitute an offence, as a question of law: Mugesera at para 116.\n\nThe relevant issue addressed by the visa officer was therefore whether there were reasonable grounds to believe Mr. Ballesteros, as a family member of Ms. Garcia, had committed an act in the Philippines that is an offence there and that, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-7", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 13–14", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Mr. Ballesteros and four of his companions were charged in the Philippines with “frustrated homicide.” The charge arose from an event in June 2006 in which Mr. Ballesteros’ group was involved in a fight outside a karaoke bar in Echague with two other men, Joenard Humiwat and Jacinto Balisi. The complainant, Mr. Humiwat, alleged he was hit with a beer bottle by one of Mr. Ballesteros’ friends, and was then severely beaten by Mr. Ballesteros’ group. Mr. Humiwat suffered numerous injuries including traumatic brain injury, facial injuries, and a skull fracture.\n\nThe five co-accused filed a joint affidavit in the Philippine criminal proceeding. They alleged that there had been earlier verbal altercations in the karaoke bar between the co-accused on the one hand and Mr. Humiwat and Mr. Balisi, on the other. After Mr. Ballesteros’ group left the bar, Mr. Balisi stabbed one of them without warning. In the ensuing melee, Mr. Ballesteros was also stabbed when he tried to intervene. The co-accused agreed that there was a fistfight, but asserted that they were acting in self-defence and denied any of them hit Mr. Humiwat with a bottle. This directly contradicted Mr. Humiwat’s story. Mr. Ballesteros in particular swore in the affidavit that it was physically impossible for him to have attacked Mr. Humiwat since he had already been injured from the stabbing.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-8", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 15–17", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "The prosecutor in the case concluded that despite the co-accused’s assertions, these were matters of defence “best appreciated after a full-blown trial in court.” He therefore signed a resolution recommending the filing of an information. Mr. Ballesteros and the other accused filed a motion seeking reconsideration of that resolution. In an order dismissing the motion, the prosecutor found that there was “enough ground to believe that they committed the crime charged and they are probably guilty thereof and should be held for trial.” At the same time, the prosecutor noted that there were matters of credibility and that the only issue for him was whether there was sufficient evidence to establish a belief that the crime had been committed. He also concluded that the defence of self-defence was something the accused had the burden of proving and that they “must be given the chance to prove their defense before the proper court.” An Information was therefore laid in March 2007.\n\nIn March 2009, the prosecutor filed a motion to dismiss the case. The motion was based on Mr. Humiwat’s sworn “Affidavit of Desistance,” in which he asserted that: what transpired was “but a product of misapprehension of facts and misunderstanding”; the accused had no intention to kill or injure him; he was no longer interested in prosecuting the case or standing as witness; and should he be called to testify, he would “testify so as to completely exonerate [the accused] from any civil or criminal liability.”\n\nThe Information against Mr. Ballesteros and the others was dismissed by order of a judge on March 5, 2009.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-9", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 18–19", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "The Global Case Management System (GCMS) notes show that in December 2018, a visa officer in Manila reviewed Mr. Ballesteros’ criminal file from the Philippines. After referring to the charge laid against Mr. Ballesteros, the visa officer’s analysis proceeded as follows: Said case was dismissed on 05 March 2009 following years of hearings that culminated in the complainant executing an affidavit of desistance stating that he was no longer interested in pursuing the case. On his written explanation, Joresce states that the physical injuries sustained by the complainant was a result of the complainant and his friend’s attack on him and his friends. Meanwhile, in his affidavit, the complainant states that one of Joresce’s companions hit him with a bottle of beer on the head which caused him to fall to the ground while the rest, Joresce included, started to beat him up. While the complainant executed an affidavit of desistance, based on the court documents on file including the medical cert of the complainant, I am satisfied that Joresce committed an act which, if committed in Canada can be equated to assault causing bodily harm as described in Section 265(1) of the Canadian Criminal Code […] [Emphasis added.]\n\nThe remainder of the visa officer’s analysis in the December 2018 entry simply reproduces portions of sections 265 and 267 of the Criminal Code, and concludes that Mr. Ballesteros is inadmissible pursuant to paragraph 36(1)(c) of the IRPA.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-10", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 20", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Following this entry, a “fairness letter” was issued to Ms. Garcia, stating that Mr. Ballesteros had been found inadmissible pursuant to paragraph 36(1)(c) of the IRPA and providing an opportunity to make submissions on the issue. Ms. Garcia responded with submissions and a statutory declaration from Mr. Ballesteros, each of which underscored his version of the events at the bar and his view that he was wrongly charged. Mr. Ballesteros also repeated that he and his companions were the first to have filed a complaint with the police against Mr. Balisi, and that the complaint against Mr. Ballesteros and his friends had been brought to respond to the complaint against Mr. Balisi. Ms. Garcia noted the dismissal of the charges and cited this Court’s decision in Arevalo Pineda for the principle that dismissal of charges is prima facie evidence that the crimes were not committed: Arevalo Pineda v Canada (Citizenship and Immigration), 2010 FC 454 at para 31.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-11", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 21", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "The file was again referred to Manila. The same officer considered the file and in further GCMS notes dated July 2019 focused on the withdrawal of the charge and the Affidavit of Desistance: I had already taken note of the dismissal of the case during the initial criminality review. Nonetheless, an affidavit of desistance executed by the complainant does not necessarily mean that the act Joresce was accused of was not committed by him. Given the lengthy process of trial in the Philippines, it is common practice to settle cases outside of the court. If all parties are amenable to the terms of the settlement, the workaround is for the complainant to execute an affidavit of desistance stating that they misunderstood the facts and that they are no longer willing to pursue with the case. This is in view of having the case dismissed for reason that there will no longer be a witness to testify in court and the accused’s guilt can therefore not be established beyond reasonable doubt. Therefore, despite the dismissal, the officer must still thoroughly review the circumstances that led to the filing of the charge including the evidences that have been submitted in order to make an accurate admissibility assessment. I have considered the reply to the procedural fairness letter however the information included therein does not change my assessment on the criminality of PA-CDA’s spouse. Based on the information before me, I am still satisfied that Joresce is criminally inadmissible to Canada under A36(1)(c). [Emphasis added.]", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-12", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 22–23", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Ms. Garcia’s file was referred to Edmonton, where a visa officer relied on the Manila officer’s conclusion in reaching the determination that Ms. Garcia was inadmissible and refusing her application for permanent residence. Although the Edmonton visa officer said their decision was made based on the information before them, they conducted no independent analysis of the matter. The reasons for the refusal are therefore effectively those of the officer in Manila as set out in the two GCMS notes of December 2018 and July 2019, and the parties argued the application on this basis.\n\nThe visa officer concluded there were reasonable grounds to believe Mr. Ballesteros committed acts that if committed in Canada, would constitute the offence of assault causing bodily harm. To reasonably reach this conclusion, the visa officer had to assess whether there were reasonable grounds to believe Mr. Ballesteros committed acts that would meet the elements of the Canadian offence. It is worth noting that in Vavilov, the Supreme Court used criminality findings in the immigration context as an example of the legal constraints imposed by precedent. The Court underscored that it would “clearly not be reasonable” for an immigration tribunal considering whether an applicant’s act constitutes a criminal offence under Canadian law to adopt an interpretation inconsistent with how Canadian criminal courts have interpreted it: Vavilov at para 112. While the evidentiary standard applicable in the context of criminal inadmissibility is lower than the standard applicable in a criminal prosecution, the question of law as to what constitutes an offence remains the same: Mugesera at para 116.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-13", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 24–25", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "As stated above, the visa officer reproduced the definition of assault in subsection 265(1) of the Criminal Code and the language of subsection 267(b), which provides for a maximum ten-year sentence where an assault causes bodily harm. While the visa officer did not specifically enumerate the various elements of the offence, an administrative decision need not take the form of a jury charge or a criminal court decision: Vavilov at paras 91–92. Nonetheless, for reasons to be “justified,” it must be clear that the analysis required by the applicable statutory provision has been undertaken in some form or other: Vavilov at paras 95–96, 108.\n\nHere, the visa officer clearly considered certain elements of the offence, including the existence of bodily harm (referring to the “medical cert of the complainant”) and whether Mr. Ballesteros had been involved in the assault on Mr. Humiwat. Ms. Garcia argues, however, that the officer did not address the issues of whether Mr. Ballesteros himself caused Mr. Humiwat’s injuries and whether his actions were undertaken in self-defence.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-14", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 26", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "I question whether the visa officer necessarily had to address whether Mr. Ballesteros himself caused the injuries, in light of section 21 of the Criminal Code and the principle of accessorial liability. However, I need not decide that issue since I agree it was unreasonable for the officer not to undertake any material assessment of the issue of self-defence. Subsection 34(1) of the Criminal Code outlines a defence to an offence in Canada based on the use or threat of force: Defence – use or threat of force Défense – emploi ou menace d’emploi de la force 34 (1) A person is not guilty of an offence if 34 (1) N’est pas coupable d’une infraction la personne qui, à la fois : (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; a) croit, pour des motifs raisonnables, que la force est employée contre elle ou une autre personne ou qu’on menace de l’employer contre elle ou une autre personne; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and b) commet l’acte constituant l’infraction dans le but de se défendre ou de se protéger — ou de défendre ou de protéger une autre personne — contre l’emploi ou la menace d’emploi de la force; (c) the act committed is reasonable in the circumstances. c) agit de façon raisonnable dans les circonstances", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-15", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 27–28", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Mr. Ballesteros’ evidence, both before the criminal court in the Philippines and in his statutory declaration filed with the visa officer, was that force had been used against both the friend who had been stabbed and himself, and that all physical acts he took against Mr. Humiwat were undertaken for the purpose of defending himself and his friends from Mr. Humiwat and Mr. Balisi. While Ms. Garcia’s submissions in response to the fairness letter (filed by her former counsel) could have been clearer on the subject, both those submissions and Mr. Ballesteros’ statutory declaration raised the issue of self-defence, which was central to Mr. Ballesteros’ response to the allegation that he had committed a crime.\n\nTo assess whether an act constitutes an offence in Canada it is necessary to consider not only the elements of the offence but the applicable defences: Li v Canada (Minister of Citizenship and Immigration), [1997] 1 FC 235 (CA) at para 19. While Li was decided in the context of an equivalency assessment, discussed further below, in my view the principle applies equally whether the issue is equivalency or simply whether the acts constitute an offence in Canada. The Minister did not argue otherwise. Rather, the Minister argues that the visa officer effectively considered the issue of self-defence, since the Philippine prosecutor considered the self-defence argument and decided to nonetheless dismiss the co-accused’s motion for reconsideration and lay an information.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-16", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 29", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "I cannot accept the Minister’s arguments for a number of reasons. First and foremost, there is no indication in the GCMS notes that the visa officer materially considered the issue of self-defence or relied on the dismissal of the reconsideration motion as a basis for reaching a conclusion on self-defence. The only reference in the GCMS notes to the question of self-defence is the statement in the December 2018 notes that Mr. Ballesteros “states that the physical injuries sustained by the complainant was a result of the complainant and his friend’s attack on him and his friends.” Having summarized Mr. Ballesteros’s evidence in this way, the visa officer gave no further consideration to the issue of self-defence. As the Supreme Court noted in Vavilov, a decision maker’s reasons are the primary mechanism by which they communicate the rationale for their decision and show they have listened to the parties: Vavilov at paras 81, 84, 127. Absent any reference to the question of self-defence in the visa officer’s reasons, this Court should not make assumptions about the visa officer’s reasoning on that significant issue: Vavilov at paras 96, 128.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-17", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 30–31", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Further, the visa officer is tasked with assessing whether there are reasonable grounds to believe that Mr. Ballesteros committed acts that would constitute an offence in Canada. As the Minister conceded in argument, the visa officer cannot simply delegate that decision-making to a foreign prosecutor. In any case, to the extent that the Philippine prosecutor considered that the defence of self-defence needed to go to trial, they did so in the context of Philippine law. The visa officer had to assess whether there were reasonable grounds that the acts would have constituted an offence in Canada, something the Philippine prosecutor did not address.\n\nIt is also important to note that the prosecutor’s decision on the reconsideration motion was only that there was sufficient evidence to lay charges against the co-accused. As the parties agree, evidence surrounding charges can be taken into consideration, but the charges themselves cannot be used as evidence of criminality: Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326 at para 50. While the visa officer was entitled to consider the evidence leading to the laying of charges, they could not rely on the mere decision to lay charges.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-18", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 32–34", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Finally, the evidentiary record before the visa officer was very different from the evidentiary record before the Philippine prosecutor when the reconsideration motion was dismissed. In addition to Mr. Ballesteros’ further statutory declaration, the visa officer had the Affidavit of Desistance signed by Mr. Humiwat and the dismissal of the charges in the Philippines. This evidence is addressed further below, but the fact that the reconsideration motion was decided based on a different record further undermines the Minister’s argument that the visa officer implicitly assessed the self-defence issue through reliance on the reconsideration motion.\n\nGiven the availability of the defence of self-defence, and the importance of that defence to Mr. Ballesteros’ response to the criminal allegations, it was unreasonable for the visa officer not to have meaningfully addressed it before reaching a finding on admissibility.\n\nMs. Garcia also challenges the visa officer’s treatment of the evidence, particularly the evidence about who instigated the incident and the evidence related to the withdrawal of the charges. I agree with Ms. Garcia that the visa officer’s assessment of this evidence was unreasonable.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-19", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 35–36", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "As reproduced above, the visa officer in the December 2018 GCMS notes briefly addressed the difference between Mr. Ballesteros’ and Mr. Humiwat’s evidence as to who instigated the attack. However, the visa officer’s only analysis of this evidence was that “based on the court documents on file including the medical cert of the complainant,” they were satisfied that Mr. Ballesteros had committed the act. The complainant’s medical certificate, not surprisingly, speaks only to Mr. Humiwat’s injuries, which are not in issue. In my view, it is unreasonable in the circumstances for the visa officer’s analysis of the conflicting evidence on a material issue to be limited to the broad statement that their conclusion was “based on the court documents.”\n\nThe court documents in question included medical evidence confirming that Mr. Ballesteros’ friend suffered multiple stab wounds, and that Mr. Balisi was charged (also with “frustrated homicide”) for that attack, each of which arguably corroborated Mr. Ballesteros’ evidence. It also included not only Mr. Ballesteros’ evidence but that of the other accused, which similarly corroborated the account. The visa officer did not discuss this exonerating evidence or the further evidence contained in Mr. Ballesteros’ statutory declaration, and gave no reason why they chose not to accept or rely on that evidence. Nor did the officer give any indication of why they remained satisfied in the face of this evidence that Mr. Humiwat’s initial complaint was enough to establish reasonable grounds to believe Mr. Ballesteros had committed a crime.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-20", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 37", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Rather, the only consideration the visa officer addressed in any detail was the withdrawal of charges and associated Affidavit of Desistance. In the July 2019 GCMS notes, the visa officer discounted the Affidavit of Desistance because it was “common practice [in the Philippines] to settle cases outside of the court,” with an affidavit of desistance being part of the “workaround” if the parties are amenable to terms of settlement. However, as Ms. Garcia correctly points out, there was no evidence before the visa officer of there having been any settlement or terms of settlement associated with the affidavit. To the contrary, Mr. Ballesteros’ statutory declaration stated that “the reason why Joenard withdrew the charges against us and the case was dismissed” was that he realised that they had been the ones at fault. The situation is thus very different than that in Urdas, relied on by the Minister, in which there was evidence both that the dismissal of the complaint was the result of a settlement, and of the terms of that settlement: Urdas v Canada (Citizenship and Immigration), 2019 FC 131 at paras 15, 23, 27–28. While the Minister suggests that the visa officer did not conclude that a settlement occurred in this particular case, the only reason the visa officer’s discussion of settlements would have any relevance to the evidence before them would be if they reached such a conclusion.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-21", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 38–40", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Without any further evidence or rationale, it was unreasonable for the visa officer to speculate or assume that the Affidavit of Desistance was filed as a term of settlement and to discount its contents as a result. This is particularly so where the assumption (a) directly contradicts Mr. Ballesteros’ evidence regarding the reason for the withdrawal, and (b) implies that the sworn evidence in the Affidavit of Desistance was untrue. In the Affidavit of Desistance, Mr. Humiwat stated that Mr. Ballesteros had no intention to injure him, and that his evidence would “completely exonerate” Mr. Ballesteros and the other accused from any criminal liability. The visa officer effectively concluded that this evidence was not to be accepted based on their speculation that it was filed as part of a settlement.\n\nThis is significant given that the only evidence that Mr. Ballesteros committed acts that constitute assault causing bodily harm (as opposed to acts of self-defence) came from Mr. Humiwat’s earlier statement, which he effectively withdrew through the Affidavit of Desistance. Without further analysis, it was unreasonable for the visa officer to conclude, in essence, that Mr. Ballesteros was not to be believed and that Mr. Humiwat’s earlier statement gave rise to reasonable grounds to believe that the crime was committed notwithstanding his sworn withdrawal of material aspects of that statement.\n\nIn this regard, Ms. Garcia points to the conclusion in Arevalo Pineda that the dismissal of charges is prima facie evidence the crimes were not committed: Arevalo Pineda at para 31. The Minister agrees with this principle, but argues that this presumption can be rebutted based on the evidence and facts of the case.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-22", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 41", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "In this regard, I believe the approach taken in Red v Canada (Citizenship and Immigration), 2018 FC 1271, another case involving an affidavit of desistance as part of a withdrawal of charges in the Philippines, is instructive. At paragraph 28 of that decision, Justice Walker noted the following: The Affidavit of Desistance and the Order of the Trial Court are unequivocal. The elements of an offence under BPB 22 could not be established on the basis of the Applicant’s actions. The complainant, AsiaLink, swears in the Affidavit that its understanding of the facts was incorrect such that the prosecution of the case could not be successful. The Trial Court accepted the Affidavit of Desistance and withdrew the charge. I recognize that section 33 of the IRPA requires only that an officer have reasonable grounds to believe that an offence was committed by the Applicant outside of Canada. However, in light of the evidence in the record to the contrary, the Officer was required to explain in some detail the conclusion that an offence was committed. The Officer’s statement in the GCMS notes that the Applicant could not explain AsiaLink’s misunderstanding is not a sufficient explanation. [Emphasis added.]", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-23", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 42", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "The Minister relies on the subsequent decision in Urdas, in which Chief Justice Crampton upheld an inadmissibility finding despite the withdrawal of charges and an affidavit of desistance. Importantly, the officer’s decision in that case relied on various findings and facts, including Mr. Urdas’ own contradictory statements regarding the settlement of the charges, the fact that the complainant’s affidavit of desistance did not say Mr. Urdas did not commit the offence, and the presence of multiple witnesses in addition to the complainant: Urdas at paras 23–26. The Chief Justice distinguished Red on the basis that the affidavit of desistance in Red stated that there had been a “misaccounting and a misapprehension of facts,” whereas that in Urdas simply stated that the complainant was no longer certain the accused were the ones who stabbed them: Urdas at paras 25–26. The Chief Justice underscored that the dismissal of the charges required the officer to “exercise caution” and be satisfied that there were nonetheless reasonable grounds for the inadmissibility finding: Urdas at para 38. However, given the officer’s factual findings, it was reasonably open to them to reach such a conclusion in that case: Urdas at paras 38–39.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-24", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "para 43", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "In both Red and Urdas, the issue was whether the officer had reasonably assessed the evidence, including the affidavits of desistance. In Red, the Court concluded that given the affidavit of desistance, the officer needed to provide a greater explanation of the conclusion that an offence had been committed. In Urdas the officer did provide an adequate explanation and assessment of the evidence. Both cases therefore apply the same approach, which is consistent with Arevalo Pineda, namely that the withdrawal of charges is important, but not determinative, and that a reasonable decision must explain why the evidence supports a conclusion of inadmissibility despite the dismissal of charges and any affidavit withdrawing allegations. Ultimately, the question under paragraph 36(1)(c) remains whether there are objectively reasonable grounds to believe, based on compelling and credible information, that acts were committed which constitute an offence falling within that provision: Mugesera at para 114. The withdrawal of charges associated with the acts in the foreign jurisdiction is relevant evidence suggesting an offence may not have been committed, but it is not determinative.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-25", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 44–45", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "Here, the visa officer appears to recognize that their role was to “thoroughly review the circumstances that led to the filing of the charge,” including the evidence submitted. However, despite this statement, in my assessment they did not undertake such a thorough review. As a result, neither Ms. Garcia nor the Court are able to assess why the visa officer accepted that Mr. Humiwat’s original evidence remained sufficiently credible and compelling to conclude there were reasonable grounds to believe Mr. Ballesteros had committed acts that would be an offence in Canada, despite the witness having stated that their evidence would exonerate Mr. Ballesteros, and despite Mr. Ballesteros’ direct evidence to the contrary. Without such an assessment of the evidence, the decision lacks the justification, transparency, and intelligibility of a reasonable decision: Vavilov at paras 86, 99, 133.\n\nMs. Garcia also argues that the visa officer’s decision was unreasonable because it failed to conduct an “equivalency” analysis between the Philippine and Canadian offences in accordance with the Federal Court of Appeal’s decision in Hill v Canada (Minister of Employment and Immigration), [1987] FCJ No 47, 1 Imm LR (2d) 1 (CA). While I need not determine this argument given my conclusions above, I believe it worth discussion in light of the parties’ arguments on the issue.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-26", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 46–47", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "In Hill, the Federal Court of Appeal set out three ways in which an officer may conduct an “equivalency” analysis to determine whether a foreign offence “would constitute an offence” in Canada: (i) by comparing the precise wording in each statute to determine the essential ingredients of the respective offences; (ii) by examining the evidence adduced before the adjudicator to ascertain whether the evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings; or (iii) a combination of (i) and (ii).\n\nIn the present case, the visa officer did not undertake a comparison between the essential elements of the “frustrated homicide” offence with which Mr. Ballesteros was charged in the Philippines and the assault causing bodily harm offence in Canada. Ms. Garcia argues that an officer must at least describe the constituent elements of the Canadian and foreign offences, with reference to applicable provisions: Nshogoza v Canada (Citizenship and Immigration), 2015 FC 1211 at paras 27–31. Relying on Justice Diner’s decision in Liberal, she argues that mere reference to the provisions followed by a brief statement regarding their equivalence is not a reasonable analysis: Liberal v Canada (Citizenship and Immigration), 2017 FC 173 at paras 28–32.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-27", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 48–50", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "In my view, it is relevant to note that Hill, Nshogoza and Liberal, as well as the cases they rely on, were decided in the context of paragraph 36(1)(b) of the IRPA or its predecessor, as the applicant in each case had been convicted of a foreign offence: Nshogoza at para 1; Liberal at para 1; see also Li at paras 2–3; Brannson v Canada (Minister of Employment and Immigration), [1981] 2 FC 141 (CA) at pp 142–143; Kathirgamathamby v Canada (Citizenship and Immigration), 2013 FC 811 at paras 1, 24.\n\nAs set out above, paragraph 36(1)(b) is triggered where a party has been convicted of an offence outside Canada that, if committed here, would be an offence punishable by a maximum term of imprisonment of at least 10 years. This requires an assessment of whether the offence of which the individual was convicted outside Canada would also constitute an offence in Canada. This engages the equivalency question addressed in Hill.\n\nThe analysis under paragraph 36(1)(c) of the IRPA, however, pertains not to a conviction outside Canada or even a charge, but to an act committed by the individual. The paragraph has two requirements. First, the act must be “an offence” where it was committed. Second, the act must constitute an offence punishable by a maximum term of imprisonment of at least 10 years, if it were committed in Canada. Unlike paragraph 36(1)(b), the paragraph does not on its face require that there be any equivalence between the offences in the two jurisdictions; simply that the act be “an offence” where it was committed, and constitute “an offence” with a particular punishment in Canada.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-28", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 51–52", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "This difference has led this Court to question the applicability of the equivalency analysis to paragraph 36(1)(c): Victor v Canada (Public Safety and Emergency Preparedness), 2013 FC 979 at paras 35–37; Nguesso v Canada (Citizenship and Immigration), 2015 FC 879 at paras 208–210. Nonetheless, this Court has also held in a number of cases that paragraph 36(1)(c) does trigger the Hill equivalency analysis: Pardhan v Canada (Citizenship and Immigration), 2007 FC 756 at paras 9–10; Somal v Canada (Citizenship and Immigration), 2014 FC 891 at para 19; Singh v Canada (Citizenship and Immigration), 2019 FC 946 at paras 16–17; Cruz v Canada (Citizenship and Immigration), 2020 FC 455 at paras 42–43.\n\nIn my view, the reasoning in Victor and Nguesso regarding the applicability of the Hill equivalency analysis to paragraph 36(1)(c) is persuasive. In any event, as Justice Roy noted in Victor, Hill sets out three alternative methods that may be used in the analysis, and to the extent that the Hill analysis may be necessary under paragraph 36(1)(c), the second Hill method seems “particularly advisable”: Victor at para 45. To this, I would add the observation that if applying the second Hill method in the context of paragraph 36(1)(c), the evidence in question may not have been “adduced before the adjudicator” or “proven in the foreign proceedings,” since no conviction is necessary under the section.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-29", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 53–55", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "The Minister argues that the visa officer did undertake an adequate examination of whether the essential elements of the Canadian offence had been established on the evidence, and thereby followed the second Hill method. While I have concluded above that the visa officer’s analysis of the evidence and the elements was not reasonable, I cannot conclude that the decision was also unreasonable because it failed to adequately assess equivalency between the Philippine offence for which Mr. Ballesteros was charged and the Canadian offence of assault causing bodily harm.\n\nMs. Garcia argues that in addition to being unreasonable, it was unfair for the visa officer to rely on the “common practice to settle cases outside of the court” as a reason to discount the Affidavit of Desistance. She argues the visa officer apparently relied on extrinsic sources regarding the workings of the criminal system in the Philippines without putting that information or those issues to Ms. Garcia to allow her to respond with submissions or evidence. The Minister argues that Ms. Garcia was given the opportunity to address the overall criminality finding through the issuance of the procedural fairness letter, and that the visa officer is entitled to rely on specialized localized information regarding the country in which they work: Habte v Canada (Citizenship and Immigration), 2019 FC 327 at paras 23, 32, 35.\n\nWhile the duty of procedural fairness owed by visa officers generally tends to be at the lower end of the spectrum, this Court has recognized that decisions that involve inadmissibility invoke a greater degree of procedural fairness: Nguesso at paras 65–66. In my view, the officer did not meet the duty of fairness in this case.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-30", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 56–57", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "While a visa officer’s expertise and knowledge is central to their decision making, this does not resolve the issue of whether a visa officer has an obligation in a particular case to raise an aspect of that specialized knowledge before rendering a decision based on it. This Court has recognized that the rules of procedural fairness require that in some instances, such information or evidence must be disclosed: Al Hasan v Canada (Citizenship and Immigration), 2019 FC 1155 at paras 10–11; Nguyen v Canada (Citizenship and Immigration), 2019 FC 439 at para 28. The issue is whether “meaningful facts essential or potentially crucial to the decision” were relied upon without the applicant having been given an opportunity to comment on them: Nguyen at para 28, quoting Yang v Canada (Minister of Citizenship and Immigration), 2013 FC 20 at para 17.\n\nIn the present case, it is clear that the role of settlement and affidavits of desistance in the Philippine criminal justice system was a matter “essential or potentially crucial” to the visa officer’s decision. Indeed, it was the material focus of their analysis of Mr. Ballesteros’ admissibility. Yet neither the visa officer’s understanding that “it is common practice to settle cases” because of the lengthy trial process, nor their understanding that affidavits of desistance are simply a “workaround” arising from the terms of settlement was put to Ms. Garcia for comment in the fairness letter. In my view, it was unfair for the officer to rely on this information in this context, particularly where there was no evidence of a settlement, and where the visa officer’s understanding or information directly contradicted Mr. Ballesteros’ evidence that the withdrawal arose from Mr. Humiwat’s realization that he was at fault.", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-492842-31", - "doc_type": "caselaw", - "act_code": "2021 FC 141", - "act_short": "Garcia", - "act_name": "Garcia v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", - "marginal_note": "paras 58–59", - "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", - "part": "Federal Court", - "division": "", - "text": "The application for judicial review is therefore allowed, and Ms. Garcia’s application is referred back to a different officer for redetermination.\n\nNeither party proposed a question for certification. I agree that none arises. JUDGMENT IN IMM-5235-19 THIS COURT’S JUDGMENT is that The application for judicial review is allowed. The visa officer’s decision is set aside and Ms. Garcia’s application for permanent residence is returned for re-determination by a different officer. “Nicholas McHaffie” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5235-19 STYLE OF CAUSE: LOREBETH GARCIA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION HEARING HELD BY VIDEOCONFERENCE ON SEPTEMBER 9, 2020 FROM OTTAWA, ONTARIO (COURT) AND CALGARY, ALBERTA (PARTIES) JUDGMENT AND REASONS: MCHAFFIE J. DATED: February 11, 2021 APPEARANCES: Sania Chaudhry For The Applicant Meenu Ahluwalia For The Respondent SOLICITORS OF RECORD: Stewart Sharma Harsanyi Barristers and Solicitors Calgary, Alberta For The ApplicantS Attorney General of Canada Calgary, Alberta For The Respondent", - "current_to": "2021-02-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" - }, - { - "id": "fc-483303-1", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 1–4", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "The applicant is a citizen and resident of India. In or around late May 2019, she applied to the Migration Section of the Consulate General of Canada in Chandigarh, India, for a Temporary Resident Visa [TRV] so that she could visit her daughter in Canada. In a decision dated August 16, 2019, a visa officer refused the application because the applicant had not established that she would leave Canada at the end of her authorized stay and because she had misrepresented information in her TRV application. As a result of the finding of misrepresentation, the applicant is inadmissible to Canada for five years under paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].\n\nThe applicant has applied for judicial review of this decision on the basis that it was made in breach of the requirements of procedural fairness.\n\nThe applicant originally asked that the officer’s decision be set aside and that the matter be remitted to another decision maker for a redetermination of the TRV application. However, the timeframe for the applicant’s proposed trip to Canada is long passed. At the hearing of this application, the applicant’s counsel acknowledged that the main concern was the misrepresentation determination and the five-year period of inadmissibility it entails.\n\nFor the reasons that follow, I agree with the applicant that the decision was made in breach of the requirements of procedural fairness. This application will therefore be allowed and the August 16, 2019, decision (including the finding of misrepresentation) will be set aside. No other relief is requested or necessary.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-2", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 5–8", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "The applicant applied in or around late May 2019 for a TRV to permit her to visit her daughter in Canada between June 15 and 30, 2019. The applicant’s daughter is a permanent resident of Canada who lives in Saint-Laurent, Quebec. The applicant’s mother (who is also a citizen of India) wished to make the trip as well and was included on the TRV application.\n\nOn June 28, 2019, the Migration Section of the Canadian Consulate in Chandigarh sent an email to the applicant’s daughter’s email address. (That address had been given as the applicant’s contact email on the TRV application.) The subject line of the email indicated “PFL for Swaranjit Kaur.” (“PFL” is a commonly used acronym for “Procedural Fairness Letter.”) The body of the email stated: “An important communication (attached) regarding your application is being sent to you.”\n\nThe Certified Tribunal Record [CTR] prepared for this application for judicial review by the Consulate General of Canada in Chandigarh does not include a copy of a procedural fairness letter dated on or around June 28, 2019, nor does it include any notes from the Global Case Management System [GCMS] pertaining to any such letter. The GCMS notes simply indicate that on June 28, 2019, a procedural fairness letter was sent to the applicant’s daughter’s email address.\n\nAt some point (the date is not provided in the record on this application), the applicant’s daughter sent a communication to Immigration, Refugees and Citizenship Canada [IRCC] stating that she had received the June 28, 2019, email from the Migration Section but there was no attachment. It appears that this message to IRCC reached the Canadian Consulate in Chandigarh on July 25, 2019.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-3", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 9–14", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "The GCMS notes indicate that the procedural fairness letter was “resent” on July 25, 2019. A letter of that date is included in the record.\n\nIn this letter, an unidentified officer notes that under subsection 16(1) of the IRPA, a person who makes an application “must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.” The officer then states that they were concerned with the authenticity of the following, which you have provided in support of your application: On the current application form, you have not declared being unlawfully present for 365 days or more within 10 years in the United States. According to information in our records, you were unlawfully present for 365 days or more within 10 years in the United States.\n\nThis “information” concerning the applicant’s alleged unlawful presence in the United States is not otherwise described in the letter. There is nothing in the CTR to indicate what gave rise to this allegation.\n\nThe officer invited the applicant to respond to the information set out in the July 25, 2019, letter. If no response was received by the deadline specified in the letter (August 9, 2019), the application for a TRV would be refused.\n\nThe officer also noted that if it is found that the applicant “engaged in misrepresentation” in submitting her TRV application, she may be found inadmissible under paragraph 40(1)(a) of the IRPA. Such a finding would render her inadmissible to Canada for a period of five years.\n\nWith her daughter’s assistance, the applicant retained a Canadian lawyer in Montreal (not Mr. Chalk) to represent her in providing a response to the July 25, 2019, letter.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-4", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 15–18", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "On August 5, 2019, the lawyer emailed the Migration Section explaining that she had only recently been retained and was requesting an extension of time to respond to the July 25, 2019, letter.\n\nOn August 6, 2019, an officer with the Migration Section replied by email and granted an extension of seven days (i.e. to August 13, 2019) to provide a response. The officer also set out the following bullet points in the email, presumably to explain why only a relatively short extension was being granted: ● The applicant has been provided with ample time to respond to our concerns. ● The applicant provided an email address which we used [. . .] so there is no reason the applicant would not have been aware of our concerns and been able to respond in a timely manner. We resent the letter on 25th July giving 10 days to respond. ● The facts are clear regarding what was not disclosed on the original application – the applicant was asked in the application ‘Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory’ – to which the applicant indicated NO – which was not true.\n\nAlthough the officer does not say so expressly, there is no issue that the specific question to which the officer is referring in the last bullet point is Question 2(b) under Background Information in the Application for Visitor Visa (Temporary Resident Visa) form. It asks: “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?” As the officer notes, the applicant answered “No” to this question on her original TRV application.\n\nOn August 12, 2019, the applicant’s lawyer emailed a letter and supporting documents to the Canadian Consulate.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-5", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 19–23", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "In response to the specific allegation in the July 25, 2019, letter concerning the applicant not disclosing having been unlawfully present in the United States, the applicant’s lawyer wrote that she “can confirm that [the applicant] neither visited nor overstayed at [sic] the USA in the last 10 years.”\n\nHowever, the applicant’s lawyer then went on to state that there were three “mistakes” in the TRV application. These mistakes were made because an “unauthorized” representative in India had prepared the TRV application for the applicant, the applicant had answered truthfully all the questions the representative asked her, but the representative had not translated some of the questions on the application properly.\n\nThe applicant’s lawyer described the mistakes in the TRV application as follows.\n\nFirst, in response to the question “Have you previously been married or in a common law relationship?”, the applicant had answered “Yes” and provided the name of her late husband, who had passed away in 2008. The lawyer wrote that the correct answer is “No” because the applicant had only been married once, to her late husband. (In response to the immediately preceding question asking her current marital status, the applicant had stated “widowed”.)\n\nSecond, in response to the question “Are you able to communicate in English and/or French?”, the applicant had answered “English” when the correct answer is “No”. (The applicant had stated in her application that her mother tongue is Punjabi.)", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-6", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "para 24", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "Third, in response to the question “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?”, the applicant had answered “No” when the correct answer is “Yes”. The lawyer explained this mistake as follows (sic throughout): Although Madame Swaranjit Kaur was never denied entry or ordered to leave Canada or any other country, but she was denied a visa to the USA on 2018 because when she was visiting the USA between 2006 and 2008, she has lost her Indian passport and then left the USA without her lost Indian passport, which caused her a delay over 6 month in USA for her to be able to arrange for an alternative (lesser passer) Indian travel document (Indian Landing paper) to allow her to board a plane to go back to India on June 2008. [Here the lawyer makes reference to an attached document. From the list of attachments provided with the letter, it would appear to be a “report of lost passport.” For some reason, this document was not included in the record on this application for judicial review.] The reason why this question was answered no, because the unauthorized representative told her that the question is only asking about Canada: “if been refused a visa or permit, denied entry or ordered to leave Canada” in the last 10 years, without translating “or any other country or territory.” Yet she told him that she was refused a visitor visa to the USA on 2018, but he told her that the question is only about Canada.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-7", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 25–27", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "The applicant’s lawyer went on to submit that the applicant had not knowingly provided false information in her application. Rather, she had made innocent mistakes. The lawyer attributed the mistakes in the application to the failure of the representative to translate the questions on the application properly, to the applicant’s inability to read and understand the application form that had been completed in English, to the applicant’s age (she was born in 1959), to the applicant’s health (she suffered from a specified medical condition that caused pain and fatigue), and to the passage of more than 11 years “since the event.” (It is not entirely clear what event the lawyer is referring to but it appears to be the applicant’s departure from the United States in June 2008.)\n\nAs set out in the decision letter dated August 16, 2019, the TRV application was refused for two reasons.\n\nFirst, the officer was not satisfied that the applicant would leave Canada at the end of her stay as a temporary resident, as required by paragraph 179(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227. This finding was based on: the applicant’s family ties in Canada and in India; the purpose of the applicant’s visit to Canada; and the applicant’s personal assets and financial status.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-8", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 28–31", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "Second, the officer was not satisfied that the applicant had answered all the questions in her TRV application truthfully, as required by subsection 16(1) of the IRPA. The officer wrote: Specifically, I am not satisfied that the following information is truthful: You misrepresented previous US refusals which could have induced an error in [the] administration of the Act in that you may have been issued a TRV. Application is clear in that it asks “have you EVER been refused…any country” [emphasis in original].\n\nThe decision letter does not mention the applicant’s alleged omission of her having been unlawfully present in the United States, as set out in the July 25, 2019, procedural fairness letter.\n\nThe officer concludes the decision letter by stating that the applicant had been found inadmissible to Canada in accordance with paragraph 40(1)(a) of the IRPA for, directly or indirectly, misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. In accordance with paragraph 40(2)(a) of the IRPA, the applicant will remain inadmissible for a period of five years from the date of the letter.\n\nThe officer’s GCMS notes shed some additional light on the basis of the officer’s misrepresentation finding.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-9", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 32–34", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "In the officer’s view, the TRV application “is clear in what is being asked, applicant has signed it that all is truthful and correct, applicant not only did not disclose US visa refusals and the problems in the US in 2008 – but she also did not disclose [her medical condition]. Having had so much trouble in the US previously it is reasonable that the applicant would either make sure all is done correctly to avoid further problems – OR – purposefully not disclose refusals that might affect this application” [original emphasis]. Further, the applicant is responsible for the consequences of having chosen to be assisted by an unauthorized representative.\n\nThe officer was not persuaded by the explanations offered by the applicant’s lawyer for why incorrect information had been included on the TRV application. The officer did not accept that the applicant did not know what she was signing or fully understand the application. The officer therefore found that the applicant is inadmissible to Canada under paragraph 40(1)(a) of the IRPA due to misrepresentation regarding the US visa refusals and rejected the application accordingly.\n\nNotably, while the officer alludes to the applicant’s “problems” in the United States in 2008 (i.e. the delay in leaving because of the loss of her Indian passport), there is no specific finding in the GCMS notes in relation to the concern that had been expressed in the July 25, 2019, letter – namely, that the applicant had been unlawfully present in the United States for 365 days or more within 10 years and that she had failed to disclose this.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-10", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 35–36", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "There is no dispute in the present case about how a reviewing court should determine whether there has been a breach of the requirements of procedural fairness. The court must conduct its own analysis and provide what it judges to be the right answer to the question of whether the process the decision maker followed satisfied the level of fairness required in all of the circumstances. This is functionally the same as applying the correctness standard of review: see Dunsmuir v New Brunswick, 2008 SCC 9 at paras 34 and 50; Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 54; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Canadian Pacific Railway Co v Canada (Attorney General), 2018 FCA 69 at paras 33-56; and Elson v Canada (Attorney General), 2019 FCA 27 at para 31.\n\nIn Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court of Canada held (at para 22) that “the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.” Further, the values underlying the duty of fairness “relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision” (at para 28).", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-11", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 37–38", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "The common law duty of procedural fairness is “flexible and variable” (Baker at para 22). Several factors must be considered in determining what is required in the specific context of a given case, including: (1) the nature of the decision being made; (2) the nature of the statutory scheme under which the decision is made; (3) the importance of the decision to the individual(s) affected; (4) the legitimate expectations of the party challenging the decision; and (5) the procedures followed by the decision maker itself and its institutional constraints (Baker at paras 21-28).\n\nApplying these considerations, courts have consistently found that in visa applications the requirements of procedural fairness fall on the low end of the spectrum (Sepehri v Canada (Citizenship and Immigration), 2007 FC 1217 at para 3; Asl v Canada (Citizenship and Immigration), 2016 FC 1006 at para 23). While an applicant must be afforded a fair process by the visa officer, what is required for the process to be fair is attenuated by the fact that generally what is at issue is whether the applicant will be permitted to visit, study in, or move to Canada – privileges accorded to foreign nationals by the IRPA and related regulations in specified circumstances.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-12", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "para 39", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "Even so, procedural fairness requires that an applicant for a visa have an opportunity to participate meaningfully in the application process. Consequently, the duty of procedural fairness can require that an applicant be given an opportunity to respond to a decision maker’s concerns when those concerns go beyond simply whether the legislation or related requirements are met on the face of the application (Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 24). When, for example, the applicant may be unaware of the existence or the basis of the concern, procedural fairness may require prior notice of the concern before a decision is made so that the applicant has an opportunity to try to disabuse the officer of the concern. See Talpur v Canada (Citizenship and Immigration), 2012 FC 25 at para 21; Mohammed v Canada (Immigration, Refugees and Citizenship), 2019 FC 326 at paras 25-26; and Bui v Canada (Citizenship and Immigration), 2019 FC 440 at para 27. While these cases all concerned applications for permanent resident visas, in my view the principles they stand for are equally applicable to applications for temporary resident visas (cf. Kong v Canada (Citizenship and Immigration), 2017 FC 1183 at paras 22-27). Where the concern relates to misrepresentation, the importance of having a meaningful opportunity to meet it is even more evident given the potential consequences of a finding of misrepresentation: see Toki v Canada (Immigration, Refugees and Citizenship), 2017 FC 606 at para 17, and Ntaisi v Canada (Citizenship and Immigration), 2018 CanLII 73079 (FC) at para 10.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-13", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 40–42", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "In the present case, the applicant advances two principal arguments. First, the procedural fairness communications she received – the July 25, 2019, letter and the August 6, 2019, email – were insufficient because they did not inform her of the officer’s specific concerns. Second, since the applicant’s response to these communications evidently raised additional concerns for the officer, the officer was required to put these new concerns to the applicant in another procedural fairness letter before making a decision.\n\nI agree with the applicant’s first argument. Since this is sufficient to dispose of this application, it is not necessary to address her second argument.\n\nIt follows from the principles cited above that, when a procedural fairness letter has been sent, a functional approach should be taken to assessing its adequacy. The purpose of a procedural fairness letter “is to provide enough information to an applicant that a meaningful answer can be supplied” (Ntaisi at para 6). Thus, the question is: Does the letter inform the affected party of the decision maker’s concerns? To serve this purpose, the letter must state more than general concerns. It must state the decision maker’s concerns with sufficient clarity and particularity so that the affected party has a meaningful opportunity to address them. See AB v Canada (Citizenship and Immigration), 2013 FC 134 at paras 53-54, and Toki at para 25.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-14", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 43–44", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "The July 25, 2019, letter states that the officer who wrote it had a concern with respect to the “authenticity” of certain information the applicant had provided in connection with her TRV application, specifically: On the current application form, you have not declared being unlawfully present for 365 days or more within 10 years in the United States. According to information in our records, you were unlawfully present for 365 days or more within 10 years in the United States.\n\nWhatever the concern was that had given rise to the July 25, 2019, letter, it is expressed confusingly at best. It is not at all clear why it is a concern about “authenticity”, what exactly the applicant should have declared, or where she should have done so on the TRV application. Further, the letter is ambiguous. Is it referring to the ten year period prior to the TRV application (as the applicant and her lawyer evidently thought) or some other ten year period? If it is the latter, which ten year period? According to the applicant, the events relating to the loss of her Indian passport while she was visiting the United States occurred more than ten years earlier and so the allegation in the July 25, 2019, letter (as she understood it) was mistaken. There is no way to tell whether the July 25, 2019, letter is referring to these events or to something else.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-15", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 45–48", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "While these are all serious problems, it is not necessary to come to a final determination about the adequacy of the July 25, 2019, letter. This is because, as I read the decision letter and the officer’s GCMS notes, this alleged non-disclosure does not figure much, if at all, in the final decision. As noted above, the officer who made the decision does not make any findings one way or the other about whatever it was that that letter was referring to. Rather, the principal concern was that the applicant had been refused a US visa twice in 2010 and she had not disclosed this in response to Question 2(b).\n\nTo repeat for ease of reference, the August 6, 2019, email expressed the following concern: The facts are clear regarding what was not disclosed on the original application – the applicant was asked in the application ‘Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory’ – to which the applicant indicated NO – which was not true.\n\nBoth on its face and in light of the final decision, this email appears to be expressing a different concern than the one expressed in the July 25, 2019, letter. Whether the requirements of procedural fairness were met or not thus turns on whether the email informed the applicant of the concerns of the officer who ultimately decided to reject the TRV application and to find the applicant inadmissible due to misrepresentation.\n\nBy way of further context, it appears from the GCMS notes that the officer who made the decision at issue sent the August 6, 2019, email but a different officer had prepared the July 25, 2019, letter.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-16", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 49–52", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "The respondent argues that it was sufficient for the officer simply to alert the applicant that there was a concern that her answer to Question 2(b) on the application form was false. Since the applicant knows her own travel history, she would know what the officer was referring to in the email. Whatever might have given rise to the original procedural fairness letter, it is clear from the decision that the officer’s concern was with respect to the applicant’s failure to disclose previous US visa refusals. Since the applicant would have known about those refusals, there was no breach of procedural fairness despite the fact that the officer did not refer to them specifically in the email.\n\nI do not agree.\n\nEven assuming perfect recollection of her travel history on the part of the applicant, the respondent’s argument presumes that the information the officer was relying on is accurate. However, this may be the very point in issue when a concern about misrepresentation arises. One cannot be faulted for failing to disclose something that is not, in fact, the case.\n\nThe officer who made the final decision evidently believed that the applicant had been refused a US visa twice in 2010. The grounds for that belief do not appear in the record. There is nothing before me to suggest that the officer could not have disclosed this specific concern to the applicant in the August 6, 2019, email and invited a response. Because the officer did not do so, the officer and the applicant ended up at cross-purposes.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-17", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 53–55", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "In the response prepared by her lawyer, the applicant disclosed that she had been refused a US visa in 2018 and offered an explanation for why it was not mentioned in her TRV application: the applicant had told her representative about it but he said the question only concerned Canadian visa refusals. There is no indication in the record that the officer was even aware of this refusal before the applicant disclosed it in her procedural fairness response. Moreover, it is not clear how, if at all, this particular omission from the TRV application figures in the officer’s misrepresentation determination. While the applicant acknowledged having been refused a US visa once (in 2018), this alone cannot be the basis of the misrepresentation finding. This is because, in the decision letter and the GCMS notes, the officer consistently refers to visa refusals – that is, to more than one – when describing the applicant’s misrepresentation.\n\nOn the other hand, it is clear that the two alleged 2010 visa refusals figure significantly in the decision. The officer mentions them specifically in the decision letter and in the GCMS notes. However, the applicant did not have a meaningful opportunity to address this allegation because she was never advised that this is what had given rise to the officer’s concern about misrepresentation in the first place.\n\nIn sum, I am not satisfied that the August 6, 2019, email communicated the officer’s concern about misrepresentation with sufficient clarity and particularity to provide the applicant with a meaningful opportunity to respond. Consequently, the decision on the TRV application was made in breach of the requirements of procedural fairness.", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-483303-18", - "doc_type": "caselaw", - "act_code": "2020 FC 809", - "act_short": "Kaur", - "act_name": "Kaur v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", - "marginal_note": "paras 56–57", - "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", - "part": "Federal Court", - "division": "", - "text": "For these reasons, the application for judicial review will be allowed. As noted above, the applicant does not seek reconsideration of her TRV application. She is content to have the decision dated August 16, 2019, (including the finding of misrepresentation) set aside. I will so order.\n\nThe parties have not suggested any serious questions of general importance for certification under paragraph 74(d) of the IRPA. I agree that none arise. JUDGMENT IN IMM-5627-19 THIS COURT’S JUDGMENT is that The application for judicial review is allowed. The decision dated August 16, 2019, is set aside. No question of general importance is stated. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5627-19 STYLE OF CAUSE: SWARANJIT KAUR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA HEARING HELD BY VIDEOCONFERENCE ON JULY 7, 2020 FROM OTTAWA, ONTARIO (COURT) AND MONTREAL, QUEBEC (PARTIES) JUDGMENT AND REASONS: NORRIS J. DATED: August 4, 2020 APPEARANCES: David Chalk For The Applicant Jocelyne Murphy For The Respondent SOLICITORS OF RECORD: Chalk Immigration Montreal, Quebec For The Applicant Attorney General of Canada Montreal, Quebec For The Respondent", - "current_to": "2020-08-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" - }, - { - "id": "fc-56900-1", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 1", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "The Applicant, Ms. Thi Ngoc Nguyen, seeks to challenge a decision taken under section 133 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (“the Act”), whereby the Minister of Public Safety and Emergency Preparedness (“the Minister”) requires payment of a specified amount of money before returning a seized diamond ring. The Applicant’s arguments are all directed at challenging the decision under section 131 of the Act whereby the Minister found that Ms. Nguyen had contravened s. 12 of the Act by failing to report an alleged importation of a ring. Subsection 131(3) of the Act is a privative clause within the Customs Act that requires decisions made pursuant to s. 131 of the Act be subject to review only as described in s.135(1) of the Act. Subsection 135(1) of the Act requires that a Minister’s decision made under s.131 of the Act be appealed by way of an action. In other words, a decision made pursuant s. 131 of the Act must be challenged by way of action and not by way of application for judicial review.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-2", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 2–3", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "As Justice Andrew MacKay stated in ACL Canada Inc. v. Canada (Minister of National Revenue - M.N.R.), (1993) 68 F.T.R. 180, 107 D.L.R. (4th) 736 (F.C.T.D.): [54] In my view, Parliament has insulated from appeal the penalty imposed in the event there is found to be a contravention of the Act. That may seem surprising since the penalty will often be the primary concern of the person whose goods are seized under the Act or who is served with a notice and demand for payment under s.124. Yet that simply carries on a long-standing regime under Customs Acts of the past, at least in relation to goods seized, for the goods are forfeited to Her Majesty at the time of the contravention of the Act (s. 122), and terms of any remission, where the Act or regulations are contravened, have been considered beyond the role of the Court to review. (Lawson et al. v. The Queen, [1980] 1 F.C. 767 F.C.T.D. (per Mahoney J. at 772)). [Underlined by the court]\n\nA technical provision with a privative clause presents a conundrum to judicial review, when it does not result in a conclusion that would be reached due to factual evidence! In such an instance, the law is followed although justice may be undone. In the case at bar, this has occurred due to a series of circumstances which include language barrier challenges for an applicant, misinterpretation of significant evidence by first instance decision-makers and jurisprudence pointing at the frustration of judges for a period of years (Dokaj v. Canada (Minister of National Revenue - M.N.R.), 2005 FC 1437, [2006] 2 F.C.R. 152; ACL Canada, above, at para. 56, see also below at paragraph 22 of this Decision).", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-3", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 4–5", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "An iron-clad privative clause can only be interpreted as it is and nothing more, if a court recognizes it is but a court, and nothing more; nevertheless, the subject-matter can then be reviewed by the executive branch for eventual formulation by the legislative branch so that justice can prevail, where in rare exceptions, cases of honest citizens and residents of Canada fall through the cracks. Such is the situation in this case, wherein, the court understands its limitations under the separation of powers and the legislation is clear on given points under which a decision would be overturned, if it ruled differently. The court acknowledges even if it were inclined to rule otherwise, that under constitutional supremacy, it is not for the court, itself, to write the law but rather it is for the two other branches of government to remedy the situation if they so see fit.\n\nThe fact a dialogue can ensue among the three branches of government through jurisprudence, represents, in and of itself, the measure of health in a democracy. The spirit of the law attempts to be at one with justice, as a synchronized whole, where the three branches of government, although working separately, set matters right under the supremacy of that constitutional framework, each within its own jurisdiction. II. JUDICIAL PROCEDURE", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-4", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 6–9", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "This is an application for judicial review of a Ministerial decision dated August 7, 2008 (“the Decision”), which made two determinations. First, pursuant to s. 131 of the Act, the Minister found that Ms. Nguyen had contravened s. 12 of the Act. Having found a contravention of the Act, the Minister then determined pursuant to s. 133 of the Act that a ring under seizure would be returned to Mr. Nguyen upon receipt of the amount of $30,483.20, to be held as forfeit. III. BACKGROUND\n\nMs. Nguyen is a Canadian citizen who is originally from Vietnam, but who resided in Surrey, British Columbia at the time of the enforcement action. She was a mushroom farm worker but currently works as a manicurist.\n\nOn February 15, 2007, Ms. Nguyen left Canada for a visit to Vietnam. She took with her various clothing and jewellery, including a diamond ring (“the ring”), two other diamond rings (“the engagement and wedding rings”), and two pairs of earrings with clear stones (“the earrings”).\n\nAbout two weeks later, on March 2, 2007, Ms. Nguyen returned to Canada, bringing back all the jewellery which she had taken with her. In response to a question on her customs declaration form as to whether she was bringing into Canada items purchased or received abroad, she stated that she had nothing to declare. At the preliminary inspection point, she was referred to secondary inspection because of her difficulty communicating in English. A customs officer at the secondary inspection point opened Ms. Nguyen’s luggage. This second customs officer unfolded a light jacket/shirt and felt a small lump in its pocket. When the customs officer opened the pocket, she discovered Ms. Nguyen’s jewellery in a small jewellers’ plastic bag.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-5", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 10–12", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "Ms. Nguyen provided an appraisal, an invoice, and a diamond grading report for the ring. The appraisal for the diamond in the ring was conducted by a gemological consultant in Vancouver on March 31, 2005. This appraisal suggested an insurance coverage of the diamond before its affixation to a gold ring at $124,800. The invoice was with respect to the cost of setting the diamond in a gold band. This invoice was issued by a jeweller located in Vancouver and was dated April 15, 2005. Finally, the diamond grading report was with respect to the diamond in the ring and was dated September 15, 2003 in Antwerp, Belgium.\n\nThe customs officer told Ms. Nguyen that the documents do not establish that the ring had been legally imported into Canada or that applicable duties and taxes had been paid.\n\nMs. Nguyen was unable to provide receipts for the purchase of any of her jewellery because the jewellery consisted of gifts from people with whom she was no longer in contact. She indicated to the customs officer that the engagement and wedding rings were given to her by her ex-husband while they both lived in Montreal. In her affidavit, she claims that her ex-husband gave her the gifts of earrings in 1994, and in 1997 he gave Ms. Nguyen the wedding and engagement rings. This jewellery is now over 10 years old. Ms. Nguyen was separated from her ex-husband in 1998 and they are not on speaking terms.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-6", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 13–16", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "She indicated to the customs officer that the ring was given to her in Vancouver as a gift from her boyfriend (Certified Record at pp. 2, 4-5). When asked what her boyfriend does for a living, she indicated that he owns a business in Hong Kong where he now lives (Certified Record at p. 4). In her affidavit, Ms. Nguyen confirmed that she was given the ring on Valentine’s Day in 2005 by her boyfriend in Vancouver. According to Ms. Nguyen, she was separated from her boyfriend by the end of 2006 and they are no longer in contact.\n\nNot satisfied, the customs officers seized the ring because Ms. Nguyen had not declared it on the customs forms as she allegedly was required to do. She also did not have receipts confirming when the jewellery was bought. The other jewellery was also kept in custody but was not seized; the customs officer believed that the other items may have been more than 10 years old; and, therefore, beyond the limitations period.\n\nAt the request of the Minister, GLS Gemlab Limited conducted an appraisal of the ring. Based on this appraisal, the Minister informed Ms. Nguyen by letter dated April 4, 2007, that the ring would be released upon payment of $30,483.20 in duties and an additional $5,681.31 in Provincial Sales Tax.\n\nMs. Nguyen duly requested the Minister to review the enforcement action. By letter dated June 22, 2007, Ms. Nguyen was informed that the Minister was reviewing the enforcement action which had been taken as Ms. Nguyen had not reported the alleged importation of the ring in contravention of s. 12 of the Act. IV. THE IMPUGNED DECISION", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-7", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "Upon review of the enforcement action, the Minister’s delegate issued two determinations on August 7, 2007, as follows: After considering all of the circumstances, I have decided, under the provisions of section 131 of the Customs Act, that there has been a contravention of the Customs Act or the Regulations in respect of the goods that were seized. Under the provisions of section 133 of the Customs Act, the ring under seizure be returned to the appellant upon receipt of an amount $30,483.20 to be held as forfeit. If release of the goods is not taken on the foregoing terms, within 90 days from the date of this notice, they will be forfeited and disposed of. V. APPLICABLE LEGISLATION Report 12. (1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. Time and manner of report (2) Goods shall be reported under subsection (1) at such time and in such manner as the Governor in Council may prescribe.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-8", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "Who reports (3) Goods shall be reported under subsection (1) (a) in the case of goods in the actual possession of a person arriving in Canada, or that form part of the person’s baggage where the person and the person’s baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; (a.1) in the case of goods imported by courier or as mail, by the person who exported the goods to Canada; (b) in the case of goods, other than goods referred to in paragraph (a) or goods imported as mail, on board a conveyance arriving in Canada, by the person in charge of the conveyance; and (c) in any other case, by the person on behalf of whom the goods are imported. Goods returned to Canada (3.1) For greater certainty, for the purposes of the reporting of goods under subsection (1), the return of goods to Canada after they are taken out of Canada is an importation of those goods. Where goods are reported outside Canada (4) Subsection (1) does not apply in respect of goods that are reported in the manner prescribed under subsection (2) prior to importation at a customs office outside Canada unless an officer requires that the goods be reported again under subsection (1) after importation. […] Written report (6) Where goods are required by the regulations to be reported under subsection (1) in writing, they shall be reported in the prescribed form containing the prescribed information, or in such form containing such information as is satisfactory to the Minister. […] Déclaration 12.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-9", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "(1) Sous réserve des autres dispositions du présent article, ainsi que des circonstances et des conditions prévues par règlement, toutes les marchandises importées doivent être déclarées au bureau de douane le plus proche, doté des attributions prévues à cet effet, qui soit ouvert. Modalités (2) La déclaration visée au paragraphe (1) est à faire selon les modalités de temps et de forme fixées par le gouverneur en conseil. Déclarant (3) Le déclarant visé au paragraphe (1) est, selon le cas : a) la personne ayant en sa possession effective ou parmi ses bagages des marchandises se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada ou, dans les circonstances réglementaires, le responsable du moyen de transport; a.1) l’exportateur de marchandises importées au Canada par messager ou comme courrier; b) le responsable du moyen de transport arrivé au Canada à bord duquel se trouvent d’autres marchandises que celles visées à l’alinéa a) ou importées comme courrier; c) la personne pour le compte de laquelle les marchandises sont importées. Marchandises qui reviennent au Canada (3.1) Il est entendu que le fait de faire entrer des marchandises au Canada après leur sortie du Canada est une importation aux fins de la déclaration de ces marchandises prévue au paragraphe (1). Exception : déclaration à l’étranger (4) Le paragraphe (1) ne s’applique qu’à la demande de l’agent aux marchandises déjà déclarées, conformément au paragraphe (2), dans un bureau de douane établi à l’extérieur du Canada. […] Déclaration écrite (6) Les déclarations de marchandises à faire, selon les règlements visés au paragraphe (1), par écrit sont à établir en la forme, ainsi qu’avec les renseignements, déterminés par le ministre ou satisfaisants pour lui.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-10", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "[…] Decision of the Minister 131. (1) After the expiration of the thirty days referred to in subsection 130(2), the Minister shall, as soon as is reasonably possible having regard to the circumstances, consider and weigh the circumstances of the case and decide (a) in the case of goods or a conveyance seized or with respect to which a notice was served under section 124 on the ground that this Act or the regulations were contravened in respect of the goods or the conveyance, whether the Act or the regulations were so contravened; (b) in the case of a conveyance seized or in respect of which a notice was served under section 124 on the ground that it was made use of in respect of goods in respect of which this Act or the regulations were contravened, whether the conveyance was made use of in that way and whether the Act or the regulations were so contravened; or (c) in the case of a penalty assessed under section 109.3 against a person for failure to comply with subsection 109.1(1) or (2) or a provision that is designated under subsection 109.1(3), whether the person so failed to comply. (d) [Repealed, 2001, c. 25, s. 72] Exception (1.1) A person on whom a notice is served under section 130 may notify the Minister, in writing, that the person will not be furnishing evidence under that section and authorize the Minister to make a decision without delay in the matter. Notice of decision (2) The Minister shall, forthwith on making a decision under subsection (1), serve on the person who requested the decision a detailed written notice of the decision.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-11", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "Judicial review (3) The Minister’s decision under subsection (1) is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by subsection 135(1). Décision du ministre 131. (1) Après l’expiration des trente jours visés au paragraphe 130(2), le ministre étudie, dans les meilleurs délais possible en l’espèce, les circonstances de l’affaire et décide si c’est valablement qu’a été retenu, selon le cas : a) le motif d’infraction à la présente loi ou à ses règlements pour justifier soit la saisie des marchandises ou des moyens de transport en cause, soit la signification à leur sujet de l’avis prévu à l’article 124; b) le motif d’utilisation des moyens de transport en cause dans le transport de marchandises ayant donné lieu à une infraction aux mêmes loi ou règlements, ou le motif de cette infraction, pour justifier soit la saisie de ces moyens de transport, soit la signification à leur sujet de l’avis prévu à l’article 124; c) le motif de non-conformité aux paragraphes 109.1(1) ou (2) ou à une disposition désignée en vertu du paragraphe 109.1(3) pour justifier l’établissement d’une pénalité en vertu de l’article 109.3, peu importe s’il y a réellement eu non-conformité. d) [Abrogé, 2001, ch. 25, art. 72] Exception (1.1) La personne à qui a été signifié un avis visé à l’article 130 peut aviser par écrit le ministre qu’elle ne produira pas de moyens de preuve en application de cet article et autoriser le ministre à rendre sans délai une décision sur la question. Avis de la décision (2) Dès qu’il a rendu sa décision, le ministre en signifie par écrit un avis détaillé à la personne qui en a fait la demande.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-12", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "Recours judiciaire (3) La décision rendue par le ministre en vertu du paragraphe (1) n’est susceptible d’appel, de restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues au paragraphe 135(1). Where there is contravention 133. (1) Where the Minister decides, under paragraph 131(1)(a) or (b), that there has been a contravention of this Act or the regulations in respect of the goods or conveyance referred to in that paragraph, and, in the case of a conveyance referred to in paragraph 131(1)(b), that it was used in the manner described in that paragraph, the Minister may, subject to such terms and conditions as the Minister may determine, (a) return the goods or conveyance on receipt of an amount of money of a value equal to an amount determined under subsection (2) or (3), as the case may be; (b) remit any portion of any money or security taken; and (c) where the Minister considers that insufficient money or security was taken or where no money or security was received, demand such amount of money as he considers sufficient, not exceeding an amount determined under subsection (4) or (5), as the case may be.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-13", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "[…] Return of goods under paragraph (1)(a) (2) Goods may be returned under paragraph (1)(a) on receipt of an amount of money of a value equal to (a) the aggregate of the value for duty of the goods and the amount of duties levied thereon, if any, calculated at the rates applicable thereto (i) at the time of seizure, if the goods have not been accounted for under subsection 32(1), (2) or (5) or if duties or additional duties have become due on the goods under paragraph 32.2(2)(b) in circumstances to which subsection 32.2(6) applies, or (ii) at the time the goods were accounted for under subsection 32(1), (2) or (5), in any other case; or (b) such lesser amount as the Minister may direct. […] Cas d’infraction 133. (1) Le ministre, s’il décide, en vertu des alinéas 131(1)a) ou b), que les motifs d’infraction et, dans le cas des moyens de transport visés à l’alinéa 131(1)b), que les motifs d’utilisation ont été valablement retenus, peut, aux conditions qu’il fixe : a) restituer les marchandises ou les moyens de transport sur réception du montant déterminé conformément au paragraphe (2) ou (3), selon le cas; b) restituer toute fraction des montants ou garanties reçus; c) réclamer, si nul montant n’a été versé ou nulle garantie donnée, ou s’il estime ces montant ou garantie insuffisants, le montant qu’il juge suffisant, à concurrence de celui déterminé conformément au paragraphe (4) ou (5), selon le cas.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-14", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 17", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "[…] Restitution des marchandises (2) La restitution visée à l’alinéa (1)a) peut, s’il s’agit de marchandises, s’effectuer sur réception : a) soit du total de leur valeur en douane et des droits éventuellement perçus sur elles, calculés au taux applicable : (i) au moment de la saisie, si elles n’ont pas fait l’objet de la déclaration en détail ou de la déclaration provisoire prévues au paragraphe 32(1), (2) ou (5), ou si elles sont passibles des droits ou droits supplémentaires prévus à l’alinéa 32.2(2)b) dans le cas visé au paragraphe 32.2(6), (ii) au moment où elles ont fait l’objet de la déclaration en détail ou de la déclaration provisoire prévues au paragraphe 32(1), (2) ou (5), dans les autres cas; b) soit du montant inférieur que le ministre ordonne. […] Federal Court 135. (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant. Ordinary action (2) The Federal Courts Act and the rules made under that Act applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions. Cour fédérale 135. (1) Toute personne qui a demandé que soit rendue une décision en vertu de l’article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d’action devant la Cour fédérale, à titre de demandeur, le ministre étant le défendeur.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-15", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 17–19", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "Action ordinaire (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), sous réserve des adaptations occasionnées par les règles particulières à ces actions. VI. ISSUES\n\nTwo questions are raised: 1. Is the Applicant able to challenge in judicial review the Minister’s determination made pursuant s. 131 of the Act that the Applicant contravened s. 12 of the Act? 2. Was the Minister’s decision pursuant s. 133 of the Act requiring the Applicant to remit a certain monetary amount for the release of the seized ring unlawful? VII. ANALYSIS a. Is the Applicant able to challenge in judicial review the Minister’s determination made pursuant s. 131 of the Act that the Applicant contravened s. 12 of the Act?\n\nThe Applicant is challenging the Minister’s finding of a contravention of the Act made pursuant s. 131 of the Act of this application for judicial review. Subsection 131(3) of the Act is a privative clause within the Customs Act that requires decisions made pursuant to s. 131 of the Act be subject to review only as described in s. 135(1) of the Act. Subsection 135(1) of the Act requires that a Minister’s decision made under s. 131 of the Act be appealed by way of an action.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-16", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 20", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "No such statutory right of appeal exists with respect to Ministerial decisions taken under s. 133 of the Act. Section 133 of the Act provides that where the Minister finds under s. 131 of the Act that a contravention of the Act has occurred, the Minister may impose a penalty or other applicable remedial action such as the return of goods on receipt of an amount of money. Accordingly, a determination made pursuant s. 133 of the Act may often be dependent on a finding of a contravention of the Act. Nevertheless, the two decisions are separate and distinct, and must be challenged separately. The determination made pursuant to s. 131 of the Act in respect of a contravention of s. 12 of the Act may only be appealed by way of an action to this Court. Meanwhile, a determination made pursuant s. 133 of the Act regarding the release of the goods may be challenged only by way of an application for judicial review in accordance with s. 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-17", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 21", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "As Justice Carolyn Layden-Stevenson recognized in a case interpreting similarly structured legislation, “the result is one that is both awkward and inconvenient” (Dokaj, above, at para. 39). Indeed, Justice Andrew Mackay of this Court, in ACL Canada Inc., above, recommended that the bifurcated legislative scheme be amended by Parliament: [56] I note in passing that if my interpretation of the Act is correct, there is an anomalous situation presented for anyone seeking to question the Minister's decisions in relation to seizures and forfeitures. The Act provides for an appeal of a decision of the Minister on the issue of whether there has been a contravention of the Act or regulations and such an appeal may be made by way of an action in this Court within 90 days of notice of the decision. The exercise of discretion in imposing the penalty, like any other administrative discretion, even where there is a privative clause, is subject to judicial review in this Court, but since amendments to the Federal Court Act effective February 1, 1992, relief must be sought by an application for judicial review, not by an action, to be commenced within 30 days of the decision sought to be reviewed, unless the Court grants an extension of time to apply. The person affected by customs seizures and penalties can only be confused by the two remedial processes Parliament has now provided under the two statutes. Parliament might well consider whether both decisions of the Minister, under ss. 131 and 133, should be subject to review in a single proceeding, by way of an appeal or on application for judicial review.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-18", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 22", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "The interpretation of the Act, requiring that s. 131 determinations be appealed by an action has repeatedly been supported by this Court as proceedings by way of judicial review have not been able to address the evidence in such cases due to the technical language in the legislation with its privative clause (See Dokaj, above at para. 42; ACL Canada Inc., above, at paras. 52-56; Time Data Recorder International Ltd. v. Canada (Minister of National Revenue - M.N.R.), (1993) 66 F.T.R. 253, 42 A.C.W.S. (3d) 66 (F.C.T.D.) at para. 22 aff’d. (1997) 211 N.R. 229, 70 A.C.W.S. (3d) 819 (F.C.A.) at para. 21; He v. Canada (2000), 182 F.T.R. 85, 95 A.C.W.S. (3d) 82 (F.C.T.D.) at para. 11.) 2. Was the Minister’s decision pursuant s. 133 of the Act requiring the Applicant to remit a certain monetary amount for the release of the seized ring unlawful?", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-19", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 23–24", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "On judicial review, this court agrees with the position of the Respondent, as the court has no choice due to the legislation as specified. Ms. Nguyen has not shown that the determination by the Minister made pursuant s. 133 was unlawful. All of Ms. Nguyen’s evidence and argument was directed solely towards showing that she had not contravened s. 12 of the Act. As stated above, that inquiry cannot be made by this Court in an application for judicial review; it would have to be taken by means of an action within the current legislation; and, thus, the context for the court decision would be different. Ms. Nguyen has not provided any other evidence or argument in response to the Minister’s determination made pursuant to s. 133 of the Act regarding the release of the seized ring that could alter the decision bearing in mind its present context. Nevertheless, the court, in conclusion, fully acknowledges that although the factual evidence is overwhelmingly in Ms. Nguyen’s favour, the legislative provisions with the privative clause are so restrictive that the factual evidence, although fully considered, cannot make a difference under the legislative context in Ms. Nguyen’s case. VIII. CONCLUSION\n\nIn order to attempt to overturn the Minister’s determination pursuant to s. 131 of the Act that there has been a contravention of s. 12 of the Act, the Applicant would have to make an appeal by way of an action. The Applicant, by way of judicial review, has not been able to show that the Minister’s determination made pursuant s. 133 of the Act was unlawful.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-20", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 25–27", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "Recognizing the related, but separate, nature of the s. 131 and s. 133 determinations, it is open to this Court to suspend a judicial review of a determination made pursuant s. 133 of the Act until an appeal of a determination made pursuant s. 131 of the Act. Justice Sean Harrington stated in Samson v. Canada (Attorney General), 2008 FC 557 that when an application for judicial review of a determination made pursuant s. 133 of the Act is made before an appeal of a determination of a contravention of the Act has taken place, the judicial review ought to be suspended: [5] This implies, therefore, that it is best to file an application for judicial review of a penalty even before a hearing is held deciding the grounds of the offence. Clearly, if it were determined that no offence was ever committed, the penalty would fall and the judicial review would become moot. In any event, the judicial review ought to be suspended pending a decision on the matter before the Court.\n\nIn this case, however, given that Ms. Nguyen has not initiated any appeal of the Minister’s determination made pursuant s. 133 of the Act, this court cannot exercise a discretion it does not have. The court cannot suspend an application for judicial review when no action has been initiated. The fact that no action was initiated due to the financial considerations of the Applicant, as was clearly specified by Ms. Nguyen’s counsel during his oral representations, cannot change the nature of the limitation of the court’s discretion.\n\nTherefore, the court has no choice but to interpret the legislation rather than to formulate it. As a result, the application for judicial review must be dismissed. IX. OBITER", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-21", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 28–31", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "Due to the deference owed by this court under constitutional supremacy, as discussed in the introduction, it is outside of the procedural and technical legal framework of the decision which recognizes the restrictive language of the legislation, that a reckoning of the big picture can only be examined more fully in obiter subsequent to the decision itself.\n\nExceptional circumstances require an exceptional measure of care to ensure that no case falls through the cracks.\n\nIt is recognized due to the prescription period specified in the Customs Act, and, also, due to the high cost of actions before the court, an action is often not an option for applicants.\n\nA suggestion for the executive and legislative branches (as part of an indirect dialogue that exists between the three branches of government through jurisprudence) may be to consider that citizens or residents of Canada who are about to leave Canada, prior to departure, be more easily made aware that they are to make known for the purpose of customs officials any object of worth, leaving Canada on their person or in their luggage that they intend to bring back to Canada which may initiate questions in regard to customs duties on their return.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-22", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 32", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "The case at bar may assist as an example on the basis of the evidence: customs officials appeared to have based themselves on the belief that Ms. Nguyen had obtained the ring in question in Hong Kong, whereas she consistently indicated that she had been given the ring in Vancouver. In its seizure synopsis, customs officials determined that the origin or country of purchase of the ring was in Hong Kong (Certified Record at p. 151). Moreover, in its reasons for decision, the Minister’s Delegate refers several times to how Ms. Nguyen had claimed to receive the ring as a gift from a her boyfriend in Hong Kong (Certified Record at pp. 21, 26). This loose language leaves as ambiguous whether the Minister’s Delegate believed that the ring had been given to Ms. Nguyen in Hong Kong, even though the evidence only points to the boyfriend as being a businessman from Hong Kong. As stated above, Ms. Nguyen consistently indicated that she had been given the ring in Vancouver. In the customs officer’s own narrative report, the customs officer reports that Ms. Nguyen indicated to her that the ring was given to her in Vancouver (Certified Record at pp. 157). The Minister’s Delegate never makes a clear determination as to where the ring was received.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-23", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "paras 33–34", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "It appears that Ms. Nguyen did everything she reasonably could have done given her particular factual circumstances. While the decision stated that the appraisal and invoice of the ring “does not constitute evidence that the ring was legally imported into Canada or that applicable duties and taxes were accounted for” (Certified Record at p. 14); the evidence demonstrates that Ms. Nguyen provided as much documentation of the ring as she reasonably could have possibly done. As stated in the facts, Ms. Nguyen provided at the border an appraisal, an invoice, and a diamond grading report for the ring. The appraisal for the diamond in the ring was conducted by a gemological consultant in Vancouver on March 31, 2005. This appraisal suggested an insurance coverage of the diamond before its affixation to a gold ring at $124,800. The invoice was with respect to the cost of setting the diamond in a gold band. This invoice was issued by a jeweller located in Vancouver and was dated April 15, 2005.\n\nThe diamond grading report was with respect to the diamond and was dated September 15, 2003 in Antwerp, Belgium. Diamonds are usually imported from abroad by Canadian jewelers. As is clearly stated in the July 8, 2007 GLS Gemlab Limited letter, “Any Canadian jeweller can import loose diamonds and import mountings from Hong Kong or India, set the diamonds and sell these items in Canada” (Certified Record at p. 79). Thus, most diamonds purchased by consumers in Canada will have already been imported by Canadian jewelers. Private individual buyers of diamond rings would not have any evidence as to whether the diamonds were legally imported or that applicable duties and taxes were accounted for as that would have been done by those in the business thereof.", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-24", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 35", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "Moreover, as stated by the Applicant at paragraphs 24-25 of its Memorandum of fact and law, it is not unusual for people who have owned jewelry for a long time, such as Ms. Nguyen, to no longer possess the cash receipts with respect to all her jewelry. Here, the CBSA’s own jewelry appraisers give evidence that it is reasonable for the ring to have been in Canada for several years. In an appraisal dated March 7, 2007 made at the request of the government itself, the CBSA, GLS Gemlab Limited stated that the ring “has been worn for some time…” (Certified Record at p. 117). In a follow-up letter, GLS Gemlab Limited, mandated by the government itself as demonstrated above, stated that the original owner of the diamond in the ring would have most likely have been given a certificate describing the characteristics of the diamond. Nevertheless, GLS Gemlab Limited stated that “I meet many people who own laser engraved diamonds and they do not have the matching paper work” (Certified Record at p. 79).", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-56900-25", - "doc_type": "caselaw", - "act_code": "2009 FC 724", - "act_short": "Nguyen", - "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", - "marginal_note": "para 36", - "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", - "part": "Federal Court", - "division": "", - "text": "Finally, it does not appear reasonable for the recipient of a gift to ask the person who has given the gift for a sales receipt. Ms. Nguyen has also consistently stated that the ring was given to her in Vancouver by her boyfriend. While there may have been some confusion as to whether her boyfriend owned businesses in Hong Kong or in Vancouver, information relayed by Ms. Nguyen through a translator to a customs officer who initially asked several questions at once, these answers, in and of themselves, do not appear to constitute core evidence that would help lead to a determination of the origin of the ring. Ms. Nguyen’s documentary evidence appears to substantiate her response to the customs officers, yet, nevertheless, that has not changed her situation. JUDGMENT THIS COURT ORDERS that the application for judicial review is dismissed. “Michel M.J. Shore” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1390-08 STYLE OF CAUSE: THI NGOC NGUYEN and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: July 7, 2009 REASONS FOR JUDGMENT AND JUDGMENT: Shore J. DATED: July 15, 2009 APPEARANCES: Mr. Moses Kajoba FOR THE APPLICANT Ms. Suzanne Pereira FOR THE RESPONDENT SOLICITORS OF RECORD: KAJOBA & COMPANY Barristers & Solicitors Vancouver, British Columbia FOR THE APPLICANT MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia FOR THE RESPONDENT", - "current_to": "2009-07-15", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" - }, - { - "id": "fc-57473-1", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 1–2", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "On February 22, 2008, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration signed a certificate in which they state that Hassan Almrei is a foreign national who is inadmissible to Canada on security grounds. As required by subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, (\"IRPA\"), the certificate was referred to the Court for determination as to whether it is reasonable. These are my reasons for determining that the certificate is not reasonable.\n\nThese reasons take into account the information and other evidence heard in closed hearings in the absence of Mr. Almrei and his counsel and of the public. As set out in paragraph 83(1)(c) of the IRPA, the Court may, and shall on the request of the Minister, hear information or other evidence in the absence of the public if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person. A separate private set of reasons for judgment has been filed in the Designated Proceedings Registry of the Federal Court and will be accessible only to the Ministers and their counsel and to the Special Advocates and to any appellate court that may consider this matter further.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-2", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 3–4", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In the aftermath of the tragic events of September 11, 2001 (“9/11”), it was reasonable to believe that Hassan Almrei posed a risk to the security of Canada. On the information then available to officials and to the Court, the inference was compelling that he was an extremist who supported the ideology of Osama Bin Laden and was involved in a global false document network. In security intelligence terms, Almrei had a “pedigree”. He came from a Syrian family linked to the Muslim Brotherhood, an organization formerly known for terrorist acts. Raised in Saudi Arabia, he had travelled to Pakistan and Afghanistan to join the jihad against the communist regime in Kabul. He was known to have associated with a leader of the Arab Afghan mujahidin, Ibn al Khattab, and to have supported Khattab’s jihad against the Russians in Chechnya.\n\nFollowing his admission to Canada in 1999, Almrei was linked to persons believed on reasonable grounds to have extremist views. Almrei was known to have contacts in Canada and abroad from whom he could obtain false identity and travel papers. He had himself used a forged passport to come to Canada. He lied to Canadian authorities about his background and concealed his travels to Afghanistan and Tajikistan. Canada extended its protection to Almrei by recognizing him as a Convention refugee. He returned the favour by providing a forged Canadian passport and funds to an Arab Afghan associate who had crossed our border illegally, arranged a marriage of convenience for a failed refugee claimant and dealt in illicit drivers’ licenses.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-3", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 5", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In 2001, Almrei was at the very least an opportunist willing, for a suitable fee, to violate Canada’s laws while he took advantage of its generosity. His object was to gain Canadian permanent residency and Citizenship so he could travel freely abroad for business purposes. Prior to 9/11, this was known to the Canadian Security Intelligence Service (“CSIS”) and their counterparts in the Royal Canadian Mounted Police (“RCMP”). CSIS had been watching his movements and collecting information about him and his associates for over two years. The RCMP was conducting its own criminal investigation. Much of the information collected by both agencies was provided by human sources. CSIS saw Almrei as a “sleeper” and were content initially to keep him under surveillance and to identify his contacts. The events of 9/11 instantly changed that dynamic. Almrei was then viewed, on reasonable grounds, to be part of a much greater threat to North American security as someone who had the skills and the contacts to arrange for terrorists to cross borders on forged papers.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-4", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 6–7", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "If these proceedings were based solely on the information available to the Ministers and the Court in October 2001, I would have no difficulty in concluding that Almrei’s arrest and detention on a security certificate to contain the perceived threat was reasonable. But the Court is not engaged in that task. Nor is it conducting a judicial review of whether the Ministers who signed the fresh certificate in February 2008 made the correct decision. The question for the Court to determine is whether, on all of the information and other evidence presented in these proceedings, is the certificate reasonable to-day. Or, in other words, is the assertion that Almrei is presently a security risk based on objectively reasonable grounds.\n\nIn arriving at a conclusion on that question, the Court has considered information and evidence that was not placed before the Ministers when the decision was made to issue the 2008 certificate, and that was not previously presented to the Court, which has cast a different light on circumstances and events.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-5", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 8", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In these reasons, I will first set out the background to the issuance of the certificate, the procedural history of this application and the present legislative regime under which it was considered. Next, I will review the evidence and the issues, both legal and factual, that were raised during the proceedings. I will then outline the allegations concerning Mr. Almrei. Finally I will discuss my analysis and conclusions arising from the evidence and issues. Formal judgment will be reserved to allow the parties some time to review these reasons and propose questions for certification. An index is provided for convenient reference. INDEX (by paragraph numbers): Background 9-17 Procedural History of this Application 18-53 Legal Framework 54-57 Inadmissibility 58-62 “Member of an Organization” 63-69 “Terrorism” 70-74 Armed conflict exemption 75-79 “Danger to National Security” 80-81 Burden of Proof 82 Quality of the Evidence 83-85 Standard of Proof 86-105 Procedure 106-111 Role of the Special Advocates 112-113 The Issues 114-120 The Allegations 121-122 The “Information and Other Evidence” Overview 123-127 The Open Source Information 128-131 Third Party Information 132-140 Telecommunications Intercepts 141-145 Physical Surveillance Reports 146-148 Information Obtained or Derived from Torture or Cruel, Inhumane or Degrading Treatment 149-153 The Human Source Information 154-164 The Service Witnesses 165-201 Hassan Almrei 202-260 The Expert Opinion Evidence 261-262 Dr. Martin Rudner 263-286 Mr. Thomas Quiggin 287-322 Sheikh Ahmad Kutty 323-335 Dr. Lisa Given 336-348 Dr.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-6", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 8–9", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Brian Williams 349-394 Analysis Are the factual allegations against Almrei supported by the information and other evidence? 395-398 Osama Bin Laden, Al Qaeda and the “Bin Laden Network” 399-429 Almrei’s Travel and Status in Canada 430-434 Almrei’s association with Osama Bin Laden and support for jihad 435-455 Arab Afghan Connections 456 Ibn Khattab 457-464 Nabil Almarabh 465-469 Ahmed Al Kaysee 470 Hisham Al Taha 471 Involvement in False Documentation 472-478 Security Consciousness and Use of Clandestine Methodology 479 Should the Certificate be Stayed as an Abuse of the Court’s Process? 480-483 Lack of Disclosure/Inability to Meet the Case 484-489 Destruction of Evidence 490-492 Choice of Procedure 493-497 Breach of the Duty of Candour 498-503 Conclusion 504-509 Certified Questions 510-513 BACKGROUND\n\nIn January 1999, Almrei arrived at Pearson Airport using a false United Arab Emirates passport bearing a valid multiple entry visa, was admitted as a visitor, and subsequently claimed Convention refugee protection on the ground that he feared persecution in Syria. The Immigration and Refugee Board granted him protection in June 2000. He applied for permanent residence in November 2000.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-7", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 10–11", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "A certificate naming Almrei as a security risk was signed by the Minister of Citizenship and Immigration and the Solicitor General of Canada on October 19, 2001. Almrei was then taken into custody and detained in accordance with subsection 40.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, (“the former Act”). The matter was then referred to the Federal Court for a determination as to the reasonableness of the certificate. Hearings were held in October and November 2001. Following a ruling that he could not testify in a closed session, as he had requested, Mr. Almrei declined to provide evidence in that proceeding.\n\nThe Court concluded that the closed evidence, heard in the absence of Mr. Almrei and his counsel, provided reasonable grounds to believe that Mr. Almrei was a member of an international network of extremist individuals who supported the Islamic extremist ideals espoused by Osama Bin Laden and that Mr. Almrei was involved in a forgery ring with international connections: Almrei (Re), 2001 FCT 1288, [2001] F.C.J. No. 1772.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-8", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 12", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Efforts followed to remove Almrei from Canada. Opinions were issued by delegates of the Minister of Citizenship and Immigration that Almrei was a danger to the security of Canada and could be removed to Syria, his country of nationality. Mr. Almrei sought judicial review of those opinions in the Federal Court and brought several applications for release from detention: Almrei v. Canada (Minister of Citizenship and Immigration), 2004 FC 420, [2004] F.C.J. No. 509 affirmed, Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54, [2005] F.C.J. No. 213; Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FC 355, [2005] F.C.J. No.437 Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FC 1645, [2005] F.C.J. No. 1994; Almrei v. Canada (Minister of Citizenship and Immigration), 2007 FC 1025, [2007] F.C.J. No.1292.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-9", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 13", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Mr. Almrei’s appeal from the decision of the Federal Court of Appeal rejecting his challenge to the security certificate provisions of IRPA, as infringing sections 7 and 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (“the Charter”), was merged with those in the security certificate cases involving Adil Charkaoui and Mohammed Harkat. Reasons for judgment were issued by the Supreme Court of Canada on February 23, 2007 in Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9, [2007] S.C.R. 350 (“Charkaoui 1”). In its decision, the Supreme Court concluded that the IRPA regime for determining the reasonableness of security certificates and for reviewing the detention of named persons was inadequate to protect their interests when classified information was provided to a designated judge of the Federal Court during the closed proceedings.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-10", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 14–15", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Supreme Court declared that the procedures under IRPA for the judicial confirmation of certificates and for the review of the detention of the named persons violated the fundamental justice provisions of section 7 and had not been shown to be justified under section 1 of the Charter. Accordingly, the procedures were of no force or effect. In order to give Parliament time to amend the law, the Supreme Court suspended its declaration with respect to the invalidity of the certificate procedure for one year from the date of the judgment. After that year, the certificates concerning Mr. Almrei and any other named person that had been declared \"reasonable\" would lose that status. Should the Ministers wish to issue a certificate thereafter, a fresh determination of reasonableness would be required under the new process to be devised by Parliament. Similarly, any detention review occurring after the delay would be subject to the new process: (Charkaoui 1 at para. 140).\n\nThe legislative response to Charkaoui 1 was enacted within the one year timeline set by the Supreme Court. An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, S. C. 2008, c. 3 (\"Bill C-3\") received Royal Assent on February 14, 2008 and came into force on February 22, 2008. The amendments to IRPA enacted through Bill C-3 provided for the appointment of Special Advocates to represent the interests of named persons during closed security certificate proceedings and revised the detention review procedures set out in IRPA.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-11", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 16", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 (“Charkaoui II”) the Supreme Court of Canada considered the nature of the duty owed by the Service to retain and disclose information in its possession about a person named in a security certificate issued under subsection 77(1) of the Act. Previously, it had been the policy of the Service to destroy all operational notes after they had been transcribed into a report. The Supreme Court found this policy to be based upon a flawed interpretation of section 12 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (CSIS Act). The Court held that CSIS should be required to retain all of the information in its possession and disclose it to the Ministers and the designated judge in order to uphold the named person’s right to procedural fairness. If such were done, the Court reasoned, Ministers would be better positioned to make appropriate decisions on issuing a certificate. The designated judge would also be able to consider all of the evidence in determining what should be protected on national security grounds and what should be disclosed to the named person.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-12", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 17–18", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "On February 22, 2008, the date that the amendments to IRPA came into effect, the Ministers signed new certificates naming Mr. Almrei and four other persons as security risks and referred the certificates to the Federal Court for review under subsection 77(1) of IRPA. To initiate the present proceedings the Ministers filed a Notice of Referral of Certificate together with a top-secret Security Intelligence Report (“SIR”) with supporting reference materials. The SIR is a narrative report prepared by CSIS setting out its grounds for believing that a person is inadmissible to Canada. A public summary of the SIR entitled a Statement Summarizing the Information, with the corresponding open source reference material, was served on Mr. Almrei and filed with the Court. PROCEDURAL HISTORY OF THIS APPLICATION\n\nAs Mr. Almrei remained in custody on February 22, 2008, more than seven years after his arrest on the initial certificate, a review of his detention was the initial priority. In compliance with the Supreme Court’s decision in Charkaoui I, the revised statute required a detention review to begin within six months of the coming into force of the new legislation. It took time to resolve some preliminary matters including the appointment of counsel and the selection of Special Advocates. The detention review was begun on August 20, 2008 and continued through the fall months. Following a series of hearings, Mr. Almrei was ordered released from detention on strict terms and conditions. The grounds for that decision are set out in reasons for judgment issued on January 2, 2009: Re Almrei, 2009 FC 3, [2009] F.C.J. No. 1.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-13", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 19–20", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In correspondence dated September 12, 2008, in the DES-4-08 certificate, counsel for the Ministers advised the Court they had asked CSIS to examine closely the information and other evidence in each of the five certificate cases in order to determine whether original operational notes had been preserved in accordance with the decision of the Supreme Court in Charkaoui II. Further to motions filed by the respondent on September 30, 2008 (amended on October 31, 2008), a disclosure order was issued on October 10, 2008 in which CSIS was directed to produce all information and intelligence related to Mr. Almrei in its possession or holdings.\n\nCSIS was unable to meet the time-table initially fixed by the Court due to the quantity of records to be searched and the workload demands caused by similar orders in each of the other four certificate cases. Extensions of time were required to complete the work. In the interim, the proceedings continued, hearings were conducted and information was provided to the Court and the Special Advocates in response to undertakings made by CSIS and the Ministers' counsel during the detention review.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-14", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 21–22", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "On October 31, 2008 motions and a notice of constitutional question were filed by the respondent indicating his intention to challenge the standard of proof of \"reasonable grounds to believe\" set out in section 33 of the IRPA. Mr. Almrei sought an order that the standard of proof to be met by the evidence in the Court's determination of a certificate’s reasonableness pursuant to section 78 of the IRPA is to a balance of probabilities or, in the alternative, a declaration that the standard is inconsistent with the right to a fair hearing protected by section 7 of the Charter. In case management conferences with Mr. Almrei and counsel, I indicated that I would defer ruling on these matters until the completion of the evidentiary hearings.\n\nMr. Almrei had previously brought a motion challenging the constitutionality of subsections 85.4(2) and 85.5(b) of IRPA which limit communications by Special Advocates with the named persons and their counsel after the Special Advocates have had access to the closed information in the SIR. This was linked with similar motions brought on behalf of three of the other named persons and which were collectively heard and adjudicated by the Chief Justice. In written reasons and an order released on November 3, 2008 (Re Almrei, 2008 FC 1216, [2008] F.C.J. No. 1488), the Chief Justice dismissed the constitutional motion as premature without prejudice to any party's right to challenge the constitutionality of the legislation with an appropriate factual matrix.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-15", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 23", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "By order dated January 2, 2009, the Chief Justice directed that my colleague Justice Eleanor Dawson adjudicate upon two common issues of law that had arisen in four of the certificate proceedings in relation to the Charkaoui II production, including this matter. The two common issues were identified in the order as follows: a) What is the role of the designated judge with respect to the additional information disclosed by the Ministers pursuant to the decision of the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38? More specifically, does paragraph 62 of that decision require the judge to \"verify\" all information disclosed by the Ministers if the Special Advocates and counsel for the Ministers all agree that a portion of that information is irrelevant to the issues before the Court? b) Should the information disclosed to the named persons and their counsel be placed on the Court's public files in these proceedings? If so, when?", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-16", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 24–25", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "At paragraph 62 of its decision in Charkaoui II, the Supreme Court had made the following comments: As things stand, the destruction by CSIS officers of their operational notes compromises the very function of judicial review. To uphold the right to procedural fairness of people in Mr. Charkaoui's position, CSIS should be required to retain all the information in its possession and to disclose it to the ministers and the designated judge. The ministers and the designated judge will in turn be responsible for verifying the information they are given. If, as we suggest, the ministers have access to all the undestroyed \"original\" evidence, they will be better positioned to make appropriate decisions on issuing a certificate. The designated judge, who will have access to all the evidence, will then exclude any evidence that might pose a threat to national security and summarize the remaining evidence -- which he or she will have been able to check for accuracy and reliability -- for the named person. [Emphasis added]\n\nAs a result of the highlighted phrases, a question arose as to whether the designated judge in a certificate case must personally verify all of the information provided to the Court in conformity with the disclosure obligation imposed on CSIS.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-17", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 26", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In reasons for judgment released on March 5, 2009 (Re Almrei, 2009 FC 240, [2009] F.C.J. No. 346), Justice Dawson considered that the reference to verification in the Charkaoui II judgment stemmed from the context of the former legislative scheme, not that enacted by Bill C-3. The Supreme Court could not have intended that the Court consider information which the Ministers and the Special Advocates had agreed was irrelevant. Where the information was relevant, the Court was required under the amended statute to determine whether disclosure would be injurious to national security. That responsibility could not be delegated to counsel.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-18", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 27", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "At paragraph 62 of her reasons, Justice Dawson concluded as follows,: (a) Where the Ministers and the special advocate agree that material disclosed by the Ministers pursuant to Charkaoui 2 is irrelevant to the issues before the Court, the Court may rely upon that agreement. In such a case, the Court need not verify information that the Ministers and the Special Advocates agree to be irrelevant. (b) No information filed with the Court in confidence pursuant to Charkaoui 2 can be disclosed to the person named in a security certificate without the prior approval of the Court. (c) Information or evidence disclosed to the named persons pursuant to Charkaoui 2 should be disclosed directly to counsel for each person named in a security certificate. The Charkaoui 2 disclosure should not be placed on the Court’s public file. Such information or evidence would only become public if it is relied upon by a party and placed into evidence. (d) Summaries of evidence or information made pursuant to paragraph 83(1)(e) of the Act must be placed on the Court’s public file because they relate to information relied upon by the Ministers and to what transpired in the in camera proceedings.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-19", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 28–30", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Additional issues outside the scope of the Chief Justice’s Order were raised at the hearing before Justice Dawson. It was argued that the designate judge should not have regard to any portion of the Charkaoui II disclosure unless it was necessary to adjudicate a disagreement or it was relied upon by one of the parties. Justice Dawson noted, at paragraphs 34-36 of her reasons, that it was premature to make any pronouncements circumscribing the role of the designated judge in reviewing the material absent an understanding of the content and submissions on a proper evidentiary basis. Each case would depend on its own circumstances and there could be many reasons for the Court to review the information.\n\nJustice Dawson expressly made no determination about the permissibility of the Ministers later seeking to augment the information upon which the security certificate is based, or to amend the report filed in support of the certificate, by relying upon a portion of the Charkaoui II disclosure (endnote 1 to the Reasons for Order). The question of whether the Ministers could augment the information in the SIR became an issue in this case but the additional information was from sources other than the Charkaoui II disclosure.\n\nOn February 9, 2009, CSIS having completed their file search, the Ministers filed bound volumes entitled “Charkaoui II Production” including DVDs containing approximately 1276 records of varying size retrieved from the CSIS operational databank in an electronic format.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-20", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 31–32", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Some of the information in the produced records was redacted or blacked out by CSIS as it concerned the investigation of other persons and was, in their view, irrelevant as outside the scope of the October 10, 2008 Order. Internal administrative information such as the names of CSIS employees, file and phone numbers and information which would disclose operational methods or identify human sources was also redacted. I considered it necessary to review unredacted or clear versions of these records to ensure that the redactions were valid and did not exclude information material to the proceedings. Based on that review, I was satisfied that for the most part, the redactions had been appropriate in that they did not obscure information that was material to this case and necessary for the Court and the Special Advocates to perform their functions in the closed proceedings.\n\nTo illustrate, included in the records were documents such as periodic situation or overview reports concerning all of the CSIS investigative targets during the relevant time-frame. These records were produced because they incidentally contained Mr. Almrei’s name and information concerning him. The remainder of the information in these documents was irrelevant to these proceedings and was properly redacted in the disclosed records. In this respect, I would note that paragraph 83(1)(j) of the IRPA provides that the Court shall not base a decision on information or other evidence provided by the Minister if the judge determines that it is not relevant or if the Minister withdraws it.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-21", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 33–34", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In some instances, while the redacted information was not on its face material to these proceedings, I considered that the redactions had been excessive and tended to unnecessarily obscure portions of the records. For example, the names and other identifying particulars of casual contacts and sources of information, including police officers, was routinely redacted in these documents in keeping with the Service’s policy of protecting human sources. This information was not sensitive and would not have put individuals at risk if inadvertently released. On March 20, 2008 I ordered reconsideration of the redactions in the documents filed on February 9, 2009. Ministers were also directed to conduct a further search for additional documents relating to certain named individuals with a connection to this case. On March 27, 2009 the Ministers filed revised copies of the February 9, 2009 document production with a number of redactions removed.\n\nIt became apparent during the review of the February 9th documents that CSIS had conducted a thorough search of their operational databank for any records that contained Mr. Almrei’s name (and his “kunya” or respect name), and variants thereof. A great deal of this material was repetitive and of no evidentiary value, as it merely reiterated previously collected information in the periodic reports required by the administrative procedures of the Service.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-22", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 35–37", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "It is doubtful that the Supreme Court had this type of disclosure in mind when they stated that “…CSIS should be required to retain all the information in its possession and to disclose it to the Ministers and the designated judge” at paragraph 62 of Charkaoui II. In hindsight, a more focused search would have saved considerable time. Produced records that were of value included electronic intercept and physical surveillance reports and reports of requests for information addressed to foreign agencies and their responses, the implications of which will be discussed below.\n\nOn March 24-25, 2009 the Ministers filed an Amended Security Intelligence Report (“A/SIR”) and an additional reference volume, and an Amended Summary of the Security Intelligence Report together with corrections to the reference index of February 22, 2008 and additional public and private reference material. The respondent and the Special Advocates objected to the filing of this new material more than a year after the issuance of the certificate.\n\nIn Charkaoui II, the Supreme Court commented on the practice of submitting evidence to the designated judge considering the reasonableness of the certificate which was not before the Ministers when they signed it. The Court concluded that any new evidence should be admitted, regardless of whether it is submitted to the designated judge by the Ministers or by the named person. The judicial review process is not limited to a consideration of the material before the Ministers or to the bases of their initial decision and new evidence can be as beneficial to the named person as to the Ministers: Charkaoui II at paragraphs 70-73.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-23", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 38–39", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In my view, such a practice may in some circumstances constitute an abuse of the Court’s process where, for example, information is unfairly withheld for tactical reasons and provided too late in the proceedings for the named person to respond, as was alleged here. In this instance, there was no evidence before me to substantiate such a finding. The material was accepted subject to further consideration following closing arguments. I recognize, however, that the practical effect of this decision was to allow the Ministers to bolster their case following the strong challenge presented by the respondent during the detention review hearings. The Ministers filed a sizable body of material that had not been referenced or considered in the decision to issue the certificate.\n\nOn March 27, 2009 I dismissed motions brought by the respondent in anticipation of the reasonableness hearings: Re Almrei, 2009 FC 322, [2009] F.C.J. No. 681. The first motion, regarding the constitutionality of subsections 85.4(2) and 85.5(b) of the IRPA, in relation to communications between the respondent and the Special Advocates, was largely based on the arguments previously heard and determined by Chief Justice Allan Lutfy in November.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-24", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 40–41", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "I concluded that the issue of the constitutionality of the restrictions on communication by the Special Advocates continued to be premature in the absence of a factual basis. The alternate remedy sought, to authorize the respondent to submit questions to the Special Advocates in a sealed envelope and to receive their replies without disclosure to the Court or to the Ministers, was also denied. I ruled that while there was no obstacle to the respondent asking questions of the Special Advocates without informing the Court or the Ministers, the Special Advocates would have to obtain judicial authorization prior to communicating their answers to the respondent so as to respect the Court’s obligation to protect information that would injure Canada’s national security.\n\nThe Special Advocates were authorized throughout the proceedings to communicate with the respondent and his counsel regarding scheduling matters and, from time to time, to discuss certain legal issues so long as this did not involve disclosure of top secret information they had access to in the closed materials. They were also authorized to communicate with the Special Advocates appointed in the other security certificate cases regarding common disclosure issues stemming from the closed hearings. On May 14, 2009, for example, Mr. Copeland was authorized to communicate to Mr. Almrei and his counsel that the top secret material filed by the Ministers did not rely upon information that was obtained by or derived from the interrogation of detainees by the US authorities at Guantánamo Bay, Cuba or at any of the so-called \"black sites\" said to be operated by US intelligence services. On May 20, 2009, Mr. Cameron was authorized to communicate with counsel for Mr. Almrei about the redacted contents of a RCMP report.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-25", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 42–43", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In his motions, the respondent also sought a declaration that the Charter required the importing of the balancing test in section 38.06 of the Canada Evidence Act into paragraph 83(1)(e) of IRPA so as to allow for the disclosure of information where the interests of justice outweighed the injury to national security. I concluded that this motion was also premature as the situation anticipated by the respondent had, as yet, not occurred. I also declined to issue a declaration of principles with respect to disclosure at that time, as requested, for similar reasons.\n\nAs matters progressed in the case, it did not prove necessary to decide the balancing issue as the conflict between the competing security and liberty interests did not arise on a disclosure motion. The Ministers objected to the disclosure of certain telecommunications and physical surveillance reports as they were not relied upon in support of the SIR and did not, on their face, provide material evidence of an exculpatory nature. But they resisted this disclosure on the grounds of a lack of relevancy and not because their release would injure national security. Upon considering the matter and concluding that they could be relevant and were non-injurious, summaries of the reports were ordered disclosed to the respondent.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-26", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 44–45", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The closed evidentiary hearings in the fall of 2008 had proceeded on the understanding that the Ministers would present testimony from Service witnesses relating to both Mr. Almrei's alleged dangerousness and flight risk, for the purposes of the detention review, and to the reasonableness of the certificate. The respondent elected not to cross examine the Service witness who testified in the public hearing on matters going only to reasonableness on the understanding that he would be recalled for that purpose. For operational reasons, the Service witness was no longer available for the new dates scheduled when the reasonableness hearing was postponed. In the circumstances, the evidence of the witness relating to reasonableness was struck out and Ministers were granted leave to call a new Service witness to give evidence relating to the allegations at the public hearing. The same Service witness who testified in the closed hearings on detention gave evidence in the closed hearings on reasonableness.\n\nOn April 17, 2009 following a series of closed hearings respecting disclosure to the respondent, the Ministers filed a document entitled Public Disclosure of Information used in the Amended Security Intelligence Report (SIR). This included summaries of intercepted conversations and physical surveillance reports that were relied upon in the A/SIR, and information provided to CSIS by CIC and the CBSA that was used in the A/SIR.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-27", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 46–49", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "On April 24, 2009 the Ministers filed documents entitled Disclosure of Information in the Charkaoui II Production. This consisted of summaries of intercepted communications involving Mr. Almrei between September 12, 2001 and October 18, 2001 together with an overview summary of physical surveillance reports concerning Mr. Almrei between August 1999 and October 2001.\n\nPublic evidence hearings were conducted over the course of 18 days in Toronto between April 27, 2009 and May 27, 2009. The testimony will be described below. On six occasions during those hearings, the court held in camera and ex parte conferences in chambers with CSIS counsel and the Special Advocates to discuss disclosure and other issues relating to the closed information. A security cleared court reporter and registry officer were present to ensure the maintenance of a record.\n\nThe parties filed extensive written submissions on the factual and legal issues in these proceedings and public oral argument was heard in Toronto on July 2, 3, 6, 2009.\n\nClosed hearings were held in Ottawa to address questions which had arisen with respect to the reliability of classified information provided to the Court and to the Special Advocates. On April 3, 2009 I ordered CSIS to conduct a search for any documents or other records in the possession of the Service not included in the February 9, 2009 documents which contained an assessment of the credibility and reliability of the information provided by specified human sources. The Ministers filed additional information respecting the human sources on May 1, 2009 and, on May 15, 2009, a Supplementary Response to the April 3, 2009 Order. On May 25, 2009 the Ministers fled a Revised and Amended Source Exhibit.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-28", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 50–52", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "On June 3, 2009, I issued a confidential direction to the Ministers and CSIS for production to the Court and the Special Advocates of copies of documents and other records from the CSIS human source files and instructions concerning a review of the files. On June 9, 2009 I ordered production of the original source exhibits filed with the Court in the prior certificate proceedings. On June 17, 2009, an Order was issued for production of the source exhibits sworn in support of warrants issued in 2000 and 2001 relating to the respondent. That material was delivered and the Ministers filed a document entitled a “Source Précis” on June 22, 2009 containing additional and revised information.\n\nExamination and cross-examination of service witnesses with respect to issues arising from these documents and, more generally, with respect to the closed information relied upon by the Ministers in the A/SIR, took place in Ottawa between June 22 and 26, 2009. Closed oral submissions were heard in Ottawa on July 27-28, 2009.\n\nOn July 24, 2009 the Special Advocates brought a motion in the closed proceedings to have the security certificate quashed on the grounds that it was an abuse of the Court’s process. The Ministers filed their written response on August 21, 2009. The respondent was informed of this on August 26, 2009. Reply submissions were received from the Special Advocates on September 4, 2009. While I deal with that motion in greater detail in my closed reasons due to the sensitive nature of the information referenced, I will also touch on it in these reasons.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-29", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 53–55", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "A review of the release conditions was begun on July 28, 2009 and continued in a public hearing on September 14, 2009. At that time, counsel for the Ministers advised that they wished to present information to the Court in a closed hearing. The proceedings were adjourned for closed hearings, conducted over the following two weeks during which the Court considered and authorized the disclosure of public summaries of a new CSIS threat assessment and a CBSA risk assessment. In the course of those hearings, additional issues arose which required the postponement of the public condition review proceedings. At the request of the respondent, on October 5, 2009 they were adjourned sine die pending the outcome of the reasonableness determination. LEGAL FRAMEWORK\n\nThe relevant legislative provisions for the purposes of this case are set out in Divisions 4 and 9 of Part 1 of IRPA. Division 4 sets out the rules for determining, in general, inadmissibility to Canada. Division 9 deals with certificates and the protection of information. It will be necessary also to touch briefly on sections of the Criminal Code and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.\n\nIt is well established that non-citizens do not have an unqualified right to enter or remain in the country: Chiarelli v. Canada (Minister of Citizenship and Immigration), [1992] 1 S.C.R. 711, [1992] S.C.J. No. 27. Permanent residents enjoy a qualified right to remain so long as they comply with any conditions imposed under the Regulations enacted under the Act; foreign nationals who are not permanent residents may be permitted to remain only on a temporary basis.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-30", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 56–57", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Parliament has the constitutional authority to define the terms under which non-citizens, such as Mr. Almrei, may enter and stay in Canada and the Executive has the duty to enforce those terms and in doing so, may exercise considerable discretion, subject to the principles of fairness, to determine whether it is advisable for a non-citizen to be removed. Deportation does not, in itself, violate a non-citizen’s rights under the Charter: Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, [2005] S.C.J. No. 31, at paragraph 56. But actions associated with the deportation of a non-citizen, such as the procedures employed in the certificate process, may do so: Charkaoui I, above at paragraph 65.\n\nBoth permanent residents and foreign nationals are inadmissible to Canada for security concerns, for violating human or international rights, serious criminality, organized criminality or for misrepresentation (Division 4 of IRPA – Inadmissibility). Security certificates may only be issued in respect of a permanent resident or foreign national. Inadmissibility", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-31", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 58–59", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Section 34 of IRPA identifies those persons who are inadmissible on security grounds. It reads as follows: s.34 (1) A permanent resident or a foreign national is inadmissible on security grounds for art.34 (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; a) être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; (b) engaging in or instigating the subversion by force of any government; b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; (c) engaging in terrorism; c) se livrer au terrorisme; (d) being a danger to the security of Canada; d) constituer un danger pour la sécurité du Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada; (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).\n\nWhere a security certificate asserts inadmissibility on more than one ground, each ground must be read disjunctively. If any one ground is established, the certificate is to be determined to be reasonable: Zundel (Re), 2005 FC 295, [2005] F.C.J. No. 314, at paragraphs 16 and 17.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-32", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 60–62", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In this case, paragraphs 34(1) (a) (b) and (e) of IRPA have no application. The allegations against Mr. Almrei are that he constitutes a danger to the security of Canada as set out in paragraph 34(1)(d), has engaged in terrorism contrary to paragraph 34(1)(c) and is a member of an organization as described in paragraph 34(1)(f). He is said to have engaged in terrorism only in a broad sense in that by participating in the Afghan jihad and supporting Ibn al Khattab’s Chechen jihad, he associated with and supported persons who are believed on reasonable grounds to have committed terrorist acts and is therefore complicit in those acts. He is alleged to share the ideology of Osama Bin Laden and has or is prepared to offer material support to an organization, the “Bin Laden Network” which has engaged in terrorism. There is no allegation that Almrei has directly engaged in any act of violence that might endanger the lives or safety of any person in Canada.\n\nThese matters are mixed questions of fact and law: Poshteh v. Canada (Minister of Citizenship and Immigration) (F.C.A.), 2005 FCA 85, [2005] F.C.J. No. 381 (“Poshteh”). It is a question of law what the statute or legal principle means and a question of fact what the evidence discloses. A mixed question of fact and law requires the application of the statute or principle to the facts.\n\nIn this case, legal issues include the interpretation of the terms \"member\" and “organization” in paragraph 34(1)(f) and “danger to the security of Canada” in paragraph 34 (1) (d). It is then a question of mixed question of fact and law whether Almrei falls within the scope of those provisions: Mendoza v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 934, 317 F.T.R. 118, at paragraphs.12-14. “Member of an Organization”", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-33", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 63–64", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "There is no definition of these terms in the statute and the courts have not attempted a precise and exhaustive interpretation of their meaning. As was stated by Justice Rothstein in Canada (Minister of Citizenship and Immigration) v. Singh 1998 CanLII 8281 (F.C.), (1998), 151 F.T.R. 101 (F.C.T.D.), at paragraph 52: The provisions deal with subversion and terrorism. The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not therefore easily identifiable. The Minister of Citizenship and Immigration may, if not detrimental to the national interest, exclude an individual from the operation of subparagraph 19(1)(f)(iii)(B). I think it is obvious that Parliament intended the term \"member\" to be given an unrestricted and broad interpretation.\n\nThe Federal Court of Appeal cited this passage with approval in Poshteh, above, at paragraphs 27 to 29. In Chiau v. Canada (Minister of Citizenship and Immigration), [2001] F.C. 297, [2000] F.C.J. No. 2043, the Court of Appeal held that being a member means simply \"belonging\" to an organization. This Court has consistently applied an unrestricted and broad interpretation to the meaning of \"member\": Ahani (Re), (1998), 146 F.T.R. 223, [1998] F.C.J. No. 507; Ikhlef (Re), 2002 FCT 263, [2002] F.C.J. No. 352; Harkat (Re), 2005 FC 393, [2005] F.C.J. No. 481.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-34", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 65–67", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The meaning of \"organization\" has attracted less judicial attention as the issue in most cases in which the term is applied is not whether the organization actually exists, which is normally not in dispute, but whether it has been responsible for terrorist acts: see for example Jalil v. Canada (Minister of Citizenship and Immigration), 2007 FC 568, [2007] F.C.J. No. 763. In this case, the existence of a “Bin Laden Network”, as broad as the Ministers characterize it, is a matter of controversy between the parties.\n\nIt is accepted in the jurisprudence that terrorist organizations are “loosely structured groups that do not apply the niceties of agency law”, as Justice Rothstein said in Husein v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1375 at paragraph 5. In Ikhlef, above, at paragraph 64, Justice Blais, as he was then, referred to an organization as \"a community of interests and thoughts and regular meetings with persons who were pursuing the same goals\".\n\nIn Thanaratnam v. Canada (Minister of Citizenship and Immigration), 2004 FC 349, [2004] 3 F.C.R. 301, rev’d on other grounds, 2005 FCA 122, [2006] 1 F.C.R. 474 (Thanaratnam FC) at paragraph 31, Justice James O’Reilly identified the characteristics of an organization as “identity, leadership, a loose hierarchy and a basic organizational structure”. In Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198 at paragraph 38, Justice Linden endorsed these factors as helpful in making a determination under s. 37 but considered that no one of them is essential. He held that an “unrestricted and broad” interpretation should be given to “organization” (at paragraph 36).", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-35", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 68–69", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "There is no temporal nexus in the statute between membership in the organization and the timeframe in which terrorist acts may be attributed to the group. A current lack of dangerousness does not avail the named person if he is found to be a member. The question is whether the person is or has been a member of that organization, not whether the person was a member when the organization carried out its terrorist acts: Al Yamani v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1457, [2006] F.C.J. No. 1826, at paras. 11-13; Jaballah (Re), 2006 FC 1230, [2006] F.C.J. No. 1706, at para. 38; Sittampalam, above, at paragraph 20.\n\nThe effect of the statute and this line of authority is, therefore, that if I find that Mr. Almrei was at any time a member of an organization that there are reasonable grounds to believe has engaged in terrorism at some time in the past, he is inadmissible and a finding that he is no longer a member would be to no avail. The question may remain open whether the organization which committed the terrorist acts is the same organization as that to which the member belonged at the relevant times: Gebreab v. Canada (Minister of Public Safety and Emergency Preparedness) 2009 FC 1213. “Terrorism”", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-36", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 70–71", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "“Terrorism” is not defined in the statute. The term has also been given an unrestricted and broad interpretation in the jurisprudence. In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] S.C.J. No. 3 at paragraph 98, the Supreme Court defined the word, in the context of the former Act and, following the language of the International Convention for the Suppression of the Financing of Terrorism, as including: …any “act intended to cause death or serious bodily injury to civilians, or to any other person not taking an active part in the hostilities in a situation of armed conflict when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act”. This definition catches the essence of what the world understands by “terrorism”. Particular cases on the fringes of terrorist activity will inevitably provoke disagreement. (Emphasis added)\n\nAny attempt to define “terrorism” in the immigration context must also now take into account the definition of “terrorist activity” found in subsection 83.01(1) of the Criminal Code: Soe v. Canada (Minister of Citizenship and Immigration), 2007 FC 671, [2007] F.C.J. No. 913. That definition is in two parts. The first part links the meaning of the term to the commission of certain listed offences enacted by Canada in the course of domestic ratification of international conventions and treaties against terrorism.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-37", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 72–74", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The second part of the definition of terrorist activity in the Criminal Code, includes a number of elements which require proof of political, religious or ideological purpose, an intention to intimidate or compel action or inaction on the part of a government, organization or person and harmful consequences such as death, serious property damage or interference with essential services.\n\nThe motive clause of the definition, paragraph 83.01 (1) (b) (i) (A), was found to be unconstitutional by Mr. Justice Rutherford of the Ontario Superior Court in R v. Khawaja, [2006] O.J. No. 4245. That decision was expressly not followed by Mr. Justice Patillo of the same court in United States of America v. Nadarajah, [2009] O.J. No. 946, an extradition case. For the purposes of these proceedings, I do not consider it necessary to express an opinion on that issue.\n\nAs I understand the Ministers’ case, there are no allegations against Mr. Almrei that he committed any of the acts or omissions that would constitute an offence under either part of the Criminal Code definition. Rather the Ministers’ claim is that he engaged in terrorism indirectly by participating in jihad and in supporting terrorist acts committed by Afghans or Afghan Arabs in Afghanistan, Tajikistan, Dagestan and Chechnya. Armed conflict exemption", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-38", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 75–76", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Exempted from the Criminal Code definition of terrorist activity is conduct committed during an armed conflict and that, at the time and place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law. The armed conflict exemption is relevant in these proceedings only in so far as it might apply to the actions of Afghan mujahedin such as Abdul Rasul Sayyaf and to Afghan Arabs such as Ibn Khattab with whom Almrei was associated.\n\nAlthough the Public Summary does not include a direct characterization of Ibn Khattab as a terrorist, the Ministers’ submissions speak of his “terrorist activities” in Chechnya. Sayyaf is said to have been complicit in the commission of war crimes against the civilian population and to have sheltered and mentored terrorists who passed through his camps. Mr. Almrei’s contacts with Khattab and Sayyaf are proffered as evidence of his alleged “membership and complicity in terrorist activities”. The respondent submits that, to the extent that he was involved with Sayyaf and Khattab, and at the material times, if their activities are covered by section 83.01, he should also be covered by this exemption.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-39", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 77–79", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In Khawaja, above, Mr. Justice Rutherford considered that the acts falling within the exemption are only those ones which are considered by the laws of war to be legitimate during such a conflict. He noted that the provision is intended to remove from the ambit of the terrorism provisions of the Criminal Code, acts which are necessarily a part of war, so long as those war activities are conducted in accordance with the customary or conventional rules of war, stating at paragraph 127: The exception shields those who do acts while engaged in an armed conflict that would otherwise fit the definition of terrorist activity from prosecution as terrorists as long as the acts are within the internationally recognized principles governing warfare.\n\nThe Ministers submit that the activities of Sayyaf and Khattab at issue in this proceeding fall outside the armed conflict exemption as the exemption does not apply when the victims are persons not taking an active part in the conflict. They point to provisions of the Geneva Conventions and the Rome Statute which make it clear that terrorist activities are prohibited during armed conflict: Fourth Geneva Convention; Article 33; Protocol I, Article 51.2; Protocol II, Article 13.2. Causing terror to the civilian population is prohibited under international humanitarian law and constitutes a war crime under international criminal law: Prosecutor v. Stanislav Galić, Case No.IT-98-29-A (ICTY).\n\nThe issue is, therefore, a question of mixed fact and law whether acts committed in the course of an armed conflict would fall within the legitimate scope of what is permitted under international law. “Danger to National Security”", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-40", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 80", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The meaning of “danger to national security”, as the expression appeared in the former Act, was discussed by the Supreme Court in Suresh, above. The Court observed, at paragraph 83, that the phrase was not synonymous with membership in a terrorist movement although the two concepts may be related, and, at paragraph 84, that it does not mean the same as danger to the public or any member of the public. But paragraph 34 (1) (d) calls for a present finding of dangerousness.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-41", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 81", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Subject to those qualifications, the Court said at paragraph 85: [w]e accept that a fair, large and liberal interpretation in accordance with international norms must be accorded to “danger to the security of Canada” in deportation legislation. We recognize that “danger to the security of Canada” is difficult to define. We also accept that the determination of what constitutes a “danger to the security of Canada” is highly fact-based and political in a general sense. All this suggests a broad and flexible approach to national security and, as discussed above, a deferential standard of judicial review. Provided the Minister is able to show evidence that reasonably supports a finding of danger to the security of Canada, courts should not interfere with the Minister’s decision. And at para. 90: These considerations lead us to conclude that a person constitutes a \"danger to the security of Canada\" if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be \"serious\", in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible. Burden of Proof", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-42", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 82–83", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "As stated by the Federal Court of Appeal in Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] F.C.J. No. 399, at paragraph 16, the burden of proof, standard of proof and the quality of the evidence necessary to meet the standard of proof are three different factual realities and legal concepts which should not be confused. In this case, there is no dispute between the parties that the evidentiary burden and the legal burden of persuasion rest with the Ministers. Quality of the Evidence\n\nThe quality of the evidence required to meet the standard of proof is set out in paragraph 83(1)(h) of the statute. That provision authorizes the judge to receive into evidence anything that, in the judge’s opinion, is “reliable and appropriate” (“…digne de foi et utile”), even if it is inadmissible in a court of law, and to base a decision on that evidence. Thus, the best evidence rule does not apply and hearsay evidence such as that provided to the Service by a human source or third party information collected by a foreign or domestic intelligence or law enforcement agency may be relied upon: Almrei (Re), 2009 FC 3, [2009] F.C.J. No. 1, at paragraph 53.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-43", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 84–85", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Both official language versions of the statute are authoritative and require consideration of the shared meaning of the two texts: R. v. Daoust, [2004] 1 S.C.R. 217, [2004] S.C.J. No. 7. \"Appropriate\" (\"utile” in French) was the term used in the pre-Bill C-3 statute and in this context has the sense of “proper”, “fitting” and “useful”: Shorter Oxford English Dictionary, Fifth Edition; In French, the word “utile” means “worthwhile”, “satisfies a need”; Le Petit Robert, 2006. I read the two versions as requiring more than mere relevance. Evidence may be relevant but not useful or fitting for a variety of reasons including the manner in which it was obtained. This is reinforced where the term is coupled with \"reliable\" (“digne de foi”) which imports a notion of “trustworthy”, “safe”, “sure”, “worthy of belief”. In the criminal law context, the manner in which evidence was obtained may make it unreliable as, for example, evidence obtained through the use of torture, and may result in the denial of fair trial rights: R. v. Hape, 2007 SCC 26, [2007] S.C.J. No. 26, at paragraph 109; R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57, at paragraph 47. Parliament has expressly ordained that such information shall not be considered reliable and appropriate in certificate proceedings: ss. 83(1.1).\n\nDivision 9 repeatedly refers to “information and other evidence”. For the purposes of this part of IRPA, section 76 defines “information” (“renseignements”) as security or criminal intelligence information and information that is obtained in confidence from a source in Canada, the government of a foreign state or an international organization or an institution of such foreign state or organization. Standard of Proof", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-44", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 86–89", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Under subsection 77(1), the Ministers may only issue a warrant for the arrest and detention of a person named in a certificate if they have reasonable grounds to believe that the person is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal (IRPA, s.81).\n\nUnder the marginal note “Rules of Interpretation”, section 33 of IRPA provides that the facts that constitute inadmissibility under section 34 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.\n\nThe Supreme Court of Canada has determined that “reasonable grounds to believe” requires an objective basis for the belief in the alleged facts based on compelling and credible information: Suresh, above, at para. 90; R v. Zeolkowski, [1989] 1 S.C.R. 1378, [1989] S.C.J. No. 50, at page 1385.\n\nJustice Dubé in Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.), [1998] F.C.J. No. 131, at paragraph 27, described the standard of proof required to establish “reasonable grounds” as: … more than a flimsy suspicion, but less than the civil test of balance of probabilities. And, of course, a much lower threshold than the criminal standard of \"beyond a reasonable doubt\". It is a bona fide belief in a serious possibility based on credible evidence.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-45", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 90–92", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Justice Simon Noël further explained the standard as follows in Charkaoui (Re), 2005 FC 248, [2005] F.C.J. No. 269, at paragraph 30: The \"reasonable grounds\" standard requires more than suspicions. It also requires more than a mere subjective belief on the part of the person relying on them. The existence of reasonable grounds must be established objectively, that is, that a reasonable person placed in similar circumstances would have believed that reasonable grounds existed:\n\nThe standard is, therefore, somewhere between \"mere suspicion\" and the balance of probabilities. It is higher than the standard applied in the control order cases in the United Kingdom which requires reasonable grounds for suspecting involvement in terrorism related activity: see for example Secretary of State for the Home Department v. AF and Another, [2009] UKHL 28 [SSHD v. AF], at paragraphs 62-63. The habeas corpus proceedings relating to Guantanamo detainees are being conducted in the U.S. District Court on a preponderance of the evidence standard: Al Mutairi v. United States, 2009 WL 2364173, (D.D.C. July 29, 2009).\n\nThe Ministers contend that the Court’s determination should also be made on the reasonable grounds to believe standard. The respondent’s position is that it should be the normal civil standard of proof on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, [2008] S.C.J. No. 54, at paragraph 40. He argues that the amendments contained in Bill C-3 which have changed the Court’s role from a review of the reasonableness of the Ministers' opinion to a determination of the present reasonableness of the certificate calls for a higher standard. Moreover, he contends, application of the lower standard would not satisfy the fundamental justice requirements of section 7 of the Charter.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-46", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 93–94", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In reviewing the role of the designated judge in certificate cases, the Supreme Court has noted that as IRPA subsection 82(1), now section 81, provided that the Ministers’ decision to detain a permanent resident was based on “reasonable grounds to believe”, it is “…logical to assume…” that the same standard would be used by the judge reviewing the detention: Charkaoui 1, para. 39. The Ministers' position, contested by the respondent, is that this is conclusive authority for the application of the same standard to the reasonableness determination. I am not so sure. The Supreme Court’s reference to “reasonableness” as the standard for determination of the certificate issue in the same paragraph appears to recognize that there is a difference.\n\nWhere the legislation requires “reasonable grounds to believe” a certain fact, the standard has been interpreted as meaning that proof of that fact itself is not required. Evidence that falls short of establishing the fact will be sufficient if it is enough to show reasonable grounds for a belief in the fact: Canada v. Jolly, [1975] F.C. 216 (C.A.) at pp. 225-226.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-47", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 95", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Jolly was a case under s. 5(1) of the former Act, in which the Federal Court of Appeal addressed the inadmissibility of a person who was a member of an organization or group “concerning which there were reasonable grounds for believing that it promotes or advocates … subversion by force”. At paragraph 18 the Court stated: … But where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression \"reasonable grounds for believing\" implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc. At paragraph 22, the Court of Appeal observed that: Subsection 5(l) does not prescribe a standard of proof but a test to be applied for determining admissibility of an alien to Canada, and the question to be decided was whether there were reasonable grounds for believing, etc., and not the fact itself of advocating subversion by force, etc. No doubt one way of showing that there are no reasonable grounds for believing a fact is to show that the fact itself does not exist. But even when prima facie evidence negativing the fact itself had been given by the respondent there did not arise an onus on the Minister to do more than show that there were reasonable grounds for believing in the existence of the fact.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-48", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 95–96", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In short as applied to this case it seems to me that even after prima facie evidence negativing the fact had been given it was only necessary for the Minister to lead evidence to show the existence of reasonable grounds for believing the fact and it was not necessary for him to go further and establish the fact itself of the subversive character of the organization… (Emphasis added)\n\nThe passage quoted from paragraph 18 of Jolly has been relied upon in subsequent jurisprudence as setting the bar below the civil standard. I would have no difficulty with that in the context of a judicial review of the adequacy of the Minister’s grounds for making an inadmissibility determination. But that is not this case. The Court is assessing the reasonableness of the certificate on all of the evidence. In my view, the notion in paragraph 22 of Jolly that the Minister need not meet a prima facie case to the contrary can not be relied upon post-Charkaoui I and the enactment of Bill C-3. Jolly was decided in an era prior to the Charter when public interest immunity was absolute and judges did not examine classified information.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-49", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 97–99", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In two cases dealing with an exclusion clause employing the phrase, “serious reasons to consider”, the Federal Court of Appeal considered that it was analogous to “reasonable grounds to believe” and that both were less than the civil standard: Ramirez v. Canada, [1992] 2 F.C. 306 (C.A.); Moreno v. Canada, [1994] 1 F.C. 298 (C.A.). In Moreno, Justice Robertson said, at paragraph 17, that this type of legislative language should be regarded as a threshold rather than a standard of proof. In his view, as stated at paragraphs 21-22, not all exclusion clause issues could be resolved by the “less than civil law” standard and that it should be confined to questions of fact. This conclusion was endorsed by the Supreme Court of Canada in Mugasera, above, at paras. 114-116.\n\nThere is support in the jurisprudence for the position advanced by the respondent that the standard of proof should be the normal civil standard. In Singh, above, at para. 3, the Court held that the legal standard of proof was a balance of probabilities citing two Federal Court decisions under the former statute: Farahi-Mahdavieh (Re), (1993), 63 F.T.R. 120, [1993] F.C.J. No. 285 and Al Yamani v. Canada, (1995), 103 F.T.R. 105, [1995] F.C.J. No. 1453, at paras. 64 and 65.\n\nSingh and Farahi-Mahdavieh were inadmissibility determinations under the certificate process in the former Act. Al-Yamani was a judicial review of an inadmissibility decision of the Security Intelligence Review Committee. In Farahi-Mahdavieh, Justice Denault applied the standard articulated in Jolly. In Al Yamani, Justice MacKay dismissed an argument that a standard higher than that of the normal balance of probabilities was required holding, as the Supreme Court has recently confirmed in McDougall, above, that there is only one civil standard.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-50", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 100–101", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In Re Harkat, 2005 FC 393, [2005] F.C.J. No. 481, a decision which followed the enactment of the IRPA, Justice Dawson held at paragraph 42, that while the legal test was reasonable grounds to believe, the standard of proof was separate and was proof on a balance of probabilities. Justice MacKay observed in Jaballah (Re), 2006 FC 1230, [2006] F.C.J. No. 1706 at paragraph 65, that the threshold of “reasonable grounds to believe” does not require proof on a balance of probabilities; rather it connotes a degree of probability, i.e. a bona fide belief in a serious possibility, based on credible evidence. At paragraph 68, he stated: Thus, whether facts alleged and established on the basis of the threshold of \"a reasonable ground to believe\" fall within the statutory provisions of s-s. 34(1) may depend on the quality and cogency of the evidence. The question for the Court is to assess whether that evidence, and the weight accorded to it, will lead to the conclusion that the requisite standard of proof is met to support a finding that the facts fall within the conduct prescribed by the statute…\n\nI am of the view that “reasonable grounds to believe” in s. 33 implies a threshold or test for establishing the facts necessary for an inadmissibility determination which the Ministers' evidence must meet at a minimum, as discussed by Robertson, J.A. in Moreno, above. When there has been extensive evidence from both parties and there are competing versions of the facts before the Court, the reasonableness standard requires a weighing of the evidence and findings of which facts are accepted. A certificate can not be held to be reasonable if the Court is satisfied that the preponderance of the evidence is to the contrary of that proffered by the Ministers.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-51", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 102–104", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Ministers submit that, in applying the reasonableness standard, some deference is owed to their determination that the named person poses a danger to national security. They cite the following statement at paragraph 85 of Suresh: Provided the Minister is able to show evidence that reasonably supports a finding of danger to the security of Canada, courts should not interfere with the Minister’s decision.\n\nThe Supreme Court in Suresh was conducting a standard of review analysis. They concluded that the factors of relative expertise and access to special information in matters of national security favoured deference to the Minister’s risk assessment, citing Lord Hoffman’s speech to that effect in Secretary of State for the Home Department v. Rehman, [2001] 3 W.L.R. 877 (H.L.), at para. 62. Much has changed in the past eight years, including the Supreme Court’s decision in Charkaoui I and the House of Lords decision in the Belmarsh case in which they resiled from the Rehman dictum where the question to be determined is legal as opposed to political: A & others v. Secretary of State for the Home Department, [2004] UKHL 56.\n\nIn Charkaoui 1, at paragraph 38, the Supreme Court observed that Judges were correct to eschew an overly deferential approach in security certificate cases given the nature of the proceedings. And at paragraph 39 it was stated that \"[t] he IRPA does not ask the designated judge to be deferential, but, rather, asks him or her to engage in a searching review.\"", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-52", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 105–106", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Here, the Court is making a fresh determination based on all of the information and other evidence presented including additional material which was not before the Ministers. The Court, as a result of Charkaoui II, has had access to operational and human source management information not previously made available. In the closed sessions, the information relied upon by the Ministers was called into question and the Court heard evidence about the manner in which the SIR was prepared. Having reviewed all of the information and evidence, I consider that little deference is owed to the Ministers decision. Procedure\n\nWhen a certificate is signed by the Ministers stating that a permanent resident or a foreign national is inadmissible on grounds of security, they are required under section 77 of IRPA to refer the certificate to the Federal Court and file the “information and other evidence” on which the certificate is based and a summary of that information and other evidence that enables a person named in the certificate to be reasonably informed of the case but that does not include anything that, in the Minister's opinion, would be injurious to national security or endanger the safety of any person if disclosed. Under section 78, the judge shall determine whether the certificate is reasonable and shall quash it if he or she determines that it is not.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-53", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 107–110", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Supreme Court has repeatedly recognized the justification for security intelligence information to be kept secret in order to protect national security: Chiarelli, above at paragraph 58; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, [2002] S.C.J. No. 73, at paragraph 43 and 44. That imperative may require a departure from the normal disclosure practices which allow a person, whom the state seeks to remove, to know the case that has to be met. The right to know the case to be met is not absolute: Charkaoui I, at paragraph 57.\n\nIn the context of a security certificate proceeding where removal may place the person at risk of torture or death, the right to a fair hearing requires that the necessary information is provided or a substantial substitute is found to compensate for non-disclosure: Charkaoui I, above at paragraphs 61 and 139. Parliament has responded with the enactment of the Special Advocate regime as a substantial substitute for complete disclosure.\n\nUnder paragraph 83(1)(a) of IRPA , the judge shall proceed as informally and expeditiously (“…sans formalisme et selon la procédure expéditive”) as the circumstances and considerations of fairness and natural justice permit.\n\nThe Court may, and on the application of the Ministers, shall hear information or other evidence in the absence of the public and of the named person and his counsel if, in the opinion of the judge, its disclosure could be injurious to national security or endanger the safety of any person: paragraph 83(1)(c) of IRPA.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-54", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 111–113", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Court shall ensure that the named person is provided with a summary of the information and other evidence that enables them to be reasonably informed (“…suffisamment informé…”) of the Minister’s case but that does not include anything that the judge believes would be injurious to national security or put someone in danger: paragraph 83(1)(e) of IRPA. A decision can be rendered on the information and evidence even if a summary has not been provided to the named person: paragraph 83(1)(i). Role of the Special Advocates\n\nThe Special Advocates role in these proceedings is to protect the interests of the subject of the security certificate when information or other evidence is heard in the closed proceedings. Special Advocates may challenge the Ministers’ claim that the disclosure of information would be injurious to national security or endanger the safety of any person and they may challenge the relevance, reliability and sufficiency of the undisclosed information and the weight to be given to it: s. 85.1 of IRPA. They may make oral and written submissions with respect to the undisclosed evidence and participate in a cross examine any witness who testifies in the closed proceedings: s. 85.2 of IRPA. The Ministers are obliged to provide the Special Advocates with a copy of all of the undisclosed information and other evidence provided to the judge: ss. 85.4 (1) of IRPA.\n\nThe Special Advocates are prohibited from communicating with any person about the proceeding once they have had disclosure of the information or other evidence without the authorization of the judge: sections 85.4 (2) and 85.5 of IRPA. This limits the ability of the Special Advocates to obtain information and receive instructions from the named person and his counsel. THE ISSUES", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-55", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 114–117", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The overarching issue is whether the certificate signed by the Ministers on February 22, 2008 in relation to Hassan Almrei is reasonable. Within the scope of that framework, the parties identified a number of factual and legal issues.\n\nThe respondent launched a broadly based challenge to the constitutional validity of the legislative scheme enacted through Bill C-3. He contends that the new regime does not cure the constitutional defects identified by the Supreme Court of Canada in Charkaoui 1 and, as a result, he was denied fundamental justice as guaranteed by section 7 of the Charter.\n\nIn particular, Mr. Almrei submits that the limitations on communications between the named persons and the Special Advocates after the latter have seen the closed information renders the new procedure ineffective as a reasonable alternative to full disclosure. He contends that the reasonable grounds to believe standard of proof is constitutionally inadequate and that the Charter requires nothing less than the normal civil standard. The search of his apartment in 2000 by CIC officers and the seizure of a false passport in his possession is said to have breached his right to protection against unreasonable search and seizure under s.8 of the Charter.\n\nDue to the nature of the information and other evidence in this case, and the steps that were taken to authorize communication where it was necessary, the respondent was not, in my view, denied fundamental justice and the Special Advocates were not hampered in performing their functions by the statutory restrictions on communication. The process worked as it was intended to by Parliament.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-56", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 118–121", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In light of the conclusions that I have reached on the factual issues, I do not consider it necessary to decide whether the new regime, as a whole, passes constitutional scrutiny. Similarly, as I have found that the certificate is not reasonable I do not need to determine whether the Charter requires the application of the balance of probabilities standard. I think it best to leave those questions to be addressed in another case where there may be a more suitable factual foundation and live controversy.\n\nWith respect to the validity of the 2000 search and seizure, a decision on that issue would not affect the outcome of this case. Nor is there sufficient evidence before the Court on the circumstances and the manner in which the search was conducted to arrive at a well-grounded opinion. I am also of the view that the respondent has implicitly waived his right to object to the search nine years after the event.\n\nThe issues that I intend to address in these reasons are as follows: 1. Are the allegations against Almrei supported by the information and other evidence presented to the Court? 2. Should the certificate be quashed as an abuse of process? THE ALLEGATIONS\n\nThe certificate signed by Ministers on February 22, 2008 states that Almrei is inadmissible to Canada by reason of paragraphs 34(1)(c), 34(1)(d) and 34(1)(f) of the IRPA – in essence that there are reasonable grounds to believe that Almrei will engage in or has engaged in terrorism, is a danger to the security of Canada and is a member of an organization that there are reasonable grounds to believe will engage in, or, is or was engaged in terrorism.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-57", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 122", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The grounds for the certificate are set out in the SIR and A/SIR, the Statement Summarizing the Information (the “Public Summary”), and the Amended Summary with additional information filed with the Court on March 25, 2009. The Amended Summary states that based on the information obtained from unclassified sources, human sources, intercepts, physical surveillance and information from foreign and domestic agencies, the Service believes that: (a) Almrei supports the extremist Islamist ideology espoused by Osama Bin Laden, that he has connections to persons who share that ideology and that, through his involvement in an international document forgery ring, has the ability and capacity to facilitate the movement of those persons in Canada and abroad who would commit terrorist acts. (b) Osama Bin Laden is the leader of an international terrorist network of groups and individuals committed to the use of violence to attain their political objectives, and Bin Laden has established substantial ties through alliances and cooperation with other extremist groups. (c) The methodology of Al Qaeda’s leadership has shifted since September 11, 2001. Operations have been carried out by distinct terrorist groups affiliated with Al Qaeda through their training experiences in Afghanistan or direct connection to Al Qaeda’s mid-level leadership, or by autonomous units that adhere to Al Qaeda’s core principles but do not have any direct connections to Bin Laden. (d) Some scholars and academics believe that Al Qaeda is no longer a centrally-controlled organization, but recognize that its ideology lives on and that Bin Laden remains a powerful figurehead and inspiration for people around the world.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-58", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 122", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Others believe that Al Qaeda remains a viable entity and may be regrouping in order to spark a new wave of attacks. (e) The Bin Laden Network, through Al Qaeda, operated terrorist training camps in Afghanistan, Pakistan and Sudan, with cells in Somalia and Kenya. (f) Graduates of the camps have been dispatched to conflicts around the world to support various Islamist groups and causes, including Chechen rebels fighting Russia. (g) Other terrorist organizations have adopted the Al Qaeda brand name and they operate outside the Afghanistan-Pakistan Al Qaeda core area. (h) Thousands of people have been inspired by the Al Qaeda ideology. They act locally, but see their operations as part of a greater whole, as defined by Al Qaeda, which in turn utilizes these groups as part of its global strategy. (i) Eighteen individuals arrested in the summer of 2006 in the Greater Toronto Area and accused of terrorism offences, allegedly established training camps north of Toronto to practise military-inspired exercises. They had no formal affiliation to Al Qaeda but were believed to be inspired by Al Qaeda ideology. (j) Al Qaeda and its followers are adept at using the internet as a means of communicating with each other securely and quickly, and use the internet for recruitment, indoctrination, fund raising and propaganda. (k) In support of its clandestine actions, members of the Bin Laden Network use aliases and false documents, particularly passports, and manipulate official processes such as legal name changes, marriages of convenience and the arrival to a State without documents and registration under a false name in order to obtain official documents under new identities.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-59", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 122", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "(l) Canadian citizens Abderraouf Jdey and Faker Boussora, who stated their intention to be involved in a martyrdom mission, are unknown and there is a strong likelihood that both are using false identities to remain undetected. (m) The misuse of passports and other documents is intrinsically connected with international terrorism. Terrorist groups and their operatives need to travel to plan and commit attacks. Surreptitious travel is facilitated by using false or improperly obtained documents. (n) Bin Laden has misappropriated donations made to Muslim charitable organizations in order to allow the Bin Laden Network to operate without the material support of a government or state sponsor. (o) The Bin Laden Network has displayed a high level of security consciousness and is careful with communications so as to avoid detection, including the use of noms de guerre. (p) Canada has been named as a legitimate target of attack on six occasions by Al Qaeda and groups or individuals linked to Al Qaeda. (q) In June 2007, at the graduation of approximately 300 apparently newly trained suicide bombers at a terrorist training camp, a Taliban commander announced that Canadian interests were all viable targets and that the recent graduates would be deployed to Canada. (r) Despite the dispersion of the Al Qaeda leadership and the group’s reduced ability to centrally organize and control operations, Al Qaeda issues audio or video tapes which are widely distributed in the Arab and Muslim world and which serve to motivate fellow Muslims to take up the jihadist cause. (s) Almrei has lied to Canadian officials, tribunals and Courts about his travel before coming to Canada.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-60", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 122–123", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "(t) The Bin Laden Network is founded on the commitment of its members to its leader and his ideals held together by bonds of kinship. Almrei shares these bonds and has demonstrated his support of Bin Laden, those associated with or sponsored by him and his ideology. (u) Almrei is associated with Arab Afghans connected to the Bin Laden network including Ibn Khattab, Nabil Almarabh, Ahmed al Kaysee and Hoshem al Taha. (v) Almrei is able to and has international connections to procure false documentation; he obtained a false Canadian passport for Nabil Almarabh, he knew individuals in Montreal who could obtain false documents, he travelled to Thailand and met a human smuggler and discussed false passports with him, he arranged a marriage of convenience in Canada, he made referrals for United States (“U.S.”) and Canadian driver’s licences, and a person he knew was detained in the U.S. in 2001 with thirteen packages of identity documents including passports. (w) Almrei has demonstrated concern for his security and an understanding of security procedures. THE “INFORMATION AND OTHER EVIDENCE”: Overview:\n\nAs discussed above, Division 9 of the IRPA provides that the judge presiding over the review of a certificate may receive into evidence and base a decision on anything that is reliable and appropriate, even if it is inadmissible in a court of law. This can include information from open and covert sources. In this case, the Ministers based their allegations against Mr. Almrei on information collected from a variety of sources as described in the Security Intelligence Reports and Public Summaries.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-61", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 124–126", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Security Intelligence Reports or SIRs filed in this case, were prepared by CSIS as part of its duties under section 14 of the Canadian Security Intelligence Act, R.S., 1985, c. C-23. Section 14 authorizes the Service to advise Ministers on matters relating to the security of Canada and to provide them with information that is relevant to the performance of their duties under IRPA.\n\nThe SIR is not mentioned in the Act. It is a narrative report consisting of assertions of fact drawn from open sources and information provided by human sources, intercepted communications, physical surveillance and foreign and domestic security and intelligence agencies. Each assertion in the SIR is, according to CSIS policy, to be evaluated for its relevance and reliability and ‘facted” or linked to a documented covert or open reference held by the Service. The Public Summary, prepared by CSIS on behalf of the Ministers, contains that portion of the narrative which is deemed by the Service to be not injurious to national security or to source protection with footnoted references to open sources.\n\nThe SIR, the amended SIR (“A/SIR”), the public summaries of both, together with volumes containing the referenced open and covert sources and supplementary materials were all filed with the Court for its use and that of the Special Advocates. The SIRs filed with the Court contained colour highlighting indicating which information was classified and withheld from Mr. Almrei and the public and that which was made public in the summaries.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-62", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 127–128", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Ministers presented testimony from Service officers in both the open and closed hearings and expert opinion evidence from one witness in the public hearings. The respondent testified on his own behalf and called several expert witnesses to give opinion evidence in the public hearings. The public testimony and opinion evidence is discussed below. The evidence presented in the closed hearings is discussed in the closed reasons for judgment. The Open Source Information:\n\nThe SIR, A/SIR and the public summaries of both reports contain footnoted references to extensive unclassified or open source material filed with the Court by the Ministers in the form of indexed reference volumes. Much of this material is taken from newspapers, magazines, scholarly journals and on-line sources not available in print. Some 35 of the referenced reports were taken from sources available solely on-line and more than 50 were articles from newspapers and other print media sources. In addition, both parties filed numerous excerpts from open source materials which were put to the witnesses during their testimony. The reliability of some of this material became an issue in these proceedings. In the closed proceedings, counsel entered documents into evidence that had been produced as a result of the Charkaoui 2 orders.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-63", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 129–130", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "As the case proceeded and the Court reviewed the open and closed information, it became apparent just how little was known by western security intelligence agencies and scholars about Al Qaeda and the jihadist movement in the months leading up to and following the events of 9/11. As Thomas Hegghamer, of the Harvard Kennedy School and the Norwegian Defence Research Establishment, has written: We were all frightened by the destruction caused on 9/11. Yet most of us… assumed that there would be people in the intelligence services or in academia who possessed detailed knowledge about the jihadists… How wrong we were… [I]t has become increasingly clear how little was known about al-Qaeda back in 2001, and how long it will take for us thoroughly to understand the dynamics of global jihadism. (Jihadi Studies: Times Literary Supplement, April 4, 2008 p.15)\n\nLittle attention had been directed to the jihadi phenomenon by security intelligence analysts and academic scholars. Hegghammer points out that the main contributions to the literature on Al Qaeda in the first few years after 9/11 came from investigative journalists, not academics or security specialists. This is apparent from the information filed in this case.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-64", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 131–133", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In the reaction to 9/11 and the “Global War on Terror” initiated by the US and its allies, there was a rapid proliferation of instant experts and new organizations claiming knowledge in the field, as several of the witnesses testified. In Hegghammer’s words, there was “a deluge of writing in which truth was mixed with factoids and conspiracy theories”. This was borne out by much of the material filed in these proceedings and from the witnesses’ testimony. The Court’s task was, in part, to sort the fact from the rumour and truth from the speculation in the filed material to determine what was reliable and appropriate information and other evidence upon which a decision could be rendered. Third Party Information:\n\nDivision 9 of IRPA permits the reception of information obtained in confidence from foreign security intelligence and police agencies. CSIS sought information about Mr. Almrei from a number of foreign agencies prior to and following his detention. I have more to say about this in my closed judgment. For the public record, I think it necessary to state that the responses from foreign agencies were largely negative respecting Mr. Almrei. He was not known to be an extremist suspect by the authorities in the jurisdictions canvassed.\n\nRelevant information was provided by foreign agencies regarding the arrest, detention and ultimate deportation of Nabil Almarabh from the United States and with respect to the respondent’s Thai based contact, a Palestinian named Ghaleb, and his connections.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-65", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 134–135", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Information was also provided to CSIS by the US Federal Bureau of Investigation (F.B.I.) with respect to Mr. Almarabh’s responses to questions that CSIS had requested be posed to him regarding his relationship with Mr. Almrei while Mr. Almarabh was in US custody. A summary of that information had been previously disclosed to the respondent and his counsel. The full report was provided to the Court and to the Special Advocates as a result of the October 10, 2008 production order. The content of that report was relevant to the merits of the certificate and to the motion by the Special Advocates to quash the certificate on the ground of a breach of the duty of candour.\n\nAs this Court has previously observed, where the government wishes to protect material information provided by a third party under caveat, the consent of the third party to disclose the information should normally be sought: Khadr v. Canada (Attorney General), 2008 FC 549, [2008] F.C.J. No. 770, at paragraphs 93-95. In this case, the Special Advocates had access to the closed third-party information in the court file subject to the redaction of irrelevant content. The respondent is also aware of the gist of the information and the allegations relating to Almarabh and Ghaleb. He replied to these allegations in his cross-examination of the government witnesses and in his testimony.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-66", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 136–138", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In my view, disclosure of the third party reports would have been injurious to Canada’s national security as the information was provided in confidence under protective caveats. Given that the essential facts were already part of the public record, I did not consider it necessary in this case to direct that the Service seek consent to disclosure from the foreign agencies that provided the information. I was also mindful of the obligation under the statute to conduct the proceedings in an expeditious manner. This decision was communicated to Mr. Almrei and his counsel on June 10, 2009.\n\nInformation was also provided to the Service by the RCMP, the Department of Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA). RCMP reports of information received from human sources shared with CSIS were disclosed to the Court and to the Special Advocates. As the reliability of the sources could not be determined and the information was vague and unsubstantiated, those reports carried very little weight and were not relied upon by CSIS in the preparation of the SIR and A/SIR.\n\nDuring the course of the proceedings certain reports prepared by the RCMP and CIC were provided to the Court and the Special Advocates, and with the redaction of non-material and sensitive information, disclosed to the respondent and his counsel. The factual accuracy of these reports became an issue in the open proceedings.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-67", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 139–142", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "CIC/CBSA information used in the SIR and A/SIR included reports on the information provided by Almrei in support of his unsuccessful visa application in 1998 and upon his entry in 1999. It includes a report on the search conducted at Almrei’s apartment on September 13, 2000 when CIC officers attempted to arrest his roommate on a departure order. This report contained erroneous information about Almrei’s refugee claim. Another report concerned a CIC file for an individual linked to Almrei; a Syrian male with Afghan experience who had traveled to the United States on altered and false passports.\n\nAn RCMP investigation report in relation to certain events at Pearson Airport was produced late and only after repeated requests. The significance of the report will be discussed below. Telecommunications Intercepts:\n\nThe Ministers initially relied on a handful of intercept reports in the SIR. Following a review of these reports in the closed hearings, two were withdrawn by the Ministers upon the Court’s finding that they were not relevant to the proceedings, as they concerned other persons and the use of a communication technique not connected to Mr. Almrei.\n\nSummaries of conversations used in the A/SIR were approved by the Court and disclosed to Mr. Almrei on April 17, 2009 (Exhibit A-13). In one of several conversations on September 14, 2001 an unknown male spoke with Almrei addressing him as Abu al Hareth and inquired about the contact numbers of a third person. This was, apparently, the Service’s first confirmation that Almrei was known to his friends and associates by the name, Abu Al Hareth. But he was well known by that name within the Muslim community in Toronto and, indeed, the RCMP had been making inquiries about him under that name.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-68", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 143–145", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In the course of several conversations on October 9, 2001, Almrei was told by an acquaintance he had been followed that day by two men in a car who were, at the time of the conversations, parked in front of the acquaintance’s building. Almrei was advised not to visit the acquaintance the next day as they were both under scrutiny. The acquaintance also spoke about providing funds to assist Almrei with his lawyer’s fees. These intercepts, with other closed information, were offered in support of the assertion that Almrei was security conscious and took steps to avoid surveillance.\n\nOn April 24, 2009, summaries of intercepted communications that had been disclosed to the Court and to the Special Advocates as part of the Charkaoui II production, were disclosed to Mr. Almrei and the public in a volume filed as Exhibit A-14. The summaries concerned some 55 conversations which took place on and between September 12, 2001 and October 18, 2001 which were not relied upon in the SIR and A/SIR as they contain no information in support of the Ministers' case.\n\nSeveral of these intercepts became relevant in the closed proceedings as the reports of the communications intercepted by the Service proved to be inconsistent with reports of information provided by human sources respecting conversations on the same dates. In that respect, they were also relevant to the motion to quash the certificate brought by the Special Advocates. Physical Surveillance Reports:", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-69", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 146–147", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei was under physical surveillance prior to his arrest and detention. Physical surveillance reports referenced in the A/SIR were disclosed in Exhibit A-13 on April 17, 2009. These concerned surveillance on September 17, 1999 and September 19, 1999. The first report concerned events at Pearson airport which will be discussed below. The second describes Almrei’s driving behaviour as he was followed around Niagara Falls while he visited several nightclubs and restaurants. This second report was relied upon in support of an assertion that Almrei had exhibited security tradecraft in an effort to determine whether he was being followed. Another interpretation, conveyed by one of the surveillance teams, is that he was wandering around just to kill time.\n\nThe Charkaoui II Order produced a considerable number of other physical surveillance reports. The Ministers objected to their disclosure to the respondent on the grounds that they contained no relevant information, would disclose covert operational methods and surveillance techniques and were not relied upon in the A/SIR. The Special Advocates considered that they were relevant if only to demonstrate that Almrei’s behaviour on those dates had been innocuous. In the result, an overview summary of the surveillance conducted between August 1999 and October 2001 was approved for disclosure to Mr. Almrei and the public and forms part of Exhibit A-14.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-70", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 148–150", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Several of the physical surveillance reports proved to be highly relevant in the closed proceedings in support of the motion to quash as their content was inconsistent with information provided by a human source regarding Almrei’s movements and contacts on specific dates. This will be discussed further below. Information Obtained or Derived from Torture or Cruel, Inhumane or Degrading Treatment\n\nAs outlined above, IRPA subsection 83(1.1) provides that reliable and appropriate evidence does not include information that is believed on reasonable grounds to have been obtained as a result of the use of torture within the meaning of section 269.1 of the Criminal Code or of cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture.\n\nQuestions arose in these proceedings as to whether any of the information in the SIR and A/SIR had been obtained as a result of the use of torture or cruel, inhuman or degrading treatment or punishment. From my review of the SIR and A/SIR, the records disclosed in response to the October 10, 2008 order and the evidence presented in the public and closed hearings, I was initially satisfied that the Ministers did not rely upon information that had been obtained through the use of such methods. The Special Advocates were authorized to communicate that view to Mr. Almrei and his counsel so as to avoid the calling of unnecessary expert opinion evidence during the public hearings about the treatment of certain high-level detainees by the US and allied forces. There were no such reports from such detainees claiming, for example, to have seen Mr. Almrei in a place or places consistent with the government allegations.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-71", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 151–153", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "During the public hearings, however, it became apparent that some of the open source reference documents contained information that was obtained by members of the US military or intelligence agencies from detainees captured in the aftermath of 9/11. Based on information in the public domain, the use of so-called “enhanced interrogation methods” such as waterboarding had been approved by the former US administration for use by US interrogators between 2002 and 2004.\n\nNone of the documents in question contained information implicating Mr. Almrei but had been included as contextual reference material regarding Al Qaeda’s operations and methods. The documents in question included several chapters of the 9/11 Commission Report. An explanatory note in the Report states that chapters 5 and 7 contain information obtained from the interrogations of certain named detainees. Without deciding the matter, I concluded that it is open to the Court to find that the information contained in those chapters of the Report, and similar US documents, was obtained through the use of torture or cruel, inhuman or degrading treatment as defined in the Code and the Convention and would not be admissible evidence or information in security certificate proceedings under IRPA, at subsection 83(1.1).\n\nWhen this issue was raised during the public hearings counsel for the Ministers properly took the position that they would no longer be relying upon the documents in question. The Court has not, therefore, taken them into consideration in arriving at a determination in these proceedings. The Human Source Information:", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-72", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 154–156", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The strength of the Ministers’ case rests to a considerable extent on information provided to CSIS by human sources. As presented to the Court, this information was drawn from source reports maintained in the Service’s operational records database. Statements in the A/SIR attributed to the sources are supported by footnoted references to the reports which were reproduced in the classified reference materials filed with the Court. Typically the report would indicate that the writer, a CSIS employee, had met with the source on a certain date and had been given certain information. Notes of the interview, if any were made, were typically not retained. The source is identified only by a code number and word.\n\nA classified Source Exhibit containing information about the human sources was filed with the Court on September 5, 2008.\n\nFurther to the delivery to the Court of the information produced in response to the Charkaoui 2 disclosure order and the review of that information by the Court and the Special Advocates, on April 3, 2009 the Court issued a confidential order requiring the production of additional classified information respecting the human sources. The Ministers responded to that order by filing two volumes of documents on May 1, 2009. The Court required the production of further information respecting the Service’s assessments of the credibility and reliability of the human sources. A supplementary response was filed on May 15, 2009.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-73", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 157–158", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "On May 25th, 2009 counsel for the Ministers submitted a Revised and Amended Source Exhibit for filing. This document contained revisions to the information filed on September 5, 2008. In respect of one human source, a polygraph examination had not been performed as was previously reported. With regard to a second human source, the circumstances surrounding a 2007 polygraph examination, not directly related to this matter, were in question. As a result of this and similar questions which had arisen in another certificate case, a review of the preparation of the source exhibits was undertaken by CSIS and the Department of Justice.\n\nOn June 3, 2009 the Court issued a confidential direction requiring the production of additional information relating to a number of questions concerning the human sources. Top secret documents were filed by the Ministers in response to that direction on June 17-18, 2009, including a document entitled a \"Source Précis\". The Source Précis contained further extensive revisions to the information provided by CSIS regarding the human sources. It was then clear that the second human source was found to have been deceptive in providing answers during the 2007 polygraph examination. On June 22, 2009 a senior manager of the Service was examined and cross examined concerning the process which CSIS had followed in preparing the original and the revised source exhibits and the internal review of these processes. These developments were communicated to Mr. Almrei and his counsel on June 10 and June 26, 2009.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-74", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 159–161", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Court will deal with the merits of the information provided by the human sources in the closed judgment. However, in light of the disclosure of errors in the Source Exhibit and the resulting motion brought by the respondent to quash the certificate as an abuse of process, it is necessary to address the question of the reliability of this information in these public reasons.\n\nThe Court is sensitive to the fact that human sources are an important component of the resources available to security intelligence agencies in collecting information to protect national security. CSIS is justifiably proud of its ability to recruit and develop directed human sources. For a comparatively small intelligence agency they have an established track record of success in recruiting productive sources. This may give CSIS a relative advantage in the collection and sharing of information between partner countries which have more extensive technological capabilities or more numerous personnel. That success no doubt serves Canada’s security interests well.\n\nThe precautions adopted by CSIS to protect human sources include the close guarding of any information that might possibly identify and expose the sources within the Service itself. Such information is only available on a strict need to know basis to a limited number of CSIS employees and is kept separate from the general reporting system and databanks.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-75", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 162–164", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In this case, the reliability of the information provided by several human sources became a key issue. If the information from the sources is to be believed, Mr. Almrei is dedicated to the Bin Laden ideology and a threat to the security of Canada. It was crucial, therefore, for the Court to determine whether the sources were credible. That assessment depended in part on information held by CSIS in the source management files; how they were recruited, developed and managed as directed sources and the internal assessments of their reliability.\n\nProduction of the Charkaoui 2 information also allowed for a comparison of the reports of information provided by the human sources with other information held by CSIS including the intercept and surveillance reports. That comparison identified some serious contradictions. In the result, I was satisfied that the highly relevant information provided by one source in particular was not credible as it conflicted with surveillance and intercept reports made by CSIS personnel regarding the same dates and times.\n\nIt is of particular concern that these contradictions did not come to light until they were put to the Service witness in cross-examination by the Special Advocates. That witness was unable to provide satisfactory explanations for the failure of the Service to analyse the conflicting reports and to disclose this information to the Ministers and to the Court. This suggests a serious lack of analytical capacity in managing the enormous volume of information collected by the Service. The Service Witnesses:", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-76", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 165–166", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Ministers called CSIS employees as representative witnesses in both the open and closed proceedings. These were “representative” witnesses in the sense that they gave evidence based on information collected by the Service relevant to the proceedings and not from personal knowledge of the case. They also testified about the Service view of the danger to Canadian national security and the global risks posed by Sunni Islamic extremism. Neither of the three witnesses called (including the witness on the detention review) were tendered as experts to give opinion evidence. They testified as fact witnesses regarding their knowledge of the threat environment and the information compiled by CSIS relating to Mr. Almrei. I found them to be experienced, knowledgeable and professional.\n\nIn the closed proceedings, the evidence of the Service witness dealt with the classified information referenced in the SIR and A/SIR and supporting documents. His identity was disclosed for the purposes of the record but I see no need to reveal it here. I discuss his evidence in greater detail in the closed reasons for judgment. For the public record, the witness testified with regard to the accuracy of the classified information derived from human and other sources. In particular, the witness testified as to the background of the human sources, their relationship with and motivation for cooperating with the Service, why their information was considered reliable and how it formed part of the Service’s assessment of Mr. Almrei. The witness was cross-examined on that evidence and on records obtained from the Service operational and human source management databases.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-77", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 167–168", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In the open proceedings, the Ministers called Mr. Robert Young, a manager with the Service’s Toronto Region office. Mr. Young has a BA in political science and an M.A. in international relations. He has been an intelligence officer with the Service since 1986, serving as an investigator and analyst and, since 1999, as a manager. For the two years prior to his testimony he had been responsible for managing investigations into Sunni Islamic extremism in the Toronto region. In the course of his employment, he has traveled to Afghanistan, Pakistan, India, Sri Lanka and he had lived in the Middle East for three years in the late 90s dealing with Sunni extremism issues.\n\nMr. Young had visited Afghanistan for operational reasons for about a week. Ministers’ counsel objected to cross examination on the purpose of that visit on national security grounds. The matter was not pressed by the respondent and I did not consider this information to be relevant to these proceedings. Mr. Young did not purport to be an expert on Afghanistan. He is familiar with the background to the conflict there but not the details. He doesn’t speak any of the local languages.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-78", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 169–170", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "While there was some overlap with the testimony of the Service witness in the closed hearings, Mr. Young did not refer to the classified information and he had not read it in preparation for his testimony. His evidence reviewed the Service’s mandate with regard to threats to the security of Canada under the CSIS Act. He then addressed the case against Mr. Almrei as it appears in the public summaries of the security intelligence reports. Much of his evidence was of a background nature, outlining the Service understanding of Al Qaeda and the Bin Laden Network, the role of the Afghan training camps in recruiting extremists, and Al Qaeda operational methodologies such as the use of false documentation and clandestine tradecraft.\n\nMr. Young had not directly participated in the Almrei investigation. CSIS has only interviewed Almrei once just prior to his arrest in October 2001. They have not attempted to since. Young had read the interview notes and the transcript of an interview conducted by CIC that was entered into evidence. He indicated that the Service is reluctant to interview anyone involved in litigation. Their goal was to remove him from Canada and thought that they had completed their work after the first security certificate was upheld.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-79", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 171–173", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Based on all of the available information, Mr. Young testified, the Service assessment is that Almrei supports the extremist ideology espoused by Osama Bin Laden, that he has connections to persons who share that ideology and that, through his involvement in an international document forgery ring, the Service believes he has the ability and capacity to facilitate the movement of extremists in Canada and abroad who could commit terrorist acts. They consider that he has a “pedigree” with the skill sets that would make him useful to a terrorist organization.\n\nAlmrei’s participation in jihad on several different occasions is a concern to the Service, in particular because he has never renounced jihad and took pride in his willingness to participate in violence against others because of his religious or ideological beliefs. Mr. Young said that the Service’s assessment was that Almrei’s jihadist forays were not a one-off occasion such as might be expected from a curious young man.\n\nThe Service position is that jihad is the same whether it is undertaken in one part of the world or globally. The person who engages in jihad is, in the Service view, willing to inflict violence and seeks to impose his will on the sovereignty of other nations. Their concern with Almrei is that they believe he would be willing to engage in jihad again when he believes it is justified to inflict violence in a political situation.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-80", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 174–176", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Mr. Young noted that Almrei came to Canada from Jordan on a false U.A.E. passport which he claimed to have destroyed upon arrival. A search by immigration officials of Almrei’s apartment later revealed the false U.A.E. passport. In the Service’s view this is consistent with a person who is sympathetic to the jihadi cause, in that the travel document could be re-used by associates or others involved in jihadism.\n\nOn cross-examination Mr. Young conceded that many people cross borders using false documentation who have no relationship with extremist groups. He agreed that this factor wouldn’t be alarming on its own. However, combined with all the other issues and facts known from the open information, it contributes to a greater concern for the Service.\n\nAlmrei’s connection to the Muslim Brotherhood was also a basis for concern because of that group’s links to terrorism in the past. While the Service has no information linking Almrei to membership in the organization, his claim for refugee status was based on persecution due to the political beliefs of his father who had been a prominent member. He also claimed that his Syrian passport was provided to him by the Muslim Brotherhood. That, in itself, did not carry much significance Mr. Young said, on cross-examination. He also agreed that inaccurate information was provided to the Service by CIC regarding Almrei’s refugee claim. He had never claimed, as reported by CIC, that his father had been killed and his mother imprisoned by Syria.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-81", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 177–180", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Mr. Young suggested that Almrei was in a position to use his honey and perfume business as a cover to travel to countries to participate in jihad or to further the cause of Islamist extremism.While there is no evidence that Almrei did in fact use this trade to conceal weapons or to raise funds for extremist activities, that type of business has been used by extremists for such purposes in the past.\n\nOn cross-examination, Mr. Young acknowledged that the Court had found in a 2005 detention review hearing that the role of the honey business was speculative. He agreed that there is no new evidence to support an adverse inference from this activity. Counsel for the Ministers indicated that they would not ask me to take a position different from that reached by my colleague in 2005.\n\nIn the October 2001 interview, Almrei denied having been to a number of countries, which later turned out by his own admission to be untruthful, notably Afghanistan and Tajikistan. In Mr. Young’s mind that raised the question: after having been recognized as a refugee claimant and having secured a certain status in Canada, why would he continue to lie? Almrei has also admitted that he withheld information from the Service and from the lawyer. He has thus demonstrated a pattern of being untruthful, which has made it difficult for the Service to actually discern what Almrei has done in the past and to what degree.\n\nAlmrei’s participation in the training camps goes beyond just a philosophical adherence to an ideology, according to Mr. Young. It shows a real commitment to follow through on that violent ideology, to take the time, put one’s life at risk, to follow up on that cause, be willing to kill people because of a belief in jihad.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-82", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 181–182", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Regarding Almrei’s travels to Tajikistan, Mr. Young said he could only speculate about the reasons. He thinks it unlikely that all Almrei was doing there was participating in scouting missions. In his view, the purpose, in military terms, was to conduct pre-operational reconnaissance in advance of an attack to kill people. Supporting the jihad in Chechnya is also of concern. As is Almrei’s visits to Sayyaf’s and Khattab’s guesthouses and camps. Guest houses were the initial reception areas for would-be mujahidin. They would receive basic ideological indoctrination. Passports and other identification were retained there. Thereafter, they would only use a kunya or nom de guerre.\n\nOn cross-examination, the witness agreed that many of the men who went to Afghanistan in the late eighties were financed and encouraged by the Saudi government and the US. Their motivation was essentially to push the Russian infidel invaders out of a Muslim country and rejection of the Marxist, atheistic communist government in Kabul. For the Americans, Afghanistan was a cold war surrogate in the effort to weaken the Soviet Union. The fact that a person went to Afghanistan during the Soviet presence or the communist government doesn’t mean they are associated with Bin Laden, but it would be of concern to the Service.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-83", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 183–185", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Mr. Young considered that there was not much difference between offensive and defensive jihad as the latter may involve offensive action. He agrees that most of those who went to Afghanistan in the 1980s and early 1990s would have gone home afterwards to get on with their lives. The US decision to support the jihad as a surrogate war against the Soviets was ill-conceived in his view. In any event, there is nothing to compare that action with the present day role of the coalition forces in Afghanistan supporting the Karzai government.\n\nThe witness testified that the Service view of Khattab is that he was a committed jihadist. This was derived from numerous sources. While it may be premature for history to come to any conclusions about his activities, he acknowledged, Khattab knew Bin Laden and may have received funding from Al Qaeda. Khattab was allied with Basayev, the Chechen insurgent leader believed to have committed terrorist acts and worked to establish a Muslim Caliphate in the region. His reputation in the early 1990’s was that of a fierce and fearless fighter and brilliant commander. Young believes that Khattab’s major contribution to what had begun as a sectarian conflict in Chechnya was to Islamicize the fight.\n\nYoung didn’t dispute that the Service has expressed a more benign view of Khattab in other proceedings. In Exhibit A-16, Appendix D to the 2008 Harkat summary, the following appears at paragraph 4: “…contrary to Bin Laden, Ibn Khattab has never been quoted as calling for a struggle between Islam and the West, and has never called for Jihad against America or Jews. His struggle was against Russia and its occupation of the Caucasus.”", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-84", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 186–188", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "But in an Associated Press story out of Moscow dated September 14, 1999, Khattab was quoted as speaking approvingly of terrorist attacks against Russian civilians (A-15) and in another article, against American military forces in Saudi Arabia: “… Muslims have the right to seek such a solution.” (Ex. A-1, V.1, T-4, p.2). Mr. Young acknowledged that there were conflicting accounts about Khattab’s statements and that some of this might be attributable to Russian propaganda.\n\nIn cross-examination, Mr. Young said he hadn’t seen much to substantiate the claim in paragraph 63 of the summary regarding Khattab other than the claims of the author of “Chechen Jihad”. He acknowledged that the author, Josef Bodansky, has been criticized for relying on Russian sources and for failing to identify his sources. FBI headquarters did not believe that Khattab was closely connected to Bin Laden or was hostile to the US (T-137 p.10). The fight in Chechnya was largely nationalistic and not ideological. Young is not aware of any contrary information to that given by Almrei in his statutory declaration regarding his contacts with Khattab between 1994 and 1997.\n\nAlmrei’s association with Nabil Almarabh was also a concern to the Service. Almrei had met him at a camp in Kunduz in 1994. In Ontario in 2001, he contributed funds for Almarabh’s release on bail and acquired a false passport for him. Almarabh was taken into custody in the US after 9/11 on a material witness warrant as a suspected terrorist. He was released in 2004 and deported to Syria after being cleared of all terrorist allegations (Ex. A-1, T-98). Testimony before a US Congressional committee in August 2006 (Ex. A-1, T-99) claimed that he was linked to terrorist suspects.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-85", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 189–191", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Mr. Young conceded that it is reasonable to assume that a number of contacts would have dried up while Almrei was in detention for seven years. He thinks it is equally reasonable to assume that others are still in business. A concern regarding Mr. Almrei is that he would continue along the path that he has chosen thus far in life, to connect with people involved in fraudulent documentation to assist the cause.\n\nMr. Young had reviewed all of the open documentary record. The CSIS process in preparing the SIR is that after preparation by the Security Screening Branch, it goes up through several levels of review, including legal advice. The case is brought forward to the Director for approval and ultimately to the two Ministers for signature. The public summary and supporting reference documents are also prepared by the security screening branch. Great care is taken to ensure accuracy. The Service seeks to file reliable and balanced material as it goes to the credibility of the Service. The author’s history or pedigree, sources, footnotes, etc., may be important. The Service doesn’t differentiate between open and closed sources and seeks to corroborate the facts.\n\nOn cross-examination, Mr. Young was taken to a reference at paragraph 30 in the public summary (fn 62, T-122, Edmonton Journal article) to a confession disclosed in US military commission proceedings by a person described as a veteran Al Qaeda operative; Waleed bin Attash. Exhibit R-11, Report of the International Committee of the Red Cross to the CIA dated February 14, 2007 discusses bin Attash’s treatment following his arrest in Karachi in April 2003. This is corroborated by Exhibit R-12, the August 1, 2002 US Department of Justice memorandum authorizing the CIA to use “enhanced interrogation techniques”.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-86", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 192–195", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Mr. Young agreed that it was a mistake for the Service to include the reference to the confession as it was likely obtained through abusive treatment falling within the scope of the exclusion in IRPA ss. 83(1.1). CSIS does not rely on information obtained by torture, according to Mr. Young and public statements by the Director and Minister. He noted that information obtained five years ago from Guantanamo may have been treated as reliable at that time. Now it would have to be reconsidered given more recent disclosures about the manner in which it may have been obtained. As noted above, the Ministers have withdrawn this information.\n\nOn cross-examination, Mr. Young was taken to several other documents in the reference indices that relied upon information that may have been obtained under “enhanced interrogation techniques”: e.g., T-52, T-123, T-128. He agreed that the information would be tainted if it had been obtained under duress.\n\nThe witness was also taken to a selection of documents relied upon as references in the amended summary which contained information that was later proven to be inaccurate. For example, a news report in T-105 regarding an allegedly bungled Al Qaeda arms experiment involving the poison ricin (Ex. R-16, R-17). Mr Young agreed that the report in T-105 should not have been used by CSIS without checking the facts.\n\nParagraph 31 of the summary references an AP report reprinted in a Jane’s publication that Columbian authorities had linked a forgery ring to Al Qaeda. CSIS relied on it as the source for a statement about false document usage. Other, more authoritative sources cast doubt on the story (Ex. R-19 and R-20). On re-direct, the witness said the Jane’s report is accurate.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-87", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 196–198", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In my view, the Jane’s report is accurate only in the sense that it accurately reports a statement by the Columbian Attorney-General. That statement was without a factual foundation as the respondent’s exhibits effectively demonstrated.\n\nThe witness was taken to a statement in paragraph 14 of the amended summary that relied on a TimesONLINE report dated February 4, 2009 (fn 22 referencing T-109) for the claim that terror suspects under house arrest in the UK have maintained contact with terrorists and remain determined to mount terror attacks in the future. The TimesONLINE report took a few words out of context from the Fourth Report by the Independent Reviewer on United Kingdom Terrorism Legislation (Lord Carlisle) at para. 58, p. 20 (Ex. R-21). The actual text states: My view is that it is only in a few cases that control orders can be justified for more than two years… there are a few controlees who, despite the restrictions place upon them, manage to maintain some contact with terrorist associates and/or groups, and a determination to become operational in the future.\n\nThis was turned into a headline that “Terror Suspects Plot Attacks While Under House Arrest” which was relied upon by the Service analyst who wrote the paragraph and who evidently did not check the actual source.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-88", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 199–200", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Mr. Young was taken to a number of other reference sources relied upon by the Service including excerpts from Wikipedia and other sources of unknown reliability. He agreed that there were problems in the use of such sources. Some are solely published on-line and provide no information about who is behind them or where they get their information. Other reports were stale by the time they were relied upon. That is, the information they contained was shown to be inaccurate, incomplete or misleading in later reports. For example, a CSIS threat assessment written in January 2005 contained inaccurate information about an April 2004 arrest (T-72, T-73, Ex. R-24)). This raises the question as to why the Service continued to rely on the earlier reports.\n\nThe witness agreed that the wording in paragraph 57 of the public summary left the impression that Abdul Rasul Sayyaf had a continuing relationship with Bin Laden whereas the sources placed their contacts to the period during the anti-Soviet jihad (see for example Ex. R-25). While the sources are clear that Sayyaf was a hard-line Islamist, Mr. Young agreed that after Bin Laden’s return in 1996, Sayyaf supported the Northern Alliance which was fighting Bin Laden’s Taliban allies. The evidence doesn’t support a continuation of the relationship after the anti-Soviet jihad. But in documents the witness was taken to on re-direct examination to clarify his evidence, it is clear that Sayyaf was also a deeply conservative Islamist with views just as extreme as those of the Taliban.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-89", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 201–202", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Mr. Young gave his evidence in a clear, concise and professional manner. He conceded weaknesses in the material relied upon by the Service when the deficiencies were apparent on the face of the documents or there was conflicting information on the record. He also held firmly to the Service position that Almrei is a risk to national security. But his repeated references to the fact that Almrei had lied or withheld information made me wonder whether the Service gave this factor more weight than it deserved in their assessment of the threat posed by Almrei. It is an unfortunate reality that many people lie in their encounters with the authorities over immigration matters. Particularly those who come from regions of the world where telling the truth to the authorities may not be advisable. Hassan Almrei\n\nThe respondent testified on his own behalf and asked that the Court take into consideration that his memory of details may be faulty after more than seven years of detention. He said that he had deliberately avoided reviewing the records of his previous hearings so as to tell his story to the Court as he recalls it now. He testified on his own behalf, in English and without the aid of an interpreter. He has learned English while in detention, mainly from the prison guards, television and reading.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-90", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 203–204", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In the respondent’s view, this was the first time that he has been able to give his complete story to the Court. He says that during the first security certificate proceedings in 2001, he refused to testify because he feared for the safety of his family and friends if he gave evidence in public. In his view, his opportunity to provide evidence during subsequent hearings was limited as the finding that he was a security risk had already been made and the question at those hearings was whether he should continue to be detained pending the outcome of removal proceedings. Almrei believes the process remains unfair, notwithstanding the involvement of the Special Advocates, as he does not see the closed information.\n\nAlmrei testified that he was born on January 1, 1974, in Syria, the fourth child of eleven. The family moved to Dammam, Saudi Arabia in 1981 because of a fear of persecution in Syria. Most of his family continue to live in Saudi Arabia. He has a sister in Lebanon and one sister and brother in England. He is the only sibling not to have attended university. His father taught Islamic studies in elementary school and taught at a mosque in the evenings which is where Almrei began to memorize the Koran from the age of five.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-91", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 205–206", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei is a hafiz, that is one who knows the Koran by heart. He also learned to recite it. Recital of the Koran is an art form in Islam. There are competitions for those who can do it well. Almrei says that he learned how to do this by buying tapes and emulating others. He also led others in prayer as an Imam. This is not the same as being a member of the clergy in the West, but simply refers to someone who has memorized the Koran and is able to recite it to lead others in prayer. Almrei does not consider himself to be an Islamic scholar but has read a great deal, particularly over the past eight years. He discussed his understanding of the basic tenets of the faith and the different schools of Islamic law.\n\nAs a young boy, Almrei testified, he told his family that he wanted to be known as Abu Hareth, because one of the Hadith of the Prophet refers to the name Hareth as particularly blessed. Almrei wished to give his son, when he had one, that name. Abu means father. The practice of adopting a kunya, or honorific and familiar name by which a male is known to family and close friends is common in the Middle East. It is often but not necessarily based on the first born son’s name. Abu Hareth became Almrei’s kunya from a young age. He says he did not adopt it as a nom de guerre, as the Ministers suggest, and did not attempt to conceal it from the authorities when he completed his refugee claim and was interviewed. He did not consider it a name that he should provide.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-92", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 207–210", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei’s father was a member of the Syrian branch of the Muslim Brotherhood (MB). His uncle and his uncle’s son had been jailed for their membership which was illegal in Syria at the time. His father had been sentenced to death in absentia. His mother was detained and interrogated on a later trip. Two of his uncles still live in Syria.\n\nThe MB is a transnational Sunni Muslim movement founded in Egypt in 1928. The political arm of the movement is legal in Egypt and serves as an opposition party. The MB was tolerated in other Middle Eastern countries such as Jordan. In Syria, it was proscribed as it had been involved in repeated efforts to overthrow the government.\n\nAn insurrection in 1981-82 was brutally suppressed by the ruling Baath party and membership was made a capital offence. Almrei testified that in 1982 as an eight-year-old boy attending mosque in Saudi Arabia he learned of the massacre in Hama, Syria in which thousands of Sunnis were killed by the Alewite controlled Syrian army.\n\nHe says that it was the memory of this event, in part, that later led him to declare to his father that he wished to join a jihad against those who would slaughter innocent Muslims. As a teenager he learned about the jihad in Afghanistan in the Mosque and through reading a Pakistani magazine. Among his siblings, he was the only one so motivated. The family initially treated it as a joke. At 16 he decided to go and sought his parents’ permission. His father’s conditions were that he complete high school and finish memorizing the Koran. As it turned out, he testified, he had completed the latter but not the former when he first went to Afghanistan in 1990 during the summer recess from high school. Almrei was then 16 years old.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-93", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 211–212", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei described his understanding of jihad as an inner struggle. He regarded the jihad in Afghanistan to be a legitimate struggle against the Russian invasion. The killing of innocents is contrary to the Koran. The Koran says fight in the name of Allah, those who fight you; do not be the aggressor; do what you need to do but no more. Bin Laden and others do not read the entire Koran. They use some verses from the Koran and the hadith but not the whole thing. The Muslim ummah agreed that what was going on in Afghanistan was a legitimate jihad. Bin Laden and others will go anywhere to kill others. That is not jihad. There are conditions and limits to what is permitted in jihad even where a Muslim land becomes occupied.\n\nRegarding 9/11, Almrei is not sure whether it was a political or a religious act. In religious terms it was against Islam first because the hijackers killed themselves. In Islam they are murderers. This was fitna or a bad thing. Many people died. In political terms it made no sense also as it could not help the Palestinian people or other Muslims. He describes himself as anti-American policy, but not anti-American. He had no objection to the presence of the American troops in Saudi Arabia and thought it was good for business. That could not be the occasion for jihad as they had come with the permission of the legitimate government with the approval of the ulemma or community of scholars.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-94", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 213–214", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In 1990, he went to Afghanistan during his summer break from high school to fight the Russians and the communist regime they had left in place. He did not differentiate between the two. He flew from Damman to Islamabad, Pakistan and from there went by bus to Peshawar, the usual “staging area” for Arab jihadis entering Afghanistan. A government office in Riyadh had provided advice and a 75% discount on the price of an air ticket. He traveled on a Syrian passport which was valid for two years renewable every six months. His father sent it to the MB to get an extra stamp to allow him to travel to Afghanistan. He had not done the obligatory military service in Syria and they would not let him travel outside the region. The MB stamps looked like valid Syrian stamps. He did not himself join the MB.\n\nThe bus took him to Beit al Ansar (House of Supporters) in Peshawar along with twenty or so others. This was big house in a nice neighbourhood with lots of rooms. They slept four or five to a room and also ate there. At Beit al Ansar, people ate, chatted, slept, hung around together. They could go out to restaurants or to the Mosque. People who had been to Afghanistan would come back for a rest. They did not talk about their personal lives. You would be regarded as an informer if you asked. There were many other houses in Peshawar for people of different nationalities. They didn’t pay. He stayed 27 days and became infected with malaria. His father told him to come back.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-95", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 215–217", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei returned home for treatment. He missed the first semester of school that year and asked his dad when he recovered if he could go back. He returned to Pakistan in 1991 with a flight again subsidized by the government. This time he met an older man on the plane, Sala’ud’din, told him where he was going and that he had memorized the Koran. Sala’ud’din suggested that he go to an Afghan camp rather than one run by the Arabs. He went with him in a taxi to Pabbi (or Babhi), a village near Peshawar controlled by Abdul Rasul Sayyaf.\n\nAlmrei knew of Sayyaf from the magazines he had read in Saudi Arabia. The Pakistan government had given each of the seven mujahidin groups in Afghanistan land for their refugees. Pabbi was Sayyaf’s camp. It was well established with schools, etc. He stayed at one of Sayyaf’s guest-houses because he was with Sala’ud’din. He met Sayyaf there. Almrei stayed for a few weeks waiting for a supply truck from Jalalabad and went back in the truck to a camp in Afghanistan. He testified that it is not what you might expect from the term “camp”. It was no more than a mud house farm with a corner to pray in and a village near by.\n\nThis was the Shahid Bilal camp near Jalalabad. The person in charge, Samir al Haq, showed him how to use an AK-47. This took about an hour to learn how to clean it, shoot it, etc., and then he was given one to use himself. He practised shooting at targets. While there were several other types of weapons there he did not train in their use. There were no other forms of training. He was there as a guest and could leave at any time. No one had a uniform; everyone wore the same clothes; there were no officers.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-96", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 218–220", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The others at the camp were Afghan mujahidin belonging to Sayyaf’s group. Sala’ud’din left after a few days, but Almrei stayed on for two months. He says that he spent his time largely teaching Arabic and leading prayers. When supplies were delivered to other camps in the area, he would often go along for the ride. Almrei says that in staying at the camp, he was practising rebat, or garrison duty; a form of jihad. He could hear occasional skirmishes but he himself did not see or take part in any fighting. He never saw Sayyaf there.\n\nAlmrei describes himself as a naïve 17 year old at that time. He thought that he would go do jihad, get killed and go to paradise. Sala’ud’din had educated him about the reality of jihad in Afghanistan. Sala’ud’din advised him to avoid the problems at the Arab camps. He said that if you have 10 Arabs in one place, you have 11 emirs. Almrei says that he had heard of Bin Laden in Saudi Arabia but never met him. He did not know or understand his politics.\n\nHe went home after the two months at the camp to finish high school. This took another year. At summer vacation in 1992 he returned to the Sayyaf guest house in Pabbi and the Shahid Bilal camp near Jalalabad. This trip took two months because that was the length of his summer vacation. He also visited Karachi on that occasion. Samir ul Haq was still in charge and gave him another AK-47. He met Sayyaf on that trip at the mosque in Pabbi, just to say hello. Sayyaf had no interest in a 17 year old. They never had a one to one meeting. In Peshawar and other locations he would get a room and just wander around.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-97", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 221–224", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Following graduation from high school, he worked for three months at a Saudi charity that built schools, hospitals and orphanages in Africa. He also ran a business selling incense, honey and perfume.\n\nIn 1994, he started hearing about the Russian occupation in Tajikistan in the Mosque in Saudi Arabia. Tajiks were becoming refugees in Afghanistan. He decided to go and see for himself. Asked for his father’s permission again. There was no discount this time from the Saudi government. He returned to Pabbi, inquired about Tajikistan and was told about Ibn Khattab. He went to Khattab’s guest house nearby and met Khattab later after evening prayers. They both spoke with a Saudi accent and Khattab was only three years older than him at that time. Khattab was also from Damman and still had family there whom Almrei later got to know. Khattab’s family was Bedouin from Aram in Northern Saudi Arabia and his father worked for the oil company Aramco.\n\nAlmrei travelled on to Khattab’s houses in Paghman, near Kabul, and Kunduz in the north where the Tajik leader Ahmed Massoud was based. Fighting was underway at that time (late 1994) between Massoud’s and Dostum’s forces and those of the Pashtun leader Hekamatyar. Massoud and Dostum were loyal to the Prime Minister Rabbani. The Afghans had been fighting each other since the fall of the Najibullah government in 1992. Almrei says that Khattab had decided to go to Tajikistan as that was still a jihad against an external oppressor. They were ashamed of what was going on in Afghanistan with Muslims fighting Muslims.\n\nAlmrei says he met Nabil Almarabh for the first time at the Kunduz house. Almarabh was passing through and stayed for just a few days.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-98", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 225–226", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Tajik refugee camp at Kunduz was led by Abdullah al Noury, a leader of the Tajik United Opposition party. There were many charitable organizations working to improve conditions and Khattab had offered to help. Almrei says that he became aware that they had a need for a girl’s school. He says the Tajiks were more open to education for women.\n\nAlmrei walked back to Jalalabad and went home to Saudi Arabia. While in Ryadh to buy oud for his business, he approached the Al Haramain Foundation and asked them for funding for a school for girls in Kunduz. He gave the name of a scholar from his home city as a reference. They gave him a cheque for 120,000 Rials (about $33,000 Cdn at the present exchange rate) which he cashed in to travel with. He returned to Pakistan in late 1995 and travelled from Pabbi to Kunduz with a guide and two Arabs mainly on foot and turned the money over to the men in charge of the camp.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-99", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 227–228", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "On this trip he accompanied Khattab on a scouting mission. He says that about twenty men went to the Amu Darya River bordering Tajikistan to see if there was anywhere they could cross without encountering a Russian ambush. They walked and rode donkeys rented from villagers. Almrei says he believed that Massoud and Rabbani had encouraged Khattab to enter into discussions or negotiations in Tajikistan but that they did not cross over on this occasion and returned to Kunduz. On a subsequent trip, he says they crossed over into Tajikistan on an inflatable boat and set up a camp on the north side of the river. It was not a military camp in any sense and there was no fighting while they were there. On a typical day they would fish with grenades or hunted rabbits with their AK-47’s. This was apparently a common practice in the region. He considered this period to be again, rebat or a form of garrison duty. He says they remained there two weeks and then he had to leave to return to Saudi Arabia to maintain his status there. The people he travelled with went on to Chechnya.\n\nWhile in the camp, Almrei says he talked about a variety of things with Khattab and came to know him well. He describes Khattab as devout and considerate to others and regards him to be a hero for his actions in Afghanistan and Chechnya. Almrei says he wasn’t interested in following Khattab to Chechnya; it “wasn’t in his blood”. He does believe in jihad but his experiences had been enough for him. He wanted to get on with his life.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-100", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 229–231", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei acknowledged that the Khattab he knew could have changed in Chechnya but he doesn’t believe it. He suspects the Russians set the bombs that they blamed on the insurgents to justify invading Chechnya. But if it were true that Khattab was involved, Almrei would no longer have any respect for the man as that is not jihad but a crime. Going to Chechnya to participate in a legitimate defensive jihad was supported by the Muslim ummah in Saudi Arabia.\n\nBefore coming to Canada, Almrei says he ran a honey, incense and oud perfume business which he had started in high school. It was illegal for a non-Saudi citizen so he rented space in an established business and used a Saudi front man by the name of Mohamed al Blooshi. During his trips to Pakistan, he had realized how cheap the products were there. His last trip to Afghanistan was in 1996. He took some additional cash for the school’s expenses and returned with substantial quantities of honey and perfume for his business.\n\nAlmrei says that the Saudi’s began to crack down on businesses fronted by Saudis and his associate al Blooshi was being questioned. They were also aware of his travels to Pakistan and Afghanistan and that he had spoken out about political matters in Saudi Arabia. He sold the business in 1997 and began looking to move elsewhere. He applied for a Canadian visa in 1998 and was refused. He considered going to Australia also but was dissuaded when he learned that they put refugee claimants in a detention camp.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-101", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 232–233", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In his 1998 application, Almrei said he would be visiting Hisham al Taha in Richmond, B.C. He didn’t know him but had asked Abu al Walid in Pakistan for help and had been given two names and phone numbers in Canada. One was for Ahmed al Kaysee in Toronto who didn’t answer when he called. Al Taha agreed when he was called. They were both Iraqi. Al Taha later did not recall having spoken to him when he was asked to assist in Almrei’s legal proceedings. Almrei said that this type of arrangement was common in his part of the world. He appreciates now, after seven and a half years in prison, that it is not common here.\n\nWhen that attempt failed, Almrei went to Jordan and bought a UAE passport and Kuwaiti driver’s license in the name of Yousuf Bilal (Exhibit R-28). This was a valid passport stolen or sold by the original holder and it came with a few entry stamps. In November-December 1998, he went to Bahrain to obtain a few additional documents to make the passport more credible. His friend al Blooshi obtained a multiple visit Canadian visa for him from the embassy at Abu Dhabi. When he called on the second occasion in January 1999, Al Kaysee agreed to meet him at the Toronto airport. Al Kaysee was then an Imam at a Toronto Mosque.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-102", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 234–235", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei described some dealings with his Syrian/MB passport with the Jordanian authorities. He says that they confiscated the one that he had after he had travelled to Thailand in August 1998 and later it was returned to him by the MB. His Aunt worked in the MB office in Amman and arranged to have it stamped with a Syrian exit stamp. The passport he had used in his tourist visa application to Canada earlier that year was confiscated upon his return from a trip to Turkey. On that occasion he was questioned by Jordanian intelligence about his travels and was later asked by the MB to provide them with a report on the interview.\n\nAlmrei used the UAE passport to come to Canada via the UK. That document has a Thai visa dated December 2, 1998 valid for a month. Almrei said initially that it was not his and came with the passport when he bought it. On cross-examination, he said it had to have been the one he obtained. He says he tested the passport by getting a visa from the Thai embassy but did not use it, hence the absence of entry and exit stamps.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-103", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 236–237", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "He went to Thailand in August 1998 because of its reputation for human smuggling. He went there to see if he could find a way to get to Canada, as well as for a holiday. In Bangkok he went to a night club and approached two men speaking Arabic. One of them was a Palestinian named Ghaleb. He met him the next day to discuss the matter at a hotel on Sukhimveit Road. Ghaleb told him he could arrange to smuggle him to Canada for about $10,000. Almrei didn’t use his services as he did not trust him. But after he came to Canada, he stayed in touch with Ghaleb about bringing people from Jordan to Canada. He says they spoke about three times at the instigation of his interpreter in Toronto who had asked for this assistance. All of this, he says, he told the RCMP after his arrest.\n\nAlmrei completed a refugee application in January 1999 with Hassan Ahmed’s assistance. It contained errors including incorrect dates. He says he was confused by the western calendar. That application was misplaced by CIC. The second application dated April 11, 1999 was prepared by his lawyer and contains information about his Syrian/MB passport. He did not disclose his travel to Pakistan, Afghanistan or Tajikistan, on the advice of his interpreter, he says. At the refugee hearing he did not mention Afghanistan but said he had travelled Pakistan to buy honey. He said he had destroyed the UAE passport which was not true.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-104", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 238–240", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The UAE passport was seized during a search of his apartment in 2000. CIC officers were looking for one of his room mates, Yahya, who was not there. He could not speak English at the time. They asked him to produce ID and then to sit while they searched the premises. They opened his briefcase and found documents including the passport which they seized leaving a receipt. Almrei offered to bring the room mate to the CIC office when he returned, which he did the next day.\n\nAlmrei says that he was called by the interpreter, Agha in 2001 and asked for assistance in getting a passport for Almarabh so he could leave the country to visit his mother in Kuwait. Almrei had previously learned of a contact in Montreal, Mohamed, who could provide false passports. The interpreter called him on several occasions trying to get him to obtain such documents but never followed through with the money. Almrei’s theory is that the interpreter is a government informant who was trying to set him up.\n\nAlmrei’s business in Toronto was two or three blocks away from the copy shop operated by Almarabh’s uncle. He had seen Nabil at the shop but had not recognized him. When they spoke and he introduced himself as Abu Adnan, his kunya, Almrei recognized him as someone he had met in Kunduz in 1994. They both looked different. They had long beards and were skinny then. Both were beardless and considerably larger.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-105", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 241–244", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei agreed to arrange for a false passport. He called Mohamed, rented a car, took Nabil’s money and drove to Montreal where he met Mohammed on St. Catherine St. He gave half of the money then with the photo. Mohamed’s accent was Algerian. They met the next day to transfer the passport with the new photo, citizenship, driver’s license and SIN card. He paid $2000 and kept the balance of $2000 for himself.\n\nAlmarabh was detained after a failed attempt to be smuggled across the border at Niagara Falls on June 27, 2001. He had not attempted to use the false passport. He was charged under the Immigration Act and released on a $19,000 bond put up by his uncle Ahmad Shehab with a contribution from Almrei. He was then smuggled into the US on July 7, 2001.\n\nAlmrei admits that he also participated in a scheme with Ibrahim Ishak to obtain valid Ontario driver’s licenses for people who could not otherwise legally obtain them. An Ontario GI permit would be taken to Michigan and exchanged for a Michigan license. They would then use those to obtain Ontario licenses with full driving privileges. They charged $500 for this service.\n\nAlmrei and his friend bought the Eat-a-Pita restaurant in the Yorkville area but lost money and sold the business after about nine months. He hired Zenab Awaymer as a cook. She had no status in Canada and paid him $4000 to arrange a marriage of convenience with Ishak. Ishak later withdrew his sponsorship after becoming engaged to a Bosnian woman. Almrei says he repaid the money. Awaymer returned to Lebanon. Almrei claims that he has no knowledge of the documents that Ishak was carrying when he was stopped and searched at the Detroit airport in February 2000.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-106", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 245–248", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Following 9/11, he says he became aware of the surveillance on him and became alarmed. He learned through news reports that the FBI was looking for Nabil Almarabh and knew that he would be connected through the false passport. His lawyer arranged for a meeting with CSIS. Almrei says that he was frightened. He comes from a region where he had heard terrible things about the intelligence authorities. In the result, he denied everything.\n\nFollowing his arrest, the RCMP interviewed him in jail about the passport he obtained for Almarabh and he agreed to talk to them on the understanding that it would not be used against him. No lawyer was present. He says they talked for about eight hours.\n\nAlmrei denies having been involved in an international forged document ring. He says that the only ones he was involved with were those he had described in his testimony. He says he never got anything from Ghaleb in Thailand; nothing more from the people in Jordan from whom he bought the UAE passport and that he had nothing to do with Ishak’s package of documents. He acknowledges that there was reason to be suspicious about what he was doing with passports but he never expected to be thrown in jail for it. He says that it was worth it in a sense as it gave him the opportunity to meet many people who have touched his life.\n\nOn cross-examination, Almrei explained that he had not disclosed his kunya, Abu al Hareth, to the immigration authorities as he does not consider it his name and does not use it in introductions. He was not asked by CSIS in October 2001 if he had a kunya. He did not withhold this information so that CSIS would have difficulty connecting him with his history. Most people in the community in Toronto had only known him as Abu al Hareth.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-107", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 249–251", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei was questioned closely on the passports he has held. Almrei says he had obtained three Syrian/MB passports. The one he received in 1990 required a Saudi stamp permitting exits for up to six months which could be renewed. He says that he lost that one after the first renewal and obtained a new one from the MB. That first passport is not in evidence. The second which he obtained in 1991, was taken by the Jordanians when he returned from Turkey in 1998 and he was given another by the MB. The third, which is in evidence, was issued in 1998 and was valid until May 2004. In the result, the passport which would document his travels from 1991 to 1998 is not in evidence.\n\nAlmrei said he was confused by the number of passports he was issued by the MB and may have had another one. He identified a Saudi driver’s license filed in the IRB proceedings (A-24) which refers to a Syrian ID issued in 1995. He agrees that is probably a Syrian passport but has no idea where it is. His explanation is that in travelling across the bridge from Damman to Bahrain for shopping or dinner required an entry and exit visa stamp. Passports would be filled up rapidly and replaced. The MB in Jordan was allowed by that government to print Syrian passports and those passports were accepted in Saudi Arabia.\n\nRegarding the UAE passport, Almrei says that he lied about destroying it in the IRB proceedings as he feared he would not be accepted as a refugee. If that happened he wanted to be able to use the passport again. When he was accepted, he forgot about it until it was found in his apartment. In his 2004 testimony before the Court, Almrei said he bought the passport with the Canadian visa already in it. He did not mention Al Blooshi’s role in obtaining it.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-108", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 252–254", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei acknowledged having had a Yemeni passport in the mid-90s. He had attempted to buy Yemeni citizenship in Saudi Arabia but destroyed the passport upon receipt as it came with someone else’s name and date of birth. At that stage he wanted citizenship anywhere and believed it could be bought in Yemen.\n\nSaudi intelligence had spoken to al Blooshi about his political opinions. Saudi Arabia was interested in people who had been to Afghanistan in the aftermath of the 1996 bombings in Khobar. They jailed thousands of Shiites from the eastern provinces suspected of cooperation with Hezbollah. They were also inquiring about people who had openly expressed opinions about the Royal Family. But he had to leave Saudi Arabia not for that but because of the Saudi law prohibiting non-Saudi’s from owning businesses. He was no longer in school and was not employed. He did not want to have to join the MB which was the only other option.\n\nAlmrei was taken back over his testimony about his travels in Afghanistan in detail on cross-examination. For the most part, his account held together in my view. He was uncertain on some dates and time-lines but that is not in itself surprising. On reflection, he said he thought his last trip to Pakistan was in 1995 and not 1996. He was there when the Egyptian Embassy was bombed in Islamabad, which was in November 1995. During his first trip to Kunduz, it was cold and snowy so that could have been early rather than late 1994. He didn’t care about the dates then and did not keep a diary. Now he is relying upon his high school transcript to determine the years. He thinks that he did two trips to Tajikistan in 1994 and a third in 1995.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-109", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 255–256", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Counsel for the Ministers questioned him closely on the reasons why he was allowed to stay at what he had characterized as Sayyaf’s “VIP” guest house in Pabbi. He explained that it was because of Sala’ud’din and that it was nothing more than a small house made of brick and mud, painted white. He recalls playing ping-pong with Sayyaf after a dinner but apart from that had little contact with him. When pressed about news articles citing crimes committed by Sayyaf’s men, he said he accepts that they may have done this but he never saw it and does not believe that Sayyaf would have allowed it. Almrei wondered why he was being asked to answer for Sayyaf’s actions. He has no respect for the mujahidin leaders who killed civilians.\n\nAlmrei freely admitted having lied to the Canadian consulate in his application for a visa in 1998, that he lied to the customs officer at the airport in January 1999, lied to the IRB and CSIS. He says he assumed that they knew that people lie in coming to Canada. After 9/11, he would have freely told CSIS about his travels had they told him they were aware. He spoke to the RCMP when they told him they knew about the Almarabh passport. But CSIS was not interested after the first certificate was upheld. Almrei says he is sorry for what he has done, not who he is. He acted on the advice of his interpreter who told him that his travels to Afghanistan could not be verified as there were no visas issued.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-110", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 257–259", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei contributed $2500 to Almarahb’s bail bond and was repaid after he was released. Almarahb called him later from the US and asked for other documents or the name of Almrei’s contact in Montreal. Almrei refused. He acknowledged having a reputation within the community as a person who could get false documents. Assumes that was in part due to Agha spreading the word around.\n\nHe met Ishak at a Toronto mosque in 1999 and worked with him at the airport on three occasions. Ishak Knew a man who was involved in a cleaning contract. The first and second jobs were to wash the exterior of aircraft in a hangar. The third night they cleaned the interior of aircraft in another hangar.\n\nIn 2004, Almrei said that he did not believe that Bin Laden was responsible for 9/11. At that time, he says, he had limited English and believed the conspiracy theories that were common in the Muslim world. In his culture, conspiracy theories are the first to be accepted. They blame others for everything done by Muslims. He couldn’t accept that a Muslim could do such an act. He has read a great deal since and has no doubt now. However, he still believes that Bin Laden had given a lot to the Afghan people. Prior to 9/11 Bin Laden to him was just another person supporting the mujahidin. Now he is disgusted by his actions.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-111", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 260–262", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "On re-direct, Almrei said his reading and exposure to other influences has changed his view on many things. When he was in Afghanistan, he did not talk politics. He did not know who funded or controlled the guesthouses before he went there. No one spoke about Al Qaeda. He is confused about dates because he used the Islamic or Hijiric calendar until after he was arrested. It is not synchronized with the western calendar. He admits to blaming U.S. policy for 9/11 but did not mean that people deserved to die. In Toronto he knew no one who had been on jihad other than al Kaysee. The Expert Opinion Evidence:\n\nThe Ministers put forward one witness to be qualified as an expert, Dr. Martin Rudner. Initially, the respondent sought to have six witnesses qualified as experts. During the course of the proceedings, the respondent agreed that it would not be necessary to call two of them as the evidence which they would have offered was not a matter of controversy between the parties. In the result, the respondent tendered the opinion evidence of Mr. Thomas Quiggin, Dr. Brian Williams, Dr. Lisa Given and Sheikh Ahmed Kutty.\n\nIn determining whether to admit the opinion evidence of these five expert witnesses, I considered the criteria set out in R. v. Mohan, [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, which are (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. I had no difficulty concluding that each of the five witnesses satisfied these criteria, albeit with some limitations. Dr. Martin Rudner", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-112", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 263–265", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Rudner holds Master’s Degrees in International Relations and Asian Economics and Politics from McGill University and the University of Oxford and a Ph.D. in Asian Studies from the Hebrew University of Jerusalem (1974). He is presently Distinguished Research Professor Emeritus of Carleton University. He was founding Director of the Canadian Centre of Security and Intelligence Studies and established the Center for Security and Defence Studies at Carleton.\n\nIn addition to his academic and research work, primarily focused on Southeast Asia, Dr. Rudner has organized and contributed to national and international conferences on intelligence and security issues and has consulted and lectured on security and counterterrorism issues to various government departments and agencies. For that work he has a top secret security clearance. He testified at the Air India inquiry and has served as an expert witness for the Attorney General in other proceedings.\n\nDr. Rudner knows some Arabic, but could not read a newspaper or carry on a conversation in that language. He is fluent in other Islamic languages, including those spoken in Indonesia and Malaysia, and speaks French and Hebrew. He has a depth of knowledge on political developments in the Muslim world, particularly Indonesia, based on many years of scholarship of the role of religion in international affairs, particularly the balance between state interests and religious objectives. In the course of his work in that field, he has gained a broad understanding of Al Qaeda and its affiliated extremist groups.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-113", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 266–267", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Rudner was put forth by the Ministers to provide expert evidence on intelligence and counterterrorism dealing with Al Qaeda and its affiliated groups and movements around the world and on the misuse of identity documents, particularly passports, by terrorists and extremist groups in furtherance of their cross-border operations. He has written on that subject including a report for the Passport Office on terrorism and document misuse. His work in this area has been based on the empirical research of others.\n\nDr. Rudner provided the Court with insightful and helpful opinion evidence on the historical, cultural and theological context to the worldwide phenomenon of Islamic extremism and terrorist violence. In his testimony, he demonstrated a deep knowledge of the development of fundamentalist Islamic thought including the Hanbali/Wahhabi school prevalent in Saudi Arabia and Salafism, the practice of emulating the ways of the prophet and his followers. This was particularly helpful in understanding the motivations that drive contemporary Islamic extremists. Dr. Rudner was careful not to equate Wahhabism and Salafism with terrorism.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-114", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 268–269", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Rudner has an understanding of security intelligence matters related to terrorism derived from his broad reading in that field. However, he claims no expertise with respect to the Afghan conflict, has not visited the region and it has not been the focus of his research and publications. When it came to the history of the conflicts in the region, I preferred the evidence of Prof. Williams who has traveled and conducted research there. Dr. Rudner’s knowledge, for example, of the Afghan training camps stemmed primarily from publicly available literature, including the Al Qaeda training manual, and not from any direct experience in the region and acquaintance with the participants, as has Williams.\n\nThe Ministers sought to have Dr. Rudner counter the evidence which Mr. Quiggin had given in the detention review proceedings with regard to the misuse of identity documents. While Dr. Rudner has written on the subject, he has not conducted any specific research on that topic and has relied on secondary or tertiary sources of information, such as newspaper articles, of questionable reliability. In any event, I did not find his opinion evidence on the subject to be necessary as the fact that terrorists cross borders with false documents could be established through fact evidence. For example, the CSIS witness Robert Young gave several specific examples of known cases.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-115", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 270–271", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Rudner provided a helpful overview of the origins of modern Islamic extremism including the founding and spread of the Muslim Brotherhood and the writings of Syed Qutb and Abdullah Azzam. Qutb was an Egyptian member of the Brotherhood and influential author, executed in the 1960’s for offences against the state. Sheikh Abdullah Azzam was a displaced Palestinian with a PhD from Al Azhar University in Cairo. Funded by the Muslim World League and other donors, Azzam had set up the Mekhtab-al-Khidemat (MAK) Islamic services agency with offices in the Middle East and elsewhere, including Europe and the US, to facilitate arrangements for Arab volunteers to join the jihad in Afghanistan against the Soviets.\n\nAzzam mentored Bin Laden and other Afghan Arabs introducing them to Qutb’s pan-Islamic ideology centred on the ummah or Muslim nation. He was assassinated in 1989, allegedly by members of the Egyptian Islamic Jihad organization who had joined with Bin Laden and other supporters to form Al Qaeda. While the matter is not without controversy, Azzam is said to have disagreed with the direction taken by Al Qaeda, maintaining that a proper jihad was against combatants, and specifically against those who were directly oppressing Muslims in Muslim lands.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-116", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 272–273", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Rudner disputed Thomas Quiggin’s and Dr. Williams’ assessments that Azzam was a moderate. He endorsed the journalist Peter Bergen’s view (Ex. A-, T-4) that Azzam’s dream was to restore the Khalifa (Caliphate); to unite Muslims throughout the world under one ruler. Dr. Rudner acknowledged that the severe Wahhabi traditions of the Arabian peninsula were alien to Afghans who generally followed the Hanafi school and Deobandi tradition. Azzam urged the Arabs to understand and be tolerant of Afghan practices they considered un-Islamic. His dispute with Al Qaeda was mainly over what was to come next. Azzam wanted to extend the jihad to the neighbouring countries of Central Asia dominated by the Russians. Bin Laden wanted to take the fight to the Arab heartland to overturn the apostate regimes. Bin Laden’s innovation was in interpreting the Koranic “verse of the sword” as justification for external jihad as Islamic self-defence. In Dr. Rudner’s view they shared the same values. The disagreement was over priorities. For Bin Laden, the “near enemy” were the apostate regimes that could only survive with the support of the west or the “far enemy” thus all were subject to attack.\n\nBin Laden returned to Saudi Arabia after the Soviets left Afghanistan in 1989. His initial reception was as a hero and celebrity for his role in supporting the jihad. As described by Peter Bergen (Ex. A-2), he was “lionized” for having left the typical Saudi millionaire’s comfortable life to join the jihad in Afghanistan. In Dr. Rudner’s view, as a teenager growing up in Saudi Arabia and interested in jihad at this time, Hassan Almrei would have known of Bin Laden’s reputation.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-117", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 274–276", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Iraq’s invasion of Kuwait led to Bin Laden’s falling out with the Saudi government over the presence of American troops on Saudi territory. Bin Laden and his entourage moved to Sudan in 1991 at the invitation of the Islamist leader, Hassan Turabi. They left Sudan in 1996 after pressure was exerted by Saudi Arabia, the US and Egypt and returned to Afghanistan through Pakistan.\n\nDuring Bin Laden’s absence, the jihad in Afghanistan had continued against the communist government which remained in power with Soviet support. An alliance of Afghan mujahedin groups formed to defeat the government. These groups were largely linked by ethnic and tribal ties and included Pashtun militias under Gulbuddin Hekmatyar and Abdul Rasul Sayyaf, Tajiks from the Panjshir Valley led by Burhanuddin Rabbani and Ahmed Shah Massoud, Aburashid Dostum’s Uzbeks from Mazare Sharif, the Shiite Hazaras and others. While united in opposition to the government, they couldn’t agree on how power was to be shared when it was defeated.\n\nWhen President Najibullah’s support collapsed in April 1992, Massoud and Dostum outmanoeuvred Hekmatyar for control of Kabul and the central government. A government was installed, led by Rabbani. Civil war ensued. Much of the country was controlled by warlords and local militias. The Taliban, led by Mullah Omar and mainly Pashtun, emerged in 1994 from the south and proceeded to gather support and overcome the warlords. Bin Laden returned in May 1996. The Taliban took Kabul in September 1996. Bin Laden settled in Kandahar and took over or set up a network of training camps and guest houses. According to Dr. Rudner, there are estimates that about 70,000 mujahidin passed through these facilities from 1996 to 2001.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-118", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 277–279", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Rudner discussed the Islamic concept of Takfir wa al Hijra. This refers to removal of oneself from an apostate community (Takfir) and going into exile (wa al Hijra). In modern times this has been interpreted by extremists as authorizing emigration or flight to take refuge in western countries to reform, mobilize and prepare for a return to their homelands. Going to the west was similar to what the prophet had done in going to Mecca, moving from dār al-harb (the world of war) to dār al-islām (the abode of peace and freedom).\n\nIn Dr. Rudner’s view, Sunni extremists adopted a doctrine of pretence and dissimulation (kitman and taquiya) to deceive western authorities, including the courts, citing a manual for mujahidin entitled “Encyclopaedia of the Jihad” (Ex. A-1, T-5). He referred to the work of the Syrian Al Qaeda theorist, Abu Musab al Suri, who promoted a model of distributed leadership.\n\nCommenting on the debate among experts on this topic (Sageman/Hoffman articles, Ex.A-5), Dr. Rudner acknowledged that a number of high level Al Qaeda activists have been killed or captured but he doubts that it has weakened them. In his view, Al Qaeda is an “action oriented, learning organization”. It doesn’t matter what their numbers are as they have created the distributed organization planned by Al Suri, the strategist. On cross-examination, he agreed that the weight of opinion is that Al Qaeda is now both centralized and diffused in that there are experts who credibly believe that it is less dangerous today than it was in 2001.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-119", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 280–282", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In his view, Hassan Almrei would have been an attractive recruit for al Qaeda because of his status as a veteran of the Afghan jihad and contacts with both Sayyaf and Khattab. His knowledge of how to obtain legitimate or forged travel documents would have been a useful skill set for a terrorist organization. He noted that Thailand has a reputation as a world centre for fraudulent passports and that Saudi Arabia was also known for the production of good quality false passports until the government cracked down in 2007.\n\nDr. Rudner did not think that Almrei’s account of obtaining funds from the Al Haramain Islamic Foundation for an Islamic school in Afghanistan was plausible. While Al Haramain is a large organization with its own accountability mechanisms, in his opinion, people who approached Al Haramain for funding would be couriers between the requesting agency and the organization. This would require validation and trustworthiness beyond what Almrei had described. In his view, it was more plausible that Almrei had couriered money to ibn Khattab for the jihad in Tajikistan and later in Chechnya. Al Haramain created a Foundation for Chechnya Fund to support the Chechen guerrillas (Ex. A-1, T-17).\n\nOn cross-examination, Dr. Rudner acknowledged that the Saudi branch of the Al Haramain foundation was not included in the UN list of financial institutions (Ex. R-2) that funded terrorism. He agreed that financial transfers in the region would have to be in currency due to lack of banking systems. He has no personal knowledge of the Foundation’s practices and could only speculate as to what they would require to validate a funding request.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-120", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 283–285", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Rudner was cross-examined closely on the accuracy of sources he had referenced in his report, including a Washington Times article dated August 1, 2008 (Ex. R-3), an article on the use of deception by Raymond Ibrahim (Ex. R-4) and the Encyclopaedia of the Afghani Jihad (Ex. A-7). The content of the Washington Times article did not support the statement for which it was used as a reference. There is no explicit reference in the Encyclopaedia to support the statement that it encourages Al Qaeda members to deceive the court. Dr. Rudner acknowledged that Mr. Ibrahim’s perspective may be biased.\n\nThe witness was taken to an excerpt from Rohan Gunaratna’s “Inside Al Qaeda” (Ex. R-6) which quotes Abdullah Azzam as being against the killing of innocents. After Azzam was killed an extremist faction of MAK joined Bin Laden but the mujahidin who had been close to Azzam constantly quarrelled with them. To seize control, Bin Laden had to rely on his Egyptian allies. Gunaratna says the Egyptians killed Azzam and that it was at least tacitly condoned by Bin Laden. By acquiescing in Azzam’s murder, Osama freed the organization from being constrained by its founder’s guiding principles and rules.\n\nOn the classical doctrine of jihad which partitioned the world into Dar al-Islam and Dar al-Harb, Dr. Rudner agreed that since 9/11 there have been references to other worlds; e.g., Dar al Haq or house of truce. People in the Islamic Diaspora to western countries are arguing this perspective but not those in the Islamic countries. Taken to some of his writings in 2003-2004 (Ex. R-8, R-9), he agreed that subsequent events and information have evolved and changed the views he expressed at that time.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-121", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 286–287", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "When taken to a text by Reza Aslan, “No God but God” (Ex. R-7), which asserts that there is an outright prohibition in the Koran of all but strictly defensive wars, Dr. Rudner said he sees this as an apologia. He accepts that there is a broader view of jihad in the Muslim world that is of a greater or spiritual jihad. “Islamism” in his view encompasses those who believe that action should be taken now to expand Dar al-Islam. Militant Islamists want to do it with force. On re-direct, he included Abdullah Azzam in that perspective and cited statements from Azzam’s work “Join the Caravan” (Ex. A-3, T-2, pp.132-133): “… jihad is obligatory continuously until every piece of land that was once Islamic is regained.” “…jihad when mentioned on its own only means combat with weapons…” “the saying, “we have returned from the ‘lesser jihad’ (battle) to the greater jihad” is a false, fabricated hadith…” Mr. Thomas Quiggin\n\nMr. Quiggin was qualified as an expert witness when he testified during the detention review proceedings for reasons which are set out in that decision (Re Almrei, 2009 FC 3, [2009] F.C.J. No. 1). He was permitted then to give opinion evidence on the structure and organization and evolution of the global jihadi movement. In this hearing, the respondent also sought to have him qualified as an expert in intelligence collection and reliability. Mr. Quiggin acknowledged that he is not an expert in the Koran, Islamic history and Islamic jurisprudence. Nor has he ever recruited or managed a human source other than in the informal sense of connecting or networking to collect information.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-122", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 288–290", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Ministers dispute Mr. Quiggin’s expertise in the reliability of national security intelligence on the grounds that neither his educational nor his professional credentials nor his employment history supports a conclusion that he possesses sufficient expertise in this area. His primary background is in military intelligence.\n\nAs I stated, at paragraph 194 of the 2009 FC 3 decision, there are no specific credentials that potential experts must have in order to be admitted as experts. Opinion evidence may be given by a witness “who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify”: Mohan, above, at para. 27. “The only requirement for the admission of expert opinion is that the expert witness possesses special knowledge and experience going beyond that of the trier of fact”: R. v. Marquard, [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, at para. 35 quoting from R. v. Beland, [1987] 2 S.C.R. 398, [1987] S.C.J. No. 60, at p. 415.\n\nI continue to be satisfied that due to his work history and studies, outlined at paragraphs 187 to 192 of the January 2009 decision, Mr. Quiggin possesses special knowledge and experience going beyond that of the Court and that his opinion evidence assists the Court. In my view, that special knowledge and experience extends beyond the fairly narrow scope on which he was qualified for the detention review proceedings and includes the field of security intelligence. While he is not a career intelligence officer, he has been employed in that area by the Canadian military and several government departments, including the Privy Council Office, and has studied and written on the subject of assessing the reliability of raw intelligence.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-123", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 291–293", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In addition to his qualifications reviewed in the previous decision, Mr. Quiggin has recently taught a course on strategic intelligence analysis at the Canadian Centre for Intelligence and Security Studies at Carleton University and has undertaken a study of terrorist groups in 70 countries for the United States Department of State. I found his opinion evidence on intelligence collection and reliability and jihadi movements to be helpful and had no qualms in concluding that the proffered evidence satisfies the Mohan criteria.\n\nMr. Quiggin was referred to the respondent’s counsel for consultation by the US military defence counsel in the Omar Khadr matter. He had delivered a lecture to Guantánamo defence counsel on intelligence procedures. Mr. Quiggin reviewed the February 2008 public summary and became concerned about several questions: the absence of references to primary sources; a lack of information about where Mr. Almrei would fit in the larger scheme of global terrorism; and the irrelevance of unconnected references to other cases. He says that he would not have agreed to testify had the government’s allegations in the summary appeared reasonable.\n\nQuiggin met Almrei before agreeing to testify. He says that he wanted to meet with the respondent to satisfy himself after reading the Crown’s case. They talked for about four hours. As a result, he doesn’t think he espouses the Al Qaeda ideology or that he is a danger to Canada. Almrei shares views which are critical of American policy and are widely held in the Arab street and elsewhere. This does not equate in Quiggin’s view with support for Al Qaeda.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-124", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 294–295", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Opinions such as this go to the ultimate issue and it falls to the Court and not to the expert to make these determinations: Mohan, above at paragraph 24. Nonetheless, I thought it was useful to hear Mr. Quiggin's views on these matters as no one within the government has attempted to interview Mr. Almrei in recent years to determine whether he supports the Bin Laden ideology.\n\nThe witness freely acknowledged that he is not an academic scholar and that his writings have appeared primarily in periodicals aimed at practitioners and a more general readership. He says he respects the role of academics, attends their conferences and finds their tools of analysis useful. But in his view, real world experience such as attending Muslim events, as he has done, is also valuable. From his perspective, there is reason to be optimistic about the nature of reform in Islam. He agrees with Dr. Rudner that there is a fundamentalist movement within Islam to return to the traditions of the Prophet. But, he believes there is also a growing effort among many Muslims to interpret Islam in a more modern and moderate way.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-125", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 296–297", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Mr. Quiggin does not profess to be an expert on the Koran but has read widely and consulted others on how Koranic concepts related to the extremist ideology espoused by Bin Laden. This evidence fell within the outer boundaries of what I considered to be his expertise. In his understanding, defensive jihad is clearly set out within the Koran as the obligation to defend a Muslim majority territory. Offensive jihad, as he understands it, would be haram, or forbidden. Mr. Quiggin acknowledges that extremist scholars and Al Qaeda justify aggressive jihad but he believes that most scholars do not support it. The notion of hijra or migration has also been distorted by Al Qaeda to support calls to jihad in foreign countries. Salafism, or the return to the practices and lifestyle of the first generations to follow the prophet, is also being used inappropriately. As is the concept of shahid or martyrdom in the context of suicide bombings. This is justified only by extreme ideologues. The mainstream view is that it is not permitted in Islam.\n\nTakfir or the concept of declaring someone an infidel or apostate has been adopted by Al Qaeda to justify killing anyone who doesn’t agree with them including Muslims living in infidel lands. Devout Muslims are offended by this use of the principle; that Al Qaeda figures without religious credentials would declare someone else takfir. While counterintuitive, Quiggin considers that the lack of religious knowledge is more of an indicator of vulnerability to extremism among Muslims. High practicing individuals, in his view, are more likely to be resistant to such pressures.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-126", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 298–300", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "On cross-examination, the witness was taken back over this ground in detail. He does not dispute that extremists such as Bin Laden and al Zawahiri may be pious or devout Muslims but he considers that extremism, in general, does not equate with a deep religious knowledge. In his view, militants may speak with a religious voice but are predominantly secular and motivated by political considerations.\n\nIn their closing submissions, the Ministers have argued that Mr. Quiggin erred in his understanding of some Islamic terms such as hijra. In the Koran, this refers to the Prophet’s move to Medina. Quiggin spells it differently but defines it correctly as being used in the modern sense to refer to “migration”. The transliteration of Arabic terms to English allows for a considerable variation in spellings. In any event, I have put little weight on this or other differences between the witnesses on terminology. Aside from Sheik Kutty and Hassan Almrei himself, none of the others are native Arabic speakers and all rely on English translations.\n\nMr. Quiggin observed that there is a problem of access to reliable information in the study of jihadism and a risk of state actors exaggerating the threat for their own purposes. He discussed the growth of the “intelligence industry”; i.e., private contractors producing analysis for profit and creating websites to feed the “terror industry”.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-127", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 301–303", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "One example of this in the government reference documents are a series of reports attributed to an organization called “ERRI” which produced a “Daily Intelligence Report”. This, as it turned out when the Court asked for an explanation, was a website created by a group of American paramedics and other first responders in 1990 which later was turned into a news aggregator service. In other words, it picked up and repeated news reports from other services. There is no assurance that this information is reliable.\n\nIn Mr. Quiggin’s view, intelligence is simply processed knowledge whether it consists of classified or unclassified information. The purpose of intelligence is to provide warning and understanding. Concerns about the reliability of intelligence can arise from many different issues: fixed mindsets, cognitive bias, stove-piping, deception and disinformation, transliteration and translation problems, cultural or contextual differences.\n\nMr. Quiggin provided examples of how these concerns may cause problems. Of particular relevance were his comments about human source information. This information is highly valued by the intelligence community but comes with high risks. The personal backgrounds of such sources may be questionable and there is always the risk of embellishment where the source provides information he or she thinks the handler wants to hear. This is particularly the case where the source has become a directed agent. The fact that a source may be generally reliable does not mean that they are reliable every time or the time that is important.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-128", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 304–306", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "On cross-examination, the witness gave the example of a human source known as “curve-ball” who was relied on by the US government in the lead up to the invasion of Iraq. The information provided by that source was highly valued but has since been almost entirely discredited.\n\nMr. Quiggin also pointed to the fact that intelligence information does not age well. As a general rule, information that is six months old should be verified. Information that is believed to be credible at one time because of the source may prove to be inaccurate later. It may have been fair to rely on it at the outset but such reliance would be invalid later if additional and contradictory information is available. This was, in my view, a telling observation with respect to much of the intelligence relied upon by the government in this case.\n\nThe witness discussed reliability indicators and a methodology used by the Canadian military to assess intelligence. He reviewed what were, in Mr. Quiggin’s view, significant problems with the reliability of some of the open sources used in this case. These raised issues to him of accuracy and timeliness. Events described were subsequently determined not to have happened. The reports contain evasive words such as “suspected”, “said to have”, “according to”, “links to” which indicate that the information has not been substantiated. His concern was that there was no indication of a strenuous form of information checking by either the CSIS analysts who included this information in the SIR and the public summary or their supervisors.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-129", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 307–308", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The witness came back to this on redirect. He stated that he was surprised to learn that the summary had been written seven years into the case. He could have understood and accepted the problems with it if it had been written at the outset. There was great pressure on intelligence services at that time, the indicators were weak, experts were not available and it was difficult to find references to substantiate the information. But seven years later, the selective use of misleading information is inexplicable, in his view.\n\nAn example of this was the use of a reference to a newspaper account of Lord Carlisle’s report on the operation of the UK anti-terrorism legislation (T-109) rather than the primary source, the report itself. The headline and body of the newspaper article were misleading. In Quiggin’s view, the report itself was not used in the public summary because it did not support the proposition for which it was cited while the misleading news report did.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-130", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 309–310", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Quiggin disputes the characterization of Ibn Khattab in the public summary as being a member of the Bin Laden network. He is aware of the controversy over this amongst historians and of the information that Khattab had met Bin Laden during the anti-Soviet jihad. His understanding is that Khattab was a Bedouin from the Saudi Arabia/Jordan border area. His mother was Circassian, i.e., from the north Caucasus. Writings about him are largely retrospective. His brother has been quoted as saying Khattab had a deep hated of the Russians, stemming from the oppression of his mother’s people. He was a late-comer to the Afghan jihad but participated in the fighting at the same time as Bin Laden. Khattab stayed in Afghanistan after the departure of the Soviets for the on-going civil war at the time when Bin Laden had gone back to Saudi Arabia and was concerned with the Kuwaiti invasion. Khattab participated in the Tajik civil war which involved a coalition of liberal and fundamental Islamists against government forces from the north supported by the Russians.\n\nThere are two points of view about Ibn Khattab, according to the witness. One which says that he subscribed to global jihad. The other says that he went to Chechnya to kill Russians because of his personal history and interests. The Chechen insurgents were fighting their traditional enemies, the Russians. They did not change their target after Khattab became involved and allied himself with their leader Basayef. That is, they did not then join the global jihad against the West. The Chechens were grateful for support but would not submit themselves to Khattab's command. Moreover, while Bin Laden may have had an interest in the Chechen jihad, it could not be said that the Chechens had a strong interest in Al Qaeda.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-131", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 311–313", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Regarding the kidnapping of civilians employed by non-governmental organizations in Chechnya, an allegation against Khattab, in Quiggin’s view they may have been regarded as legitimate targets if they were perceived to be assisting the enemy. If Khattab was involved in that, it would make him a “bad guy” but not necessarily a member of Al Qaeda. In Quiggin’s view, the claim that Khattab was responsible for terrorist bombings against Russian civilians is typical Russian disinformation. Terrorist bombings were not Khattab’s style. He preferred direct frontal attacks on military forces and would videotape them for their propaganda value.\n\nOne has to look at the man himself, according to Mr. Quiggin. There is no record of hostile statements by him against the US or Israel. The quote attributed to Khattab (Ex. A-1, T-4) regarding attacks on US troops in Saudi Arabia < “They seized our territory, and Muslims have the right to seek such a solution” > is a widely held view among Muslims because Saudi Arabia is the site of two of their most holy places.\n\nOn cross-examination, Quiggin disagreed with the suggestion that Khattab had Islamicized the Chechen conflict. In his view, the Chechens were Muslims to begin with, albeit mainly secular, and Khattab was not there long enough to have had that much influence on them.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-132", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 314–315", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Regarding Sayyaf, Quiggin believes that his background is clearer. He is an Afghan Pashtun who studied in Egypt and speaks fluent Arabic and English. Addressed by the honorific title Ustad, he qualified to teach Islamic law and was a Kabul University Professor. While in Egypt he probably fell under the influence of the Muslim Brotherhood. Sayyaf emerged as a combat leader during the anti-Soviet jihad and was identified by the Arabs, including the Saudi government, as someone they could deal with. Sayyaf was based in the south but also operated in the north. Most of the real fighting was done by the Afghans rather than the Arab volunteers. The post-war mystique about the role of the MAK and Al Qaeda is overblown, in Quiggin’s view.\n\nSayyaf had authority over his own guesthouses and camps. He provided training for his own people. At the outset, during the anti-Soviet war, he had a positive relationship with Bin Laden. But his focus was on Afghanistan and not other countries. He shared the common view among Muslims about the presence of US troops in Saudi Arabia. Sayyaf supported Rabbani and fought with the northern alliance as the Americans came in. And he was sought out by the US special envoy in 2003 to form part of the new administration. In Quiggin’s view, he is not known to support the global jihadist agenda or to have any territorial aspirations outside Afghanistan.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-133", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 316–318", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The witness was taken to Exhibit A-2, T-3, Kathy Gannon’s account in “I for Infidel” of a meeting in Pakistan’s tribal region which suggests that Sayyaf willingly joined in the plot against the West. According to Quiggin, the outcome of the meeting does not suggest that Sayyaf submitted himself to the authority of an outsider and joined the global jihad. He remained focused on Afghanistan and loyal to Rabbani.\n\nOn cross-examination, he acknowledged that the name of the Abu Sayyaf Islamist militant group in the Philippines was derived from the Afghan Sayyaf after the father of the founder had stayed in one of his guesthouses during the anti-Soviet jihad. Other documents indicate that among the persons who stayed at his guesthouses over time included Khalid Sheikh Mohammed and leaders of Jamayah Islamaiah from Indonesia (A-2, T-10). The US Department of State reports on Afghanistan for 1995 and 1996 say that Sayyaf continued to harbour and train potential terrorists. On redirect, Quiggin questioned the reliability of those reports as the Americans did not have personnel on the ground in Afghanistan at the time.\n\nThe dispute in the MAK between Azzam and Bin Laden arose because the former preferred to work outwards in Central Asia. Others such as Bin Laden favoured returning to Egypt and Saudi Arabia to overthrow those governments. After Azzam is killed, Bin Laden fell under the influence of the virulent ideology of the EIJ members such as Ayman al Zawahiri. Many of the Afghan Arabs began to drift away to get on with their lives. Some went on to the jihad in other Central Asian countries. Others coalesced around Bin Laden and Al Qaeda.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-134", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 319–321", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In Mr. Quiggin’s view, it is a misconception that the Muslim Brotherhood and Al Qaeda are allied in a common cause. In 1973, the Brotherhood chose to abandon violence as counterproductive. Some did not accept and formed Egyptian Islamic Jihad, including Ayman al Zawahiri. There has been no major terrorist incident attributable to the Brotherhood since. The Syrian chapter later followed suit. Zawahiri’s book “The Bitter Harvest” in 1991 was an attack on the Brotherhood. The head of Al Qaeda in Iraq issued a similar condemnation of the Brotherhood in 2003. Members of the Brotherhood are treated by Al Qaeda as apostates.\n\nIn reference to Hassan Almrei’s travels, Quiggin does not believe that someone who went to jihad in 1990-92 would be necessarily a threat to the security of Canada. He acknowledges that going to Tajikistan during their civil war would raise a concern to analysts. The association with Khattab and Sayyaf in itself is not a sufficient indicator, in his view, of a security risk.\n\nAl Qaeda’s ideology while couched in religious terms, is a political movement generated by resentment against the effects of colonialism. The empirical research of Marc Sageman and others has demonstrated that it attracts persons from middle class, low practising family backgrounds with higher education. The core membership was at a high point in 2001 (2000 – 3000) but recent estimates are of 2-300. There are about 23 affiliated groups which subscribe to the Bin Laden world view and recognize Al Qaeda leadership. Other home-grown individuals are inspired to act and connect with other like-minded persons through the Internet.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-135", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 322–323", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The hypothesis that those who were once connected to Al Qaeda remain so forever does not stand up to scrutiny in Mr. Quiggin's opinion. Saudi Arabia has had some success with the rehabilitation of former extremists and Egypt has released thousands who have not gone back to violence. The Ministers case is concerned with inferences drawn from association or linkage to Al Qaeda. The Taliban supported Al Qaeda. Hamid Karzai supported the Taliban. Canada supports Karzai. If you took the logic to its extreme, in Mr. Quiggin’s view, one could say that the Canadian government is linked to Al Qaeda. It is all a question of context. Sheikh Ahmad Kutty\n\nSheikh Kutty began his education in Islamic studies in India and Saudi Arabia. He has served as an Imam since coming to Canada. He then earned a master’s degree in Islamic studies at University of Toronto and completed the coursework of doctoral studies in Shari’a law at McGill University. Presently he is a senior lecturer and resident scholar at the Islamic Institute of Toronto and a non-resident Imam at the Islamic Center of Canada, the Bosnian Islamic Center and Ansar Mosque. He also serves as a jurist-consult with IslamonLine.net, an international website supervised by international Muslim scholars, and on the Figh Council of North America, the pre-eminent Islamic legal body in North America.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-136", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 324–325", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Sheikh is a term of respect within the community for a person of wisdom. Sheikh Kutty is also an Imam and a mufti. Imam is the term used to describe somebody who leads prayers; usually one who has memorized the Koran. A mufti is a scholar in Islamic jurisprudence who issues fatawa (singular is fatwa) or rulings on questions relating to the Islamic faith, including acts of worship, family life and business transactions. He has written a number of scholarly papers on subjects such as Wahhabism, Sufism and translated one of the works of Sayyid Qutb from Arabic into his native language, Malayalam. He has also lectured at conferences, seminars as an expert on Islamic thought, Islamic law and Islam in general.\n\nThe Ministers acknowledged that Sheikh Kutty’s lifelong study of Islam and his recognized expertise in his community render him an expert in Islam. I had no difficulty in accepting his opinion evidence on the Islamic concept of jihad and the meaning of other Islamic terms.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-137", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 326", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Sheikh Kutty explained his understanding of several terms which frequently arose in the evidence: Dar ul-Islam vs. Dar ul-Harb: realm of Islam vs. the realm of war. The place is said to be Dar ul-Islam where there is no war and everybody is free to practice their religion. When Muslims are not free to practice their religion, that is said to be the realm of war and persecution. Sheikh Kutty explained that this division of the world is viewed by modern scholars as irrelevant as everyone in democratic countries is free to practise their religion. Hafiz: one who has memorized the Koran. Memorization and recital of the Koran is valued as one of the most effective means of transmitting the Divine Word in Islam. Harith/hareth: derived from a hadith “truest name is al hareth”; someone who strives and earns. Considered a very good kunya for someone who is religious. Hijra: original concept is of immigrating to another country as a place of refuge. Kunya/Kunyah (pl.): a common term of endearment and respect for males in Arab communities. It is not a name but something one is called. Ribat: root is the Arabic word to tie, meaning to bind yourself together in solidarity. Muslims practice spiritual ribat – worshiping and meditating to God. By extension, it is used in the sense of guarding the frontier of Islamic territory where one might be called upon to engage in battle. Defending Islamic territory is considered fard al-kifayah, a sacred and collective duty. Ribat is a valid and important contribution where there is a legitimate jihad. Shahid/Shaheed: literally one who testifies. The Islamic concept is that of standing as a witness of truth and justice. One who gives his life for the truth is called Shahid.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-138", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 326–327", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The term has been distorted in its modern application to suicide bombers as taking one’s own life is a cardinal sin of Islam. Takfir: describing someone as an apostate; a Kaffir. The Sunni mainstream does not characterize anyone who prays to Mecca as apostate. But the term was employed by Sayid Qutb, a “born again Muslim” and not a scholar, to refer to anyone who did not rule according to Sharia law. Taqiyah: This is a Shia term, not Sunni. During a time of oppression by majority Sunni’s, a Shi’ite may disguise himself as a Sunni. Dr. Rudner had discussed this in the context of the Al Qaeda approved practice of deception before the authorities.\n\nThe witness explained that there have been more than 13 schools of jurisprudence in Sunni Islam. Some became predominant in different regions. To-day there are four main schools. Hanafism was the official school of the Ottoman Empire and the dominant tradition in North India, Pakistan and Afghanistan. In South India, the dominant school is the Shafi’i. Saudi Arabia follows the literalist tradition of the Hanbalis. Malakis are mainly in North Africa including Egypt. Wahhab was a Hanbali who struggled against some of the practices that were deemed pagan or foreign such as Sufi mysticism. Salafists are traditionalists who wish to go directly back to the original sources; the early supporters of the Prophet. To-day most Salafis would say that they do not belong to any of the schools.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-139", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 328–330", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In Sheikh Kutty’s view, the tragedy of Islam to-day is that there are engineers such as Bin Laden who claim to be scholars and are giving rulings based on their interpretation of the original Koran. The study of the original Koran requires an understanding of classical Arabic that takes years to acquire. The people most likely to adopt the Bin Laden philosophy are those who are not well brought up in Islam; those who are upset by other things and seek a religious justification for what they want to do; not those who are well educated in the faith. Similarly, the Taliban were half-learned scholars; a danger to faith as much as half-learned doctors are a danger to health.\n\nSheikh Kutty testified that the word “jihad” stems from a root which means to exert oneself to the utmost. It is used in the Koran primarily to refer to exerting oneself for the sake of God to realize his will. In the widest sense, it includes all forms of struggle to make truth and justice prevail. The main or supreme form of jihad (often referred to as al-jihad al-akbar) is spiritual or internal warfare (mujahada) to master one’s self. He acknowledged that the Koran does call for making jihad against the kaffirs or infidels but in the spiritual sense, not military.\n\nEach Muslim is bound by the five Pillars of Islam: profession of faith (shahadah), prayer five times daily (salat), almsgiving (zakat), fasting during Ramadan (sawm), and pilgrimage to Mecca once in a lifetime (hajj). Jihad is not one of the five pillars, but spiritual jihad engages all Muslims every day.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-140", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 331–333", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Another aspect of jihad is a collective military duty. The verses that sanctioned the use of force in jihad were revealed in the aftermath of the oppression of the Prophet and his followers. According to Sheikh Kutty, military jihad is only allowed in the following cases: a. To defend one’s right to practice one’s faith; b. To defend oneself against aggression; and c. To aid those who suffer persecution and aggression.\n\nIn Sheikh Kutty’s view, the only legitimate jihad is defensive jihad. Muslims may not engage in military or offensive jihad against those who allow them to live in peace. They may only fight combatants and can not attack non-combatants such as women and children. For a jihad to be legitimate, it must be declared by a legitimate authority. Many Muslim scholars said that fighting the Soviets and liberating Afghanistan from the occupation was a valid jihad. This was supported by Saudi Arabia. Muslim scholars have also agreed that what happened in Tajikistan and Chechnya called for a legitimate jihad.\n\nActs of terrorism such as those committed by Al Qaeda do not fall under the category of legitimate military jihad sanctioned by the Islamic faith. In Sheikh Kutty’s view they are in clear violation of a number of established principles laid out in the Koran including that one cannot take one’s own life such as in the course of a suicide bombing.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-141", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 334–336", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Sheikh Kutty disagrees with Dr. Rudner’s view of Islam requiring either conversion or death. He says that Islam recognizes the rights of religious minorities to autonomy. One can’t be forced to convert. The result would be null and void because of the notion that there must be no compulsion in religion. He says that Koranic verses have been taken out of context for political reasons. The references relied upon are those which refer to attempts by pagan tribes to defeat the Prophet and his supporters. The Koran sanctioned attacks on them. The witness acknowledged that there have been historical instances of forced conversion; in India, for example, during the Mughal Empire.\n\nOn cross-examination, Sheikh Kutty disagreed with Azzam’s description of jihad, in particular that it referred only to combat with weapons (Ex. A-3, A-31). He disagreed with the proposition that Islam was spread only from the battlefield and described how it was propagated in his region of South India by wandering Sufi mystics. He discussed how some mixed cultural practices with Islamic religious obligations. He agreed that US foreign policy is not a justification for murder in Islam and neither is the presence of US soldiers in Saudi Arabia so long as they are not desecrating the holy places. Dr. Lisa Given\n\nDr. Given is an Associate Professor in the School of Library and Information Studies, Faculty of Education, at the University of Alberta. In 2007 she became the director of the International Institute for Qualitative Methodology at the University of Alberta. She holds a Ph.D. in Library and Information Science.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-142", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 337–339", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Given was tendered as an expert in research methodology in determining the reliability of documentation. She was asked by counsel for the Respondent to review and comment on the reliability of the sources cited in the Summary of the Security Intelligence Report prepared by CSIS.\n\nDr. Given currently teaches graduate level courses in the areas of research methods and information literacy. She trains students in effective scholarship practices, including the critical assessment of information resources. Dr. Given has testified as an expert witness in information behaviour in two previous Federal Court cases, including one her affidavit evidence was accepted by this Court.\n\nThe Ministers object to Dr. Given’s opinion evidence on the ground that it trenched on the court’s function of assessing the reliability and weight of the documentary evidence. They contend that her opinion is circumscribed by her lack of expertise in the subject matter at issue in this case. In that regard, they submit, her opinion evidence does not meet the necessity criterion as she is not better placed than the Court to determine the reliability of a newspaper article or Internet report. They accept that she may and did offer fact evidence in relation to what she found when she went to Internet websites and described the content of the documents in the references indices.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-143", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 340–341", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "I found Dr. Given’s evidence to be helpful, particularly her testimony about the five core criteria that are used in library and information science to determine the reliability of information: authority, accuracy, objectivity, currency and coverage. These criteria are simply a framework which anyone can use to assess the credibility and reliability of a document. They invite questions such as who has written the document, what are their credentials, what is their stance on the issues, do they have a bias or a particular agenda? What is the authority of those who are cited or quoted in the document itself? Can the factual content of the information be verified? Is the information current? Has new information come to light that may call into question an earlier report. Is the information complete or has an excerpt been pulled out of the context of the rest of the document?\n\nDr. Given’s evidence assisted the Court in considering the reliability of the information in the reference sources. She illustrated how those criteria could be applied to documents that CSIS had relied upon in preparing the SIR. In doing so, Dr. Given gave her opinion that the information in certain documents did not satisfy the criteria. She did not say that the content of the information was incorrect as she is not an expert in the subject matter, but that it would be difficult for an impartial reader to assess reliability when insufficient information was provided.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-144", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 342–344", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "For example, on-line organizations such as the “IntellCenter” provide little information about their methods or the people behind them. There is a circular citation pattern in which organizations such as this cite each other’s reports. This may lead the reader to believe that their sources are authoritative or that they are reporting more information than is actually the case. The firm Global Security is said to have been founded by John Pike in 2007 but no details are provided about his educational background and credentials. Who funds the organization?\n\nThe document at tab 85 is said to have been last modified 27-04-2005 but what information was modified? There is no authority to the information from her perspective. The source of the document at tab 8, the ERRI website, is replete with hyperbolic language. There is no information about the authors and the vast majority of the links at its web site are dead and not being kept current. This is not a credible source.\n\nIn other documents, questions of possible bias may be raised such as with Bodansky’s book on the Chechen Jihad (tab 136), given his alleged links with Russian intelligence. No citations are provided for the sources of Bodansky’s information. In other instances, the document contains a bald statement such as that found at tab 90 with no attribution: “Khattab is thought to have become involved with Bin Laden…”. The source is an article from The Express newspaper in the UK reporting on a football coach’s despair that his team has to play in war torn Dagestan.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-145", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 345–347", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "On cross-examination, Dr. Given acknowledged that the anonymity of a confidential source does not make the information inaccurate and that on-line sources such as Wikipedia can contain accurate information. With some on-line sources, such as the Jane’s publications, her review was limited as she did not have a subscription. However, she did not accept that the subscriber content would necessarily provide more detail of the sources. She agreed that she could have researched the authors of some of the sources on-line and found more information about them.\n\nA document at tab 25 posted on July 6, 2004 in Jane’s Intelligence Review is said to be authored by a Dr. Christopher Jasparro of the “Asia Pacific Center for Security Studies” which appears to be linked with the US government. One would have to know who Dr. Jasparro was to give this report credit. Counsel for the Ministers produced a syllabus for the US Naval War College listing him as an instructor in security matters. Dr. Jasparro attributes the Madrid bombings to Al Qaeda. A report at tab 27 from Madrid dated March 9, 2006 says that the results of a two year investigation concluded that it was the responsibility of home-grown radicals.\n\nThe point of this testimony, as Dr. Givens reiterated on re-direct examination, is that no one could assess the reliability of the Jasparro document from its presentation without more information. In many instances, the documents relied upon in support of statements in the public summary contain no detail about the source of the information.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-146", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 348–350", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Given’s evidence drew my attention to questions about the sources that were not apparent on the face of the documents. Ultimately, it is for the Court to determine whether the information provided by the Ministers is “reliable and appropriate” in the meaning of the statute. Dr. Brian Williams\n\nProfessor Williams is Associate Professor of Islamic History at the University of Massachusetts at Dartmouth. He teaches Middle Eastern and Central Asian history and the focus of his research is on Central Asia, Afghanistan and Chechnya. He previously lectured at the University of London School of Oriental and African Studies in Middle Eastern-Balkan History and at the University of Wisconsin in Islamic Central Asian and Medieval Middle Eastern History.\n\nProfessor Williams has a Ph.D. in Middle Eastern and Islamic Central Asian History and two Masters’ degrees, one in Russian and East European History and another in Ottoman Language and Turkic History. Professor Williams has published two books and has contributed to over 60 chapters and journal articles on Al Qaeda and jihadism in Afghanistan, Central Asia and Chechnya. He has also had his work reported in Time Magazine and the New York Times.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-147", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 351–352", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In addition to his academic background, Professor Williams has had hands-on experience in areas relevant to this case. He carried out field work in Afghanistan for the Central Intelligence Agency’s Counter-Terrorism Center in 2007 tracking suicide bombers and has served as an advisor for the U.S. Army’s Special Operations Command and Joint Information Operations Warfare Command. In 2008 he wrote the field manual for the U.S. military on Afghanistan and testified as an expert witness in the trial of Osama Bin Laden’s driver, Salim Hamdan, the first trial held at Guantanamo Bay. During his travels, Professor Williams had an opportunity to interview Taliban prisoners of war and Al-Qaeda linked figures such as Abu Hamza Al Masri.\n\nProfessor Williams has lived in a number of different countries, including Turkey, Kazakhstan, Russia in the former Soviet Union and the Ukraine. He has also traveled to various zones of jihad and terrorism in Central Asia and the Middle East from the Caucasus and Kosovo to Afghanistan and Kashmir. He speaks Turkish, Turkmen and Russian. He does work for the US government including training special operations forces and marines and had a top secret clearance. In addition to his field work for the CIA, he was returning to Afghanistan this year for the US Army. He has also worked for Scotland Yard and Afghan intelligence. In short, Professor Williams’ experience is both academic and practical.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-148", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 353–355", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Williams was tendered as an expert on the roles and relationships of the warlords, foreign jihadis, Chechens and terrorists who were operating in the region during the relevant timeframe. The Ministers accepted that he was qualified to give opinion evidence in this area due to his research and writing on the links between the Afghan Arabs in the Chechen conflict in general, and the prominent role that Khattab and his Arab followers played in that conflict.\n\nThe Ministers contend, however, that Dr. Williams’ report descends into advocacy and is not in the proper format for an expert opinion. They contend that the report argues the facts and advocates the respondent’s position, “similar to what one would expect from counsel’s closing argument” citing Dulong v. Merrill Lynch Canada Inc., (2006), 80 O.R. (3d) 378 at para. 30. They submit that in his testimony, Dr. Williams proved to be much more balanced and suggest that he may have initially misapprehended the nature of the allegations against the respondent. I don’t accept that conjecture. His knowledge of the Ministers’ case against Hassan Almrei stems directly from the public summary of the SIR.\n\nDr. Williams’ report is highly critical of the content of the public summary. It lacks the veiled references that one might normally expect to see in an expert report. But that does not reflect advocacy or an abdication of the neutrality that the courts demand from experts. Rather, it reflects an academic expert’s impatience with what he considered to be shoddy work. As Dr. Williams put it, he would have given the summary a failing grade had it been submitted by one of his students.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-149", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 356–357", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Ministers had some success in eliciting testimony more favourable to their case during Dr. Williams’ cross-examination. In fact, he acknowledged the validity and strength of some of the documentary evidence assembled by the Ministers’ legal team and the depth of the preparation by counsel. This reinforced my view of the objectivity of his opinion evidence. Nonetheless, Dr. Williams never abandoned the view he expressed in his report about the quality of the CSIS public summary.\n\nI found Dr. Williams’ evidence to be very helpful in understanding the history of events in Afghanistan, Tajikistan and Chechnya relevant to these proceedings and the relationships between key actors in those events. His perspective on which authors could be considered authoritative was also very useful as he knows many of them personally, knows their work and how they came by the information they have published.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-150", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 358–360", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Williams has turned down requests to testify in 14 Al Qaeda related cases. He was sceptical about this one also but agreed to read the materials. As he did, he says, he had a growing concern that the government story did not fit what he knew about the history of the region. He found glaring historical errors and misstatements. Williams says he would have failed a student who relied on flimsy internet sources such as those in the public summary. In his view, the document was prepared under pressure and with orders to find linkages between Almrei and Al Qaeda. As a result, the analysts used “wiki-intel” to hastily paste together reckless claims. Williams claims he had never seen such a poorly prepared analysis of this nature. In reading the summary he hadn’t found the indicators or “red lights” that would have pointed to Almrei having an Al Qaeda involvement such as presence at Al Qaeda camps in the Pashtun belt in the mid-1990s after Bin Laden assumed control of them.\n\nDr. Williams noted that very few people were studying Bin Laden and the Taliban prior to 9/11. Post 9/11, he says, many authors with no direct experience in the region “jumped on the bandwagon” and sensationalized Bin Laden and Al Qaeda.\n\nWilliams had lived in Tashkent while he was doing research for his PhD prior to 1999. The Taliban were then ethnically cleansing non-Pashtun’s, such as the Uzbeks in the north. He interviewed the refugees. In 2003 he went to Kabul and lived with the Uzbek leader, General Abdul Rashid Dostum. He travelled north through the Hindu Kush, carrying an AK-47 for protection, and interviewed Taliban prisoners of war. In 2005 he spent time with the Tajiks and lived in Kunduz, the area of the Taliban’s last stand in 2001.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-151", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 361–362", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Williams provided an overview of the development of Al Qaeda and its revival of the ancient concept of jihad that had died out in the modern era with nationalism, pan-Arabism, Baathism and other secular political movements. They did this with the CIA’s support to fight the Soviets and attracted Arab volunteers. But the fighting was done mainly by the Afghans. It was a “Jihad tour” for the Arabs. The “Gucci Jihadis” came with lots of money for the adventure and to go home and glory in it. They weren’t well trained, didn’t fight well and were more of a burden for the Afghans. None of them were a decisive factor in the war against the Soviets. Most went home but some, like Khattab, stayed on to defend Islam in other territories.\n\nThe larger jihad movement is part of Williams’ research and teaching interests. After 9/11, he says, it was conflated with Al Qaeda by many. In his view, there is a difference between those who subscribe to Al Qaeda and those who are part of the global jihad. Al Qaeda was formed to overturn regimes in the Middle East that Bin Laden and those who followed him considered apostate such as Saudi Arabia.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-152", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 363–364", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In contrast, Abdullah Azzam was a comparative moderate who wanted to defend oppressed Muslims and was not a supporter of terrorism. Abdullah Azzam was sponsored by the CIA to tour the US and collect funds for the jihad in Afghanistan. He was no Bin Laden and was ultimately murdered by the Egyptians in Al Qaeda. Similarly, Khattab took funds from the Saudi Royal Family through their charities, such as the Al Haramain foundation, at a time when Bin Laden was actively opposing them. They considered it their religious duty to defend endangered Muslim communities. Many members of the larger jihad movement were shocked and appalled by 9/11 and considered Bin Laden to be a disgrace for violating the Koran’s prescription on killing innocents.\n\nSayyaf was the Saudi’s man in Afghanistan and was funded by them and the CIA through Pakistan’s ISI. He spoke fluent Arabic and controlled a Pashtun fighting force. A pragmatist willing to work with moderates He fought for years alongside Massoud in the Northern Alliance and not with the hard-core fundamentalist leaders such as Hekmatyar who allied themselves with the Taliban. Williams agrees that Sayyaf did terrible things such as the campaigns against the Hazzara in Kabul and has blood on his hands stemming from the civil war period.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-153", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 365–366", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The claim in the public summary that Sayyaf was close to Bin Laden is not supported by the facts, in Williams view. The two men may have met and been together in the mujahidin war against the Soviets; but they clearly fought against each other later. Few Afghans were members of Al Qaeda; Sayyaf was part of the Northern Alliance that fought the Taliban and Al Qaeda, the majority of whom are Egyptians. Al Qaeda did not allow Afghans into their inner circles. Al Qaeda had pushed Sayyaf out of some of his camps. By the mid-1990’s they had developed real fighting skills and formed an effective unit to support the Taliban. The “055” Brigade was highly trained and well equipped in contrast to the amateurs who had previously come as would be mujahidin. The 055 Brigade fought the northern alliance including Sayyaf’s forces, until the US invasion in 2001. According to Williams, the authors of the public summary either didn’t know the history of this period or deliberately ignored it. The summary was not written by experts. He suspects that the authors went to Google with about two weeks notice and cobbled the material together.\n\nWilliams doesn’t accept the claim put forward by the Associated Press reporter, Kathy Gannon, in her book “I is for Infidel” of a meeting in which Sayyaf agreed to take part in the global jihad with Bin Laden and others. He knows and respects Ms Gannon but doesn’t consider the story plausible. He says it is similar to the conspiracy theories of Josef Bodansky. Sayyaf may have met Bin Laden upon the latter’s return to Afghanistan in 1996. But within a year he was fighting Al Qaeda and the Taliban.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-154", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 367–369", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Khattab (a kunya from the name of the 4th Caliph after the Prophet) was not part of Al Qaeda according to Williams. He says that position has been advanced by the Russian propagandist Joseph Bodansky. Bodansky’s book gives no sources and he has not been to Chechnya. Bodansky makes wild claims about events that are not plausible. His work is considered fiction by scholars. Bona fide intelligence services would not rely upon it.\n\nThe Saudi’s provided support to the Chechens Muslims and hundreds of Saudi citizens volunteered to go there to fight the Russians. Khattab was admired and viewed as a hero in Saudi Arabia and mourned when he died. This contrasts with Bin Laden who is despised. US didn’t have a stake in the Chechen jihad. Nor did they oppose it. The CIA did not define Khattab as a threat. Chechnya was not an autonomous republic and was seen by the Russians as part of their territory. They bitterly complained about the Saudi involvement.\n\nKhattab mocked the Russians by inviting captured soldiers’ mothers to come and get their boys. Williams does not believe that Khattab was involved in the Moscow bombings. It is counterintuitive, as the Chechens had already won their independence. He thinks that it was the work of Russian FSB agents seeking to procure a casus belli. Khattab didn’t approve of terrorism. He called those who practised it cowards.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-155", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 370–372", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "“My Jihad” by Alkai Collins, an American who fought with Khattab says he relished frontal combat. He was a warrior; idolized for his style of fighting. The Chechen’s saw him as the sole source of help in their hour of need. But not everyone there loved him. He went against the Chechen government will by launching an incursion into Dagestan to defend three villages from a Russian onslaught. That gave the Russians a pretext for launching a full scale invasion of Chechnya and launched the second Chechnyan war.\n\nWilliams acknowledged that the material (exhibit A-1) produced for the hearing by government counsel is more professional and scholarly than what he calls the Wikipedia research in the summary. But apart from Bodansky's claims, there is nothing definitive about Khattab and Al Qaeda in the literature. Bin Laden's main target was Saudi Arabia. But the Saudis supported Khattab through the charities. Some of the Arabs who went to Chechnya broke from Khattab and joined Al Qaeda.\n\nDr. Williams discussed the civil war that developed in Tajikistan, after the fall of the Soviet Union. Members of the old communist guard, the “Red Khans”, continued to rule with an iron fist in a secular government. There was no democratic development as in the other former Soviet Republics. Democrats and Islamists and southern Tajiks launched a civil war. The Islamists called for support from Afghan Arabs saying the Soviets are still here. This was a continuation of the anti-Soviet, anti-communist jihad.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-156", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 373–374", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In Afghanistan, the Arab mujahidin joined with those warlords who were trying to defeat the Communist government in Kabul. When the Najibullah government was overthrown, the war lords fought a civil war in Kabul and effectively destroyed the city. They all had blood on their hands for their actions during this period. Sayyaf was allied with Masood. Many of the Arabs were sickened by the internecine violence and left. Bin Laden went to Saudi Arabia and then to Sudan. Khattab went to Tajikistan. Others went to Kashmir to fight the Indians. The majority went home to brag about their exploits.\n\nThe “055 Brigade” was annihilated during the invasion in 2001. The survivors melted across the border into the Federally Administered Tribal Areas of Pakistan. To-day Al Qaeda Central is a more furtive, limited organization, hiding in the mountains. It lacks the capacity to launch attacks in Williams’ view. More dangerous to-day is “wannabe Al Qaeda’ism”. But there is a lack of evidence that they are being directed from Al Qaeda Central. Al Qaeda has few members remaining; less than 500. They are not splattered across the globe as in the quicksilver analogy posited by Dr. Rudner. There is no evidence of links to the disparate groups claiming to be modeled on Al Qaeda.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-157", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 375–377", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Williams noted that there have been books written from actual experience in the mujahidin camps of the 80’s and 90s. Afghan Arabs went from camp to camp looking for one that suited them. The camps were in very primitive mud house compounds and the regime was very informal. There was a lot of shooting off of rifles and praying. The camps were full of dilettantes, adventurers, riff-raff. It was very ad hoc but incredibly weaponized. AK-47’s were a form of currency. John Walker Lindh, an American, walked into a camp and was given one. In contrast, Al Qaeda camps were very serious about security.\n\nThe witness described how the Beit-al-Ansar guest house in Peshawar was initially run by Sayyaf. It closed down in 1992 and was reopened in the late 1990s and run by Al Qaeda. If Almrei had been there in 1997 or later, it would be much more likely that he was Al Qaeda.\n\nThe guest houses were not training facilities. They were set up in residential areas and were more like a hotel. The tribal areas of Pakistan and Afghanistan do not have hotel chains. A series of guest houses facilitated the movement of men through the region. Williams had stayed in the one set up by Bin Laden in Kabul and in another in Bamiya. They were very primitive with no lights and no showers. Animals were kept downstairs. These were pre-existing guest houses that Bin Laden simply bought. He had bought a great deal of property in Afghanistan after 1996.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-158", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 378–380", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "During a break in the testimony, Dr. Williams and Almrei spoke briefly about this. Almrei apparently told him that he had stayed at Beit-al-Ansar. This was brought to my attention following the break by counsel for the Ministers and I cautioned the witness and Mr. Almrei not to speak with each other again. The matter was not pursued further and I do not believe that it influenced the testimony of either Dr. Williams or Mr. Almrei.\n\nWilliams found it impressive that the respondent can recite the Koran. It suggests he was raised in a good family. Al Qaeda members tend to be “born again Muslims”, more convinced and certain in their beliefs. They tend to be people who felt alienated from the society around them and began going to Mosques in their 20’s. Someone who had a good normal Islamic upbringing is unlikely to do this. This applies as well to the wannabe groups. They are concerned about Israel, angered at Saudis and learn to reject their parents’ guidance.\n\nOn cross-examination, Williams acknowledged that he had never been to Chechnya and doesn’t see himself as an expert on Chechnya. But he sees himself as qualified to give opinion evidence on the overlap between the jihadists who travelled from Afghanistan to Chechnya. He believes that someone could not be simultaneously a member of Al Qaeda and Khataab’s organization but knows of 5 people who left Khattab and joined Al Qaeda. He accepts that people who were in Sayyaf’s camps could have later joined Al Qaeda. To Williams, the facts that Almrei attended Sayyaf’s camp, was a follower of Khattab and did not go to Sudan are among the strongest indicators that he was not a member of Al Qaeda.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-159", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 381–383", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Williams agreed that Sayyaf engages in bombastic anti-western rhetoric. He says that all of the Afghan leaders ranted and raved about western intervention and used the same language. He was taken to a series of articles and book chapters which tended to suggest that Sayyaf and Bin Laden were close during the anti-Soviet jihad and the subsequent civil war. Bin Laden had attempted to achieve a reconciliation between the Pashtun warlord Hekmatyar (now allied with the Taliban) and the Tajik leader Massood. Massood and Dostum seized control of Kabul after the fall of Najibullah and Massood became defence minister. Williams sees Bin Laden’s efforts at this time as an exercise in pragmatism.\n\nThere were running battles in the streets of Kabul in 1993 between Hekmatyar’s, Sayyaf’s, Dostum’s and Massood’s forces in the midst of the civilians. Atrocities were committed. None of them were guiltless. Sayyaf is likely guilty of war crimes for the actions of his militia against the minority Shi’ite Hazzara community.\n\nExhibit A-28 is an excerpt from “Architect of Global Jihad” by Brynjar Lia, a book on the life of Abu Mus’ab al-Suri, jihadi thinker and Al Qaeda strategist. At page 82 is a reference to training in the Sada camp by al-Suri, and Khalid Sheikh Mohammed. The author states that the camp had been established with the help of Azzam and Sayyaf but was only used by the nascent Al Qaeda to a limited extent for “limited duration recruits”. In Williams view, these people were not Al Qaeda at the time. The training of the Arabs was very perfunctual. It was considered more of a burden by the hardened Afghan veterans. Some of the Arabs came more as tourists during spring break or summer vacation; jihad was cool for young Arab males.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-160", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 384–387", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "According to the author Jason Burke (Ex. A-2, tab 5), Ramzi Yusef, nephew of KSM, spent some time as a tutor in Sayyaf’s Khaldan camp where he met Ahmed Ajaj, his accomplice in the 1993 WTC bombing. The work includes references to Sayyaf’s “University” in Pabbi, near Peshawar, and alleged involvement in an attempt to kill Benazir Bhutto. Sayyaf’s compound in Pabbi was searched by the Pakistani authorities following the 1995 attempt on President Mubarak in Ethiopia. Williams says this was not an Al Qaeda action.\n\nWilliams agrees that unsavoury people who passed through Sayyaf camps in the 1990’s were later engaged in terrorism but considers that Al Qaeda was at that time a separate operation. He agrees that an association with Sayyaf does not preclude a linkage with terrorism but holds to the view that being in Sayyaf’s camps while Bin Laden was in Sudan is a contra-indication.\n\nUS Department of State reports on Afghanistan for 1994 and 1995 were entered in evidence (tabs 11 and 12 of Ex. A-2). Williams did not doubt the statements in these reports that the Afghan camps, including those run by Sayyaf continue to harbour and train militants and potential terrorists.\n\nA compilation of Dr. Williams’ publications was entered as Exhibit A-30 and he was cross-examined closely on prior statements he had made in his writings about events and personages in the region. In one assessment of the role of foreign fighters in the Chechen insurgency, for example, he had written that the Arabs who went there perceived themselves as holy warriors and were not engaged in a sectarian or nationalist struggle. He describes them as having “radicalized’ members of the Chechen armed forces. He didn’t see this as having had a good effect on Chechnya.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-161", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 388–390", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Williams says he believes that Khattab’s world view was transnational i.e., not bound by borders, as evidenced by his invasion of Dagestan. The President of Chechnya was opposed to this because of the provocation it would give the Russians. Khattab saw this as defensive jihad. But it is more a form of offensive jihad because it was an external invasion. Williams believes it was a clever ploy on the part of the Russians for having lured Khattab into invading; they did so by levelling the villages close to his local family.\n\nKhattab’s tactics were guerrilla operations. Williams does not agree that Khattab engaged in terrorist acts during that period. He concedes the point that Khattab’s activities would have been construed as terrorist by the Russians. But only the Russians, themselves guilty of state sponsored terrorism in Chechnya, call Khattab a terrorist. The Chechen leader Basayef had engaged in terrorism and there is a blurring of the lines between the two.\n\nWilliams testified that he looked long and hard for links to establish operational ties between Khattab and Al Qaeda. He says that foot soldiers who tired of frontal combat and wanted something more glorious and dynamic and those who wanted to wage war against America had to join a different organization. Khattab had a different enemy – Russia. Khattab’s website was focused on the military activity against Russia. In contrast, Al Qaeda’s website glorified the murder of Americans and Jews. Williams disputes reports that Khattab and Bin Laden fought together. He says they may have been in a major battle against the Russians at Jalalabad with all of the other Afghan Arabs. Khattab wasn’t with Bin Laden at Jagi which was the only battle that Bin Laden led.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-162", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 391–392", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Bin Laden financed the jihad in Chechnya but didn’t personally join it. His number one concern was Saudi Arabia and the US. The US because it supports the Saudi regime. Khattab was supported by the Saudi dynasty. Members of the Royal Family contributed money to al Haramain. Khattab set up an office with al Haramain to equip his forces. Williams agrees that some al Haramain offices also supported Al Qaeda. But the Saudi’s arrested one of their own people for this. The Chief Mufti of Saudi Arabia spoke out in favour of the Chechnyan jihad. The Royal Family mourned his death. They revile Bin Laden. It is permissible to admire Khattab in Saudi Arabia but Bin Laden is considered a threat to the state.\n\nWilliams agrees that Khattab shared Bin Laden’s view that infidels should be driven out of Muslim lands and supported the attacks on US military personnel in Saudi Arabia. He did not condemn Bin Laden in quotes attributed to him in the late 1990s (e.g., Ex.A-31). Khattab would have subscribed to the conspiracy theories about US intentions that were then prevalent in the Muslim world. Williams does not think that Khattab would have condemned another jihadi but condemned terrorism against civilians. He probably agreed with much of what Bin Laden was doing or may have believed that his Saudi funding would have dried up if he had condemned him at that time. But Khattab condemned terrorism against civilians and the Americans never saw Khattab as a threat.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-163", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 393–394", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Williams held to his view on cross-examination that there were two streams of jihad. One was led by Abdullah Azzam who held to a clear line against terrorism and killing fellow Muslims. He sought the creation of a rapid reaction team, the Azzam Brigades, to attack non-Muslims fighting Muslims. The other stream was led by the Egyptians, notably al Zawahir who wanted to attack Muslims and use terror as a tactic. Azzam was not close to the Egyptian extremists. He had taught at al Azhar University in Cairo and could not have held that position if he had been viewed as a threat by the Egyptian Government. He worked with that government to obtain weapons for the jihad in Afghanistan. Azzam did not want fitna or dissension within the Islamic community, contrary to Bin Laden.\n\nOn re-direct, Williams clarified that Sayyaf’s training camps south of Jalalabad were taken over by Al Qaeda about 1998. Sayyaf continued to control territory north of that city. During the anti-Soviet jihad, all of the Afghan Arabs would have gone through either Hekmatyar’s camps or Sayyaf’s camps. Of the tens of thousands, almost all went back home and are living normal lives. Only a small number went on to become Al Qaeda. Similarly, some of those who went to the Chechen camps went on to join Al Qaeda. He has identified about 10 who did so and is surprised there is not more. He suspects it is because Khattab trained his warriors not to engage in terrorism. ANALYSIS Are the factual allegations against Almrei supported by the information and other evidence?", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-164", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 395–396", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In their closing submissions, the Ministers argue that the foundation for findings that Almrei is inadmissible to Canada on national security grounds and that the certificate is reasonable rests on the following alleged facts: Almrei’s participation in jihad; his connections to others affiliated with Osama Bin Laden and his network, and with whom, they contend, he shares an extremist ideology; and his participation in an international document procurement network.\n\nThe Ministers submit that, prior to arriving in Canada, Almrei engaged in terrorism by supporting terrorist activity and concealed from Canadian authorities the fact that he had supported Islamic extremists and had traveled to Pakistan, Afghanistan and Tajikistan to do so. They claim that he supported terrorist activity as a member of the terrorist group known as the Bin Laden network, which includes Al Qaeda. His international contacts and fraudulent document procurement and willingness to assist with such document procurement, including for an individual associated with the Bin Laden network, make him a danger to the security of Canada in the Ministers' opinion.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-165", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 397–399", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The specific facts relied upon by the Ministers in support of these submissions include Almrei's belief in jihad, his trips to Afghanistan and Tajikistan to engage in jihad and his willingness to fight and, if necessary, to die to defend Muslims. His association with Sayyaf and Khattab is said to be an indication that he shares a positive view of Bin Laden and a belief in militant Salafism. Almrei’s admission that he met Nabil Almarabh in Kunduz, Afghanistan, a suspected terrorist, and later provided him with a false Canadian passport, gives rise, in the Ministers’ submission, to a reasonable belief that Almrei could provide material support to a terrorist, in Canada or elsewhere.\n\nTo organize my comments and findings about the information and evidence I will follow the arrangement of the Amended Public Summary of the SIR filed on March 24, 2009. The closed information and evidence has been taken into consideration. Osama Bin Laden, Al Qaeda and the “Bin Laden Network”\n\nMuch of the information and other evidence presented to the Court concerned Osama Bin Laden, Al Qaeda and the “Bin Laden Network”. This was offered in support of the allegation that the respondent is a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism, as set out in s.34 of the Act. The Amended Public Summary devotes 36 paragraphs and 83 footnotes to establishing the existence of this organization and its linkage to terrorism.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-166", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 400–401", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The status of Al Qaeda as an organization within the meaning of paragraph 34 (1) (f) of the Act was not in any doubt in these proceedings. However, there is no evidence that Almrei is or ever has been a member of Al Qaeda. Thus, the Ministers' case under that ground of inadmissibility rests on the proposition that Almrei is a member of the more amorphous notion of a “network” inspired and led by Bin Laden that engages in terrorism. The respondent disputes that such an organization exists or that those who are said to be members can be held accountable for the actions of other individuals operating independently.\n\nThe concept of a “network” does not easily satisfy criteria such as those that Justice O'Reilly identified in Thanaratnam, above, at paragraph 31: “identity, leadership, a loose hierarchy and a basic organizational structure”. These factors undoubtedly apply to Al Qaeda itself but are less readily apparent the farther removed from Al Qaeda is the group or individual said to be associated with the network. I note that the \"Bin Laden network\" is not a proscribed entity, unlike Al Qaeda, in the lists of terrorist organizations maintained by Canada, the United Nations or the United States (Reference Index Vol.1, T-12, T-13, T-14).", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-167", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 402–403", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "There is a consensus among the experts that a number of organizations are now affiliated with Al Qaeda and others draw their inspiration from Bin Laden. Mr. Quiggin estimated that there were six affiliated groups and about 23 others who have expressed an ideology sympathetic to that of Al Qaeda. These groups, he says, are focused primarily on local and regional issues. But these groups would themselves qualify under the rubric of organizations that engage in terrorism and membership renders the individual inadmissible. There is no evidence that Almrei is a member of any of the affiliated groups. At best, the Ministers assert that he is part of a loosely connected matrix of jihadi veterans with shared experiences in Afghanistan.\n\nThe home-grown “wannabes” are not recruited, financed or directed by Al Qaeda but have adopted a similar world view. Examples given by the witnesses include those responsible for the Madrid bombings, the \"Operation Crevice\" conspirators in the United Kingdom, Momim Khawaja and the so-called \"Toronto 18\" in Canada. These persons are unquestionably a threat to national security and public safety but they have no direct connection to Al Qaeda and it is doubtful, in my view, that they can be said to be part of the same terrorist organization within the meaning of paragraph 34(1)(f).", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-168", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 404–406", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "As I understand the Ministers' position, anyone who shares the principles of Al Qaeda and is in some way linked to it is a member of the Bin Laden network. Applying the “unrestricted and broad” interpretation approved by the Court of Appeal in Sittampalam, I accept that Al Qaeda and its affiliated groups can be termed an organization within the meaning of paragraph 34(1)(f). This \"Bin Laden network\" may also encompass those groups that are inspired by and willing to take direction from Bin Laden but are not formally affiliated with Al Qaeda: Re Iklef, 2002 FCT 263 at para.54.\n\nIndividuals and groups who have no connection with Al Qaeda cannot be said to be part of the network without some other indicia of membership such as a willingness to follow directions from Bin Laden. It is not enough, in my view, to assert membership in an organization merely on the basis of a shared ideology. That is what I believe the Ministers have been attempting to do in this case. They can’t establish that Almrei is a member of Al Qaeda or an affiliated organization and have attempted to bring him within the scope of this amorphous concept of a network based on his belief and participation in jihad.\n\nAn \"unrestricted and broad\" interpretation of organization does not encompass those who have expressed views that are sympathetic to the ideology of Bin Laden and Al Qaeda and approval of the actions that they have taken. That is far too broad a net to cast and would be incompatible with the freedom of expression guaranteed by our Charter. There has to be something more to demonstrate that a person who has expressed those views has taken steps to associate himself with the network and to act in accordance with its objectives.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-169", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 407–408", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "I don’t doubt, as the Ministers assert, that Al Qaeda remains committed to the use of terrorism to achieve its political goals but it is a matter of controversy between the experts whether Bin Laden retains the “resources and organization to launch a terrorist strike in any country he wishes” as stated in paragraph 9 of the summary. The source given for this proposition is a January 1999 report from a non-authoritative, and now stale, online source. While that may have been true in 1999, it is questionable to-day.\n\nIn a paragraph added to bolster the Ministers' case following Mr. Quiggin's testimony during the detention review hearings it is stated that: Some scholars and academics believe that Al Qaeda is no longer a centrally controlled organization, but recognize that its ideology lives on and that Osama bin Laden remains a powerful figurehead and inspiration for people around the world. Still others believe that Al Qaeda remains a viable entity and may be regrouping in order to spark a new wave of attacks. Yemen has been identified as a possible new home for Al Qaeda, with Saudi and Yemeni militants joining forces. (Paragraph 13)", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-170", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 409–411", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The paragraph alludes to a debate between two renowned American experts on Al Qaeda and terrorism: Prof. Bruce Hoffman and Dr. Marc Sageman. Excerpts of their writings were filed in evidence including articles from the issues of the Foreign Affairs magazine in which they exchanged their views (Ex. A-5). Hoffman is a professor at Georgetown University and the author of Inside Terrorism. Sageman is a former CIA field operative turned psychiatrist and the author of Understanding Terror Networks and a 2008 work entitled Leaderless Jihad. It was the publication of that book which led to the debate with Hoffman. Dr. Williams described Dr. Sageman as the foremost terrorist profiler in the world and a mentor to him in understanding what attracts recruits to extremist organizations.\n\nIn essence, the controversy is over the question of whether the West continues to face a grave threat from Al Qaeda or whether the true menace comes from loose knit cells of Western born Muslims or Muslim immigrants studying and working in the West; what Sageman calls disaffected \"bunches of guys\" who undergo the process of radicalization together.\n\nHoffman maintains that “Al Qaeda Central” or \"core Al Qaeda\" as the witnesses variously described it, continues to be a major threat (Ex. A-5, Hoffman, “The Myth of Grass-Roots Terrorism”, Foreign Affairs, May/June 2008). Sageman, in rejoinder, says he has never denied that Al Qaeda remains a threat but asserts that it has been contained operationally (Foreign Affairs, July/August 2008). High level Al Qaeda personalities have been killed or captured and the remnants have been forced into remote tribal areas of Pakistan adjoining Afghanistan.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-171", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 412–414", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Dr. Williams and Mr. Quiggin share the view that core Al Qaeda has been greatly weakened and no longer has the same power, resources or capacity to train it had when it was a state within a state under the Taliban. Mr. Young and Dr. Rudner believe that Al Qaeda Central retains a significant operational capacity.\n\nWhile the experts may disagree about the nature of the security threat and how it can be managed, it is clear from the evidence that their knowledge and understanding of the risk has evolved considerably since 2001. This was not reflected in the SIR and public summary until after Mr. Quiggin was called as a witness in the detention review proceedings and questioned the Service’s assessment and the sources on which it was based. I found it troubling that the work done to prepare the new SIR in 2008 had not kept pace with developments in the field. And the sources relied upon by the Service were often non-authoritative, misleading or inaccurate.\n\nThe Ministers dismissed this concern as an inevitable consequence of the preparation of a narrative report with supporting documentation of varying degrees of persuasiveness (Ministers' reply submissions para. 16). While it is true that some information will prove to be merely unpersuasive, that does not absolve the Ministers and the Service from fairly presenting the information in their possession.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-172", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 415", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "As discussed above, the summary cites a news article reporting on Lord Carlisle’s Fourth Report to the UK Parliament for the proposition that terror suspects under house arrest have been able to maintain contact with terrorist organizations or individuals and remain determined to mount attacks in the future. The full passage which appears at paragraph 58 of the report reads as follows: My view is that it is only in a few cases that control orders can be justified for more than two years. After that time, at least the immediate utility of even a dedicated terrorist will seriously have been disrupted. The terrorist will know that the authorities will retain an interest in his or her activities and contacts, and will be likely to scrutinize them in the future. For those organizing terrorism, a person who has been subject to a control order for up to two years is an unattractive operator, who may be assumed to have the eyes and ears of the State upon him/her. Nevertheless, the material I have seen justifies the conclusion there are a few controlees who, despite the restrictions placed upon them, manage to maintain some contact with terrorist associates and/or groups, and a determination to become operational in the future. [My emphasis] Fourth Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005; Lord Carlisle of Berriew Q.C. wrote at paragraph 58:", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-173", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 416–418", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The thrust of the actual reference was that most terrorist operatives lose their utility to those who may be interested in making use of their services when they have been under the control of the authorities for an extended period of time. A few will continue to present a risk. This was a finding relevant to this case given the length of Almrei’s detention. It was not fairly presented in the Public Summary.\n\nIn the same paragraph of the Public Summary (14), it is noted that one prominent Al Qaeda militant who had undergone a stringent Saudi rehabilitation program and was released from custody has recently emerged as a key leader of Al Qaeda. This is accurate, but ignores the fact that Saudi Arabia has reported a high degree of success with this program and that other countries had taken steps to emulate it. The purpose of including this statement in the summary, presumably, was to dissuade the Court from taking a chance on Almrei. But the effect was rather to contribute to a finding that the authors had not sought to be fair and balanced.\n\nConsiderable evidence was heard about the nature of the concept of jihad in Islam. The public summary, at paragraph 10, describes this as interpreted in two ways by Muslims: an \"internal\" jihad that everyone engages in to become a better Muslim, and an \"external\" jihad that is necessary to defend Islam when it is under attack. The summary states that Al Qaeda has adopted the latter definition as central to Islam. The weight of the evidence, particularly that of Sheikh Kutty, supports a finding that external jihad can be both offensive and defensive. The type of offensive jihad undertaken by Al Qaeda is not supported by the sacred texts in Islam as interpreted by mainstream scholars.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-174", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 419–420", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "There is no dispute between the parties that the jihad against the Soviets and the Najibullah regime in Afghanistan was supported by the ulemma or community of Islamic scholars that individually and collectively have the authority to issue fatawa. This was also viewed by the US and Middle Eastern governments as a legitimate conflict. The Afghans and the Arabs who supported them were engaged in a defensive jihad. There was also evidence that the conflicts in Tajikistan and Chechnya were approved, if not by the Western governments who had no direct interest in those affairs, at least by the Saudi ulemma and Royal family. Participation or support for those actions, in itself, does not provide reasonable grounds to believe that an individual subscribed to Bin Laden's notion of global jihad or became a member of his network.\n\nThe summary refers to the creation of training camps and an elaborate infrastructure by Bin Laden and cites the warnings he issued to the West (para.11). This is accurate but it ignores the crucial question of timing. This infrastructure and the warnings followed his return to Afghanistan in 1996. Prior to the fall of the Najibullah regime in 1992, Bin Laden was just one of the mujahedin leaders operating camps. His role in the fighting was modest. The bulk of it was done by the Pashtuns, Tajiks and Uzbeks under leaders such as Hekmatyar, Sayyaf, Massoud and Dostum.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-175", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 421–423", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In paragraph 15, the summary notes that \"[b]y 2000, Al Qaeda was estimated to have operated approximately a dozen camps in Afghanistan where as many as 5000 militants may have been trained who, in turn, may have created cells in 50 countries”. The source for this statement is said in the footnote, inaccurately, to be the US State Department. The source is actually a newspaper article that attributes the information to \"a recent Central Intelligence Agency analysis\", which is not in evidence.\n\nApplying Dr. Givens' criteria, it is apparent that this source is not authoritative. But even if it is taken at face value it does not cover the timeframe in this case. After 1996 Bin Laden had effectively declared war on Saudi Arabia and its Western allies, particularly the United States, and was training terrorists to conduct operations abroad. But there is no evidence that Hassan Almrei passed through any of Bin Laden's camps after 1996.\n\nAt best, the evidence indicates that he spent a brief time at the Beit al Ansar guesthouse in Peshawar in 1990 which was established and run by the MAK and may have been funded by Bin Laden at that time. That guesthouse was a way station en route to camps in Afghanistan which were run by Sayyaf and Hekmatyar. Almrei didn't get to one of those camps in 1990 because he fell ill. There is no evidence that he was trained or indoctrinated, as Mr. Young speculated, at that guesthouse. And the witnesses are all agreed that the vast majority of the 35,000 or more Afghan Arabs who passed through the camps went home to get on with their lives after their adventure.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-176", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 424–425", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The supposition that Al Qaeda has created \"cells\" and sent \"sleepers\" abroad is a matter of some controversy. As noted, the sole source for the statement about cells is a newspaper article from January 2001. In paragraph 34 of the summary there is a statement that the Bin Laden network uses \"sleepers\" in its international terrorist operations. These are described as individuals who establish themselves in foreign countries for extended periods of time prior to being given orders to execute an operation. Preceding the activation of the operation, they may live as regular citizens, leading unremarkable lives, and avoiding attention from local authorities. The sole source that is given for these propositions is a 1999 book by Simon Reeve entitled The New Jackals. The implication is that Mr. Almrei was such a sleeper. The closed information indicates that is how he was perceived by CSIS after he came to their attention in 1999. But, as far as I could determine, this was based solely on the inferences drawn from human source information of doubtful reliability.\n\nA great deal of knowledge has been acquired since 2001 about Al Qaeda’s methods of operation. Sageman, for example, states at pages 106 and 162 of Leaderless Jihad that there have been no sleeper cells in the United States with the possible exception of one individual who was arrested in December 2001, which he doubts. Dr. Williams conceded that he has himself used the “sleeper” terminology to describe persons arrested in the US but now considers that Sageman is correct that Al Qaeda sent agents to conduct operations within a planned time-frame, not to integrate into the community and await further instructions at some later date.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-177", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 426–427", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "It is understandable that the Service would have been concerned between 1999 and 2001 that Al Qaeda was employing methods similar to those used by foreign espionage services when little was known about Al Qaeda and the jihadi phenomenon. And I can appreciate that there may be differences of opinion on this among security experts. But the SIR presented in 2008 simply recycled stale information without attempting to offer a more balanced and nuanced view.\n\nMuch of what is contained in the summary relating to Al Qaeda and the Bin Laden network is irrelevant, in my opinion, because it does not point to Almrei. For example, paragraphs 22 and 23 address the use of the Internet for communications between members of Al Qaeda and its followers and their use of extremist websites for recruitment, indoctrination, fund raising and propaganda. This is interesting but there is no evidence that Almrei used his computer for these purposes. It did not materially assist the Court to be told that other terrorist suspects have employed these methods when there was no evidence to suggest that Almrei had done so. Both the RCMP and CSIS had the opportunity to scrutinize the hard drive of his computer and there were other, more intrusive, investigative methods available to them to investigate this possibility.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-178", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 428–429", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "I accept the evidence given by Mr. Young and Dr. Rudner, supported by the reference documents, that terrorists employ false identification papers and have need of sources who can provide reliable travel documents to allow them to cross borders. This evidence was relevant to the question of whether Almrei had the necessary skills to be of use to a terrorist organization. It supported the Service's assessment that his own use of such documents and contacts in Bangkok and Montréal was an important part of his \"pedigree\". Coupled with the fact that he obtained a false passport and supporting documentation for Nabil Almarabh in 2001, this was a key element of the case which justified his arrest and detention following 9/11.\n\nMr. Young fairly conceded that some of Almrei’s contacts would have dried up after more than seven years in detention. He thought that Almrei might still have other undisclosed contacts that would be willing to deal with him. Indeed, that is possible but I am sceptical that someone whose identity is now in security databanks around the world and has testified that he disclosed what he knew in an eight hour interview with the RCMP could reactivate those contacts. Almrei’s Travel and Status in Canada:", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-179", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 430–431", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The information in the SIR and the summary regarding Almrei's travels prior to and in coming to Canada is largely based on his disclosures subsequent to the 2001 certificate determination. This information reinforces the fact that he misled Canadian officials about his background and lied when directly asked about the countries to which he had traveled. As several of my colleagues have previously observed, Almrei was economical with the truth when provided with opportunities to explain where he had been and what he had done. He has disclosed additional information only when it became apparent that the authorities were aware of the facts. His credibility, therefore, is suspect.\n\nThe summary states that Almrei was not forthcoming about the honey business that he engaged in both in Pakistan and Saudi Arabia. He says that he found honey (and oud, an incense) less expensive in Pakistan and imported some to Saudi Arabia where he had a small retail business that he had started in high school. It was reported in the media in 2001 that members of Al Qaeda had used the honey business as a cover for the shipment of explosives and money. The summary notes that there is no evidence that Almrei did in fact use honey to conceal weapons or munitions or in order to raise funds for extremist activities. He may have sent a portion of his proceeds to Khattab in Chechnya. As noted above, counsel for the Ministers took the position during the hearings that they did not expect me to arrive at a conclusion other than that this information was merely speculative.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-180", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 432–434", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "As stated by Mr. Young, Almrei's lies were a major factor in the Service's assessment that he constitutes a threat to national security. But they began to keep an eye on him in 1999 largely because of what they were told by a human source about Almrei’s background and connections. I deal with that source’s credibility in my closed reasons but the gist of what he told the Service in 1999 was at least partially corroborated by later information they received including Almrei's own disclosures.\n\nOver the course of the next two years, the Service collected information about Almrei's statements and actions from human sources which, if credible, would suggest that he was a committed Bin Laden supporter and participant in an international false document network. The Service then drew certain inferences from that information which, in my view, were not well-founded.\n\nAlmrei was under surveillance but there is no indication in the record of any intention to take action against him until 9/11. He may have encountered difficulties in obtaining the permanent resident status he had applied for and steps may have been taken to revoke the refugee finding on the grounds of his representation but he was not a candidate for a security certificate prior to those attacks. Almrei's association with Osama Bin Laden and support for jihad", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-181", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 435–437", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "At paragraph 54, the summary states that Service information indicates that Almrei shares bonds of kinship as well as faith with the Bin Laden network and has demonstrated his support of Bin Laden, those associated with or sponsored by him and his ideology. This is a reference to human source information dealt with in the closed proceedings. The summary also relies on the information Almrei disclosed in his solemn declaration of November 2002 that he had gone on jihad in Afghanistan and Tajikistan, had received weapons training in the use of the AK-47 assault rifle and had been in guest houses and camps under the command of Sayyaf and Khattab.\n\nAs indicated above, I am satisfied that certain of the human sources relied upon by the Service are not credible and that the information that they provided is not reliable and appropriate within the meaning of the statute.\n\nI state my findings about the sources in the closed set of reasons for judgment. My conclusion about their credibility is based upon operational and source management reports and the cross-examination of the Service witness conducted by the Special Advocates in the closed hearings. Having considered all of the information and evidence carefully, I am satisfied that certain of the human sources in this case had motives to concoct stories that cast Almrei in a negative light.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-182", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 438–440", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Information was provided by one source in September 2001 that is implausible given what is known now about the chronology of events including Almrei's travels and Bin Laden's movements. I accept that the Service did not have reason to doubt the information at that time, although the source was then designated as being of unknown reliability. However, when given a further opportunity in 2004 to recount his knowledge of what Almrei had told him about his experiences in Afghanistan, the source provided information which is consistent with Almrei's own evidence. The source was highly motivated to curry favour with the Service in 2001. In preparing the SIR, the Service chose to go with the 2001 account and ignored what he said three years later.\n\nAlmrei, in common with many others, has made comments that were critical of US policy towards the Middle East. He has freely acknowledged this. So long as he lacked the intent to act upon those views in a violent manner, that does not make him a security risk. The Ministers do not claim that he intended to commit an act of violence.\n\nI find Almrei’s evidence to be credible that prior to 9/11 he did not know much about Bin Laden other than that he was a wealthy Saudi who had supported the mujahedin during the anti-Soviet jihad and was then close to the Taliban. Almrei was certainly aware of events in the Middle East at that time but his primary interest was in Khattab and his role in the Chechnyan insurgency.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-183", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 441–443", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The evidence does not provide reasonable grounds to believe that Almrei had any association with Bin Laden or opportunity to meet apart from a brief period of time when their presence in Afghanistan may have coincided. There is no evidence that Bin Laden was at Beit al Ansar when Almrei was there and the evidence does not indicate that Almrei later went to any camps that Bin Laden controlled. Rather, he went to camps run by Sayyaf and Khattab, neither of whom can be reasonably said to be part of Al Qaeda.\n\nMr. Quiggin and Dr. Williams testified that they did not see the indicators in Almrei’s history that would suggest to them that he was Al Qaeda, such as evidence that he had gone to Sudan between 1992 – 1996 when Bin Laden and his entourage were based there.\n\nThe main thrust of the Ministers' case during the public hearings was on Almrei’s support for jihad, his experiences in Afghanistan and Tajikistan, contact with Abdul Rasul Sayyaf and support for Ibn Khattab’s role in Chechnya. Almrei's position is that his involvement in the Afghan jihad was supported at the time by the Islamic establishment. He had minimal contact with Sayyaf, did not know about the crimes attributed to Sayyaf's forces and was not himself directly involved in any fighting. His stays at Sayyaf's and Khattab’s camps were in the nature of rebat or garrison duty. He was trained in the use of an AK-47 but never had occasion to use it in combat.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-184", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 444–445", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei's evidence about his time in Afghanistan is consistent with Dr. Williams' evidence about the reality of the jihad experience for most of the Arab Afghans. The label \"Gucci Jihadi\", which Williams said was applied by the Afghans to some of the volunteers, doesn't fit Almrei. He was not wealthy and he was not there as a tourist. He was a young man seeking adventure and, possibly, a ticket to paradise. Almrei went back and forth to his home in Saudi Arabia to complete high school and later to attend to his business affairs. Eventually, he had had enough adventure and wanted to get on with his life, as did the great majority of Arab Afghan veterans. There is no reliable evidence that while he was in Afghanistan he was indoctrinated by and committed himself to Al Qaeda's vision of global jihad.\n\nAlmrei testified that while he had met Sayyaf, the mujahidin leader would have had little, if any interest in him. Sayyaf was a major figure in Afghan politics. Almrei was just one of the many young Arab volunteers who passed through his guest houses and camps at that time. I accept Dr. Williams’ view that Sayyaf maintained his camps primarily to protect his position in Afghanistan, not to export terror. Some of those who passed through Sayyaf’s camps later joined Al Qaeda.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-185", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 446–448", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei volunteered the information that he had stayed at a guest house in Babhi reserved for more important travelers. He explained how that came to be. The Ministers rely on his stays there to suggest that Almrei enjoyed a greater degree of intimacy with Sayyaf than that to which he has admitted. I am not persuaded by that. It is simply implausible to believe, given everything that has been presented in this case about Sayyaf, that he would have picked Almrei out of the herd and indoctrinated him in the “web of hate and terrorism over which Sayyaf presided” as the Ministers suggest.\n\nHad Almrei stayed with Sayyaf for any significant length of time or attended the university that Sayyaf ran at Babhi, an inference might have been drawn that he was being trained for other purposes. But Almrei moved on to a camp where he received basic training in the ubiquitous AK-47 and led prayers. On the second trip he connected with Khattab. Almrei played ping-pong one evening with Sayyaf . That was the extent of the relationship.\n\nThere is no doubt that Sayyaf is an ultra conservative Islamist with views on many issues as extreme as those of the Taliban. In a September 2, 2004 editorial, the New York Times described him as \"a notorious warlord and savage fundamentalist who in the 1980s and 1990s served as the chief mentor and protector of Khalid Sheikh Muhammad, the Qaeda mastermind of the September 11 terrorist attacks\" (T-114). Incredibly, the editorial noted, Sayyaf had been a major beneficiary of the American-led invasion and was then one of the country's leading power brokers whose endorsement was sought by all of the presidential candidates including Hamid Karzai.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-186", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 449–451", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Sayyaf’s focus throughout his career has been on Afghan politics. It appears from the evidence that he picked the sides that he fights on carefully to advance those interests. By all accounts, he was the Saudi’s favourite war lord in Afghanistan during the anti-Soviet jihad as he was one of the few who spoke Arabic fluently. That may explain why he chose to go against Bin Laden and the Taliban and to join with Massoud and the other members of the northern alliance and why the US favoured him following the invasion.\n\nSayyaf’s actions speak louder than his words, as Williams and Quiggin stated. He could not have been part of the Bin Laden network while he was actively trying to kill Bin Laden and other members of Al Qaeda. It is also implausible that he would have turned against his sponsors to support Bin Laden’s objective of overturning the House of Saud. And I find it inconceivable that the US would have done business with him if they had reason to suspect his involvement or support of attacks on American personnel.\n\nSome of those who went through Sayyaf's facilities near Peshawar and his camps in Afghanistan went on to become part of Al Qaeda and its affiliated groups or associated themselves with the Bin Laden philosophy and have committed terrorist acts outside the region. These individuals made their own choices. If there was any evidence that Sayyaf had sponsored or was otherwise linked to their actions, I doubt that he would have remained free following the coalition invasion of Afghanistan or would have been allowed to become a member of the new parliament and exert influence over the Karzai government.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-187", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 452", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "There is considerable evidence that Sayyaf’s forces committed war crimes or crimes against humanity during the efforts to oust the Najibullah regime. Sayyaf is quoted as having said that anyone remaining in Kabul was a Najibullah supporter and deserved to die (Ex. A-3, T-6, p.16). His forces are said to have attacked the minority Shi’ite, Hazara community with “unrestrained fury beheading old men, women, children and dogs” during the ensuing civil war (Ex. A-27, p.263). I agree with the Ministers that the respondent's contention that Sayyaf's activities fall within the parameters of the armed conflict exemption in the Criminal Code's definition of terrorism is untenable with respect to those events. I do not agree that it would have no application to all of Sayyaf's activities including his involvement in the anti-Soviet jihad and the internal war against the Taliban. In any event, there is no evidence or information before me that Almrei participated in any of the attacks that could be characterized as war crimes or crimes against humanity.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-188", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 453", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Mr. Justice Russell Zinn cautioned about the risk of guilt by association in Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2009] F.C.J. No. 656. At paragraph 53 of his reasons, Justice Zinn pointed out that a fundamental principle of justice is that the accused does not have the burden of proving his innocence and that proving the negative of an association with an extremist group can be extremely difficult. In that case, the applicant was acquainted with at least one confirmed terrorist, Ahmed Ressam, but there was no evidence that he himself had ever committed such an act. In other proceedings, the Court has been prepared to find that the named person’s involvement with terrorist networks was substantiated on the evidence and went beyond mere “guilt by association” reasoning: see for example, Mahjoub v. Canada (Minister of Citizenship and Immigration), 2006 FC 1503, [2006] F.C.J. No. 1862. In my view, Almrei cannot be found to be a danger to national security or a member of a terrorist organization due to his limited association with Sayyaf. If that were the case, it would apply to much of the current Afghan Government including the President.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-189", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 454–455", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Among Almrei’s communications intercepted following 9/11 is one in which he and his caller expressed concern that the attacks were committed by Muslims or Arabs. The closed information does not suggest in any way that Almrei knew or was expecting these events. I don't believe, as the Ministers contend, that his testimony suggests that he found the attacks objectionable simply because they involved the suicide of the attackers, an act which is prohibited by the Koran. I accept his evidence that he considers the attacks to be morally wrong and contrary to the teachings of Islam because they involved the killing of innocents.\n\nThe summary states that in Federal Court proceedings in 2004 Almrei identified photographs found on his computer during an RCMP search including photos of Bin Laden and one of the 9/11 hijackers, Mohammad Atta (paragraph 55). These are photographs of the sort that are downloaded to a computer when one visits news websites. The evidence given in the prior proceedings was that Almrei followed events on-line. A great many people would have had these photographs on their computers following 9/11. The Ministers did not press this allegation during the hearings and in their closing submissions and I have given it no weight. I mention it only because the allegation remains on the public record. Arab Afghan Connections:", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-190", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 456–458", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Ministers assert that Almrei is associated with Arab Afghans connected to the Bin Laden network. It is clear from the evidence that Almrei took advantage of his connections in the network of Arab Afghan veterans when he required assistance to make his way to Canada, that he associated with at least one veteran while in Canada and that he aided another by procuring a false passport and contributing to his bail bond. What is less clear is whether any of these individuals were part of the Bin Laden network as described in the Public Summary and the Ministers' evidence. Ibn Khattab\n\nThere is contradictory information in the record about Khattab and he remains a shadowy figure in the history of the region. The weight of the evidence before me in this case favours a finding that he was not a terrorist in his own right or a terrorist patron but I accept that there are reasonable grounds to believe the contrary. Khattab was a committed jihadist with a fundamentalist, Wahhabi outlook on Islam and the world. His reasons for participating in jihad in Afghanistan were the same as the other Afghan Arabs. With the fall of the Najibullah government, he declined to become involved in the Afghans' internecine strife and looked around for another place where he considered Muslims were oppressed. He found it first in Tajikistan and then in Chechnya.\n\nTajikistan was under the control of a hard-line communist government which remained in office with the support of the Russians when civil war broke out in May 1992. Supporters of the opposition were forced to take refuge in northern Afghanistan where they were protected by Ahmad Shah Masoud. Khattab allied himself with the United Tajik Opposition (UTO) party, a coalition of democratic reformists and Islamists led by Sayid Abdullah Nuri.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-191", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 459–460", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei testified that he stayed in Khattab's house at the Tajik refugee camp in Kunduz. During the Tajik civil war, Russian forces were deployed along the border to repel infiltration from Afghanistan. The UN negotiated a ceasefire in October, 1994 which led, to a peace agreement in 1997. I think that this may explain why Khattab moved on to Chechnya. Almrei's evidence that he had traveled to the border region with Khattab to scout Russian positions but they did not engage in fighting is, in my opinion, credible as the cease fire would have been in place during the months he was in the region.\n\nKhattab was a warrior. He favoured frontal attacks on the Russians. The information that he was directly involved in terrorist activities in Chechnya is not, in my view, persuasive but there is some information to that effect. The most troubling aspect regarding Khattab's sojourn in Chechnya is his association with Basayef, against whom a stronger case can be made of terrorism. There is also information that Khattab’s group may have engaged in terrorist acts after his death. The information that Khattab condoned the attacks on Americans in Saudi Arabia is credible as it would be consistent with his personal mission to drive foreigners out of Muslim lands.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-192", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 461–462", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The information and evidence presented in this case does not in my opinion support a finding that Khattab was a member of the Bin Laden network. They had likely encountered each other during the anti-Soviet jihad but did not fight in the same unit. Bin Laden may have contributed funds to Khattab in Chechnya and some of Khattab's fighters moved on to join Al Qaeda. But Dr. Williams thought that the number was very low. Khattab was unwilling to criticize Bin Laden but the evidence does not indicate that he was prepared to support or join Bin Laden's global jihad.\n\nAlmrei's association with Khattab was limited to a meeting in Babhi (Pabbi), a few trips to Kunduz and forays to and across the Amu Darya River into Tajikistan. He says that he took some food with him on his later trips as it was scarce in the Tajik refugee camp at Kunduz and that he obtained a grant from the Al Haramain Foundation in Ryadh to help the Tajiks build a school for girls in the camp run by the UTO. He subsequently followed Khattab's fortunes in Chechnya by long-distance from Saudi Arabia and later Canada.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-193", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 463–464", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Ministers regard the story about the girls school to be a complete contrivance intended to appeal to Canadian sensibilities and to conceal the funding of weapons and munitions and other supplies for Khattab. I was also sceptical of Almrei's claim until I read a report by a human source that Almrei had told him of this when he had described his experiences in Afghanistan. It remains difficult for Western minds to accept that a charitable foundation would write a check for roughly $35,000 to a young man who walked in off the street with a story about building a school to aid refugees. Almrei says he had a reference from an Islamic scholar in his hometown that was sufficient evidence of his bona fides for the foundation. I note that while some of the Al Haramain foundation offices have been listed for supporting terrorism, the Riyadh office was not included. There is evidence that Khattab was supported by many Saudis. Dr. Williams said he was considered to be a hero and was publicly mourned in Saudi Arabia, including by the Royal family, when he was killed by the Russians in 2002.\n\nAlmrei admired Khattab and supported his actions in Tajikistan and Chechnya. They were from the same city in south-eastern Saudi Arabia, Damman, and just a few years apart in age. But Khattab was a leader and a warrior. Almrei was content to go where others suggested and, if his evidence is to be believed, did no fighting at all. His association with Khattab does not, in my opinion, support a finding that he is a danger to the security of Canada. Nabil Almarabh", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-194", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 465–466", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Nabil Almarabh is a Syrian national who originally went to the United States in 1989 and remained there until 1991. He then went to Pakistan and Afghanistan with the support of the World Muslim League. Almrei met Nabil Almarabh at Kunduz. He knew Almarabh then by his kunya or respect name. Almarabh returned to the US in 1993. He was denied refugee status in Canada and deported to the US in 1995. He worked as a taxi driver in Boston at the same firm that employed Raeed Hijazi, later convicted in Jordan in relation to a terrorist plot. Almarabh returned to Canada in 2001 where he met Almrei at his uncle's Ahmed Shehab’s print shop in Toronto.\n\nAlmarabh asked for Almrei's help in obtaining a passport, ostensibly to visit his mother in Jordan. Almrei contacted a person he knew in Montréal and obtained a passport and other identity documents for Almarabh and pocketed a fee for the service. When Almarabh was caught attempting to enter the United States and returned to Canada where he was detained, Almrei contributed to the cash bond that Almarabh's uncle posted to get him released. Almarabh then arranged to have himself smuggled back into the United States in July 2001. He was convicted in Boston of an assault causing bodily harm, fined and placed on probation. Following 9/11, he was arrested by the FBI in Chicago on a material witness warrant at the grocery store where he was working. He had a substantial amount of cash in his possession and amber jewellery which he said was the proceeds of the sale of his share of his uncles' shop.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-195", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 467–469", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In July 2002, Almarabh pled guilty to charges of entering the country illegally and was sentenced to time served. He was deported to Syria in January, 2004. It seems as he escaped the attention of the Syrian authorities until sometime later when he registered for military service. A report from a human rights organization indicated that he remained in detention in 2008.\n\nThe public summary cites a number of media reports for information that Almarabh was linked to several of the 9/11 hijackers, was involved in money transfers that may have helped finance the 9/11 attacks, and was linked to an international forgery ring in which participants collected and traded passports and drivers licenses. In one newspaper report from 2004, a US immigration judge is said to have found that Almarabh presented a danger to national security, was credibly linked to elements of terrorism and had a propensity to lie.\n\nThe Court had the benefit of additional information in the closed proceedings. I am satisfied on the basis of that information that the more alarming media reports about Almarabh were not substantiated by the F.B.I, US Attorney' s Office and US District Court which dealt with his case. Nonetheless, it is clear that Almarabh was prepared to violate US and Canadian law whenever it suited him and that Almrei was willing to aid him in that regard. Ahmed Al Kaysee", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-196", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 470–473", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Ahmed Al Kaysee was also a veteran of the jihad in Afghanistan. Almrei says that he obtained his name from someone in Pakistan and called him prior to coming to Canada. Al Kaysee had become a Canadian citizen and was preaching as an Imam at a Toronto mosque. Al Kaysee met Almrei at the Toronto airport and helped him get settled. They remained friends until sometime after Almrei was detained. He initially tried to help Almrei by raising funds for legal fees. They are no longer close and Al Kaysee declined to assist in the latest proceedings. Hisham Al Taha\n\nWhen Almrei first applied to come to Canada in 1998, he said he intended to visit Al Taha in Richmond, B.C. In his testimony, Almrei says he was also given Al Taha’s name by his contact in Pakistan. Al Taha agreed to let him use his name when Almrei called, although the two had never met. He later denied speaking to Almrei and refused to assist him in the legal proceedings. Involvement in False Documentation:\n\nAlmrei has admitted knowing people in Montréal who could obtain false documents and that he had a reputation in the community for being able to do this. He has admitted that he traveled to Thailand in 1998 and met an individual who was involved in human smuggling and document procurement and that he contacted that person on several occasions after coming to Canada. He has admitted arranging a marriage of convenience between his employee and Ibrahim Ishak, that he provided a fraudulent reference letter for Ishak and that the two of them were involved in a scheme for obtaining Michigan and Ontario drivers licenses.\n\nThis information supports the finding that Almrei was prepared to and did engage in criminal activity. It does not, in my opinion, point to a conclusion that he is a national security risk.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-197", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 474–476", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The public summary notes that Ishak was detained by US authorities at the Detroit airport en route from Bosnia and had in his possession 13 packages of identity and other documents including passports. Almrei has denied knowing anything about these documents. Information from the Charkaoui II disclosure was considered in the closed proceedings regarding this matter. I am satisfied that there is no information to suggest that Almrei was involved or that Ishak was doing anything nefarious with those documents. Ishak was operating an immigration consultancy at that time. One of the sets of documents related to his fiancée whom he wished to help emigrate to Canada at that time, while still married to Almrei’s employee. The information as a whole indicates that Ishak was involved in fraudulent activity but not terrorism.\n\nThe public summary states that Almrei and five other individuals gained access to a restricted area at Pearson International Airport on September 17, 1999. Security officials were said to be probing a number of missing clearance and security passes for the most sensitive areas of the airport. These alarming statements are coupled with other information that a number of photographs were found on Almrei's computer during an RCMP search including a security badge, passport photo and the cockpit of an airplane.\n\nThis was the only new allegation against Almrei in the 2008 SIR and public summary. Airports are an obvious target for terrorist acts. When Mr. Young testified, he had not read the RCMP report which resulted from the Force’s investigation of the incident. That report was obtained during the hearing.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-198", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 477–479", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Almrei and the other men were observed washing planes and restocking supplies for a company that had a contract to service aircraft. Almrei was seen using a magnetic security pass to gain access to the hangar. It was later determined that he did not have a pass issued by the airport authority but Ishak did. Ishak’s pass was subsequently suspended by Transport Canada. The RCMP investigation concluded that the men were merely engaged in cleaning and restocking the aircraft.\n\nBut apart from the evidence that he had acquired such documents for his own use and procured them for Almarabh, the information presented to the Court did not support a finding that he was a member of a false document network. Security Consciousness and Use of Clandestine Methodology:\n\nThe public summary says nothing more than that Almrei has demonstrated concern for his security and an understanding of security procedures. It states that he was aware that his activities might be of interest to the authorities. This refers to information which was considered in the closed proceedings. I have addressed these matters in my private reasons for judgment. Should the Certificate be Stayed as an Abuse of the Court’s Process?", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-199", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 480–481", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In closing argument, the respondent submitted that the certificate should be stayed as an abuse of process because: a. he had been denied an opportunity to know and meet the case against him and this deficiency had not been cured by the presence of the Special Advocates; b. the Ministers had destroyed evidence which was required by the Special Advocates to determine the reliability of information and because the Ministers rely on unreliable evidence; c. the Government of Canada chose to use the security certificate procedure with all of its limitations on the rights of the respondent in lieu of an appropriate alternate procedure, namely criminal charges related to his admitted role in procuring a false Canadian passport; and because d. the Ministers breached their duty of candour to the Court.\n\nThe Special Advocates filed a related motion in the closed proceedings seeking to have the Certificate quashed on the ground that the Ministers and the Service breached their duties of candour. Their submissions were, in brief, that the SIR and Public Summary were prepared, and evidence and other information was presented to the Court during the evidentiary portion of this proceeding in a manner that failed to disclose material exculpatory evidence and other information that was in the possession of the Service and was only disclosed through the Charkaoui II disclosure. I have addressed that motion in my private decision and my findings in respect to the specific examples of material non-disclosure alleged have also been taken into consideration in arriving at a decision on the merits of the certificate.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-200", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 482–483", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In considering whether proceedings constitute an abuse of the court's process, the test is that set out in Blencoe v. B.C. Human Rights Commission, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, at paragraph 121. The court must be satisfied that the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted. The proceedings must be unfair to the point that they are contrary to the interests of justice or will undermine the integrity of the judicial process: Canada v. Tobias, [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82. Such cases will be extremely rare.\n\nThe respondent submits that the test is satisfied by the cumulative effect of the identified concerns even if one or more would be insufficient. Lack of Disclosure/Inability to Meet the Case", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-201", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 484–485", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The first of the abuse of process grounds raised by the respondent is associated with his broad Charter based challenge to the legislative scheme. As I indicated above, I do not consider it necessary to address that challenge in this case in view of the conclusions I have reached on the evidence. I think it important to comment, however, on the respondent’s argument that he was denied procedural fairness because of the lack of full disclosure. It is my view that the essential elements of the government's allegations against Mr. Almrei were disclosed to him in these and the prior proceedings. Based on his testimony and the submissions made on his behalf, Mr. Almrei was clearly aware of the Ministers’ allegations against him. He was not given full disclosure of all of the closed information that supported the Ministers’ case, such as human source reports, but that was unavoidable in the circumstances.\n\nIn support of this argument, the respondent relies on recent decisions of the European Court of Human Rights and the courts of the United Kingdom: Secretary of State v. M.B., [2007] UKHL 46 [“SSHD v. MB”]; A. and Others v. the United Kingdom, Application 3455-05, and ECHR Feb.19, 2009; Secretary of State for the Home Department v. AF and others, [2009] UKHL 28 [“SSHD v. AF”].", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-202", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 486", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In SSHD v. M.B., above, at paragraph 35, Lord Bingham commented on the \"grave disadvantages\" of the person affected not been aware of the case against him. He noted that the reason is obvious: In any ordinary case, the client instructs his advocate what his defence is to the charges made against him, briefs the advocate on the weaknesses and vulnerability of the adverse witnesses, and indicates what evidence is available by way of rebuttal. This is a process which may be impossible to adopt if the control person does not know the allegations made against him and cannot therefore give meaningful instructions, and the special advocate, once he knows what the allegations are, cannot tell the controlled person or seek instructions without permission, which in practice (as I understand) is not given.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-203", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 487–488", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "As counsel for the respondent fairly acknowledged, the practice in Canada in security certificate cases is not the same as that which applies in control order proceedings in the United Kingdom. In certain of the UK cases, details of the allegations against the affected individual have been wholly or largely withheld because of national security concerns. The public allegations may be so general as to preclude a cogent defence: SSHD v. AF, above at paragraph 63 to 65. The individual is not provided with an extensive summary of the closed case, as is the practise here, and the Court lacks the discretion to direct the disclosure of additional information in order to ensure that the subject of the process is reasonably informed of the Minister’s case, subject to withdrawal of the information by the Minister. Thus the issue in the UK cases, which has now been resolved, has been whether there is a “irreducible core minimum of information” that must be provided to ensure a fair hearing. The amount of information provided in the Canadian certificate cases is far above that level.\n\nIn this case, most of the information relied upon by the Ministers that was not disclosed to the respondent consisted of reports from human sources. To disclose the information would have lead to the identification of the sources. In SSHD v. AF at paragraphs 65 and 66, the House of Lords, applying the decision of the Grand Chamber of the European Court of Human Rights in A. v. the United Kingdom, above, accepted the principle that it may be acceptable not to disclose the source of evidence so long as counterbalancing procedures ensured that the party was accorded “a substantial measure of procedural justice.”", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-204", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 489–490", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "This is essentially the same conclusion as that reached by the Supreme Court of Canada in Charkaoui 1 in 2007. The individual must be provided with full disclosure or a “substantial substitute” to full disclosure. In my view, Parliament’s effort to craft a suitable alternative was successful in this case for two reasons. The first is that the respondent was provided with a sufficient understanding of the allegations that were made against him in the SIR through the public summary and the further information that was ordered disclosed. The second is that the Special Advocates very effectively performed the roles for which they were given a statutory mandate: to protect the interests of the respondent in the closed proceedings; to question the withholding of information; and to challenge the relevance, reliability and appropriateness of the non-disclosed information and other evidence relied upon by the Ministers. Destruction of Evidence\n\nThis concern is founded upon the fact that during the time of the investigation of the respondent, CSIS's policy was to destroy primary source material. This is the issue that was addressed by the Supreme Court of Canada in Charkaoui II. The Supreme Court did not rule on the respondent’s abuse of process application in that case, holding that it was for the court of first instance to review the evidentiary record and make the determination.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-205", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 491–493", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The respondent's argument on this question is framed primarily in the context of the destruction of electronic surveillance information. As discussed above, this is not a case which turned on the significance of electronic intercepts. Accordingly, the failure to keep original recordings of all of the intercepts conducted did not, in my view, have a material effect on the outcome of the case. In any event, I found that a summary of the intercept reports would be sufficient to provide reasonable disclosure to the respondent.\n\nThe destruction of original interview notes by source handlers was also not an issue of major concern in this case because of the contemporaneous reports which they had prepared. I did not consider it necessary to call any of the handlers as witnessed to be examined and cross-examined on the accuracy of those reports. In the circumstances and given the volume of material that the Court and Special Advocates had to review, I doubt that it would have proven effective to proceed in that manner. That is not to say that it could not be important in a certificate case if a significant issue arose as to whether a statement attributed to a source was reported accurately. Choice of Procedure\n\nThe respondent submits that had he been charged under the Criminal Code with offences related to the passport he procured for Nabil Almarabh, he would have been entitled to all of the procedural due process rights available in the criminal justice system. The decision to proceed under the security certificate procedure with its inherent limitations has deprived him of the full enjoyment of those rights.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-206", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 494–496", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Court may have encouraged this argument by questions posed to the government witnesses during the detention review proceedings. At first impression, it had occurred to me that Almrei could have been charged under the Code and, if convicted, steps could have been taken to reopen the refugee determination and remove him from Canada. I asked the Service and CBSA witnesses why that was not done and they were unable to answer.\n\nThe security certificate procedure, although intended by Parliament to be more expedient, results in a label being attached to the named person which may complicate removal procedures. In Almrei’s case, the immigration authorities contributed to that label by informing the Syrian Embassy in Ottawa that he was a terrorist suspect when they requested a travel document for him after the first Certificate was upheld. That had the effect of alerting the Syrians to Mr. Almrei’s alleged pedigree and association with Al Qaeda. Syria is one of the Middle Eastern countries that Al Qaeda theorists, such as the Syrian Abu Musab Al Suri, consider corrupt and apostate.\n\nWhat the government knew and could prove in the fall of 2001 are, of course, two different things. The information about Almarabh and the passport was intelligence that could not have been introduced as evidence in a criminal proceeding without compromising the sources. Almarabh was a material witness in the hands of the FBI and unlikely to be made available to testify.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-207", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 497–499", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In any event, the choice of procedure against a suspect, whether criminal or administrative, is entirely a matter for the Executive. There is no right to be charged with a criminal offence when Parliament has provided an alternative procedure to achieve the objective of protecting national security and the safety of Canadians. It is not an abuse of the Court’s process to make use of that procedure. Breach of the Duty of Candour\n\nThe Supreme Court has emphasized that a party before the Court on an ex parte basis is under a duty of utmost good faith: Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, [2002] S.C.J. No. 73, at para. 27. This is particularly true in the area of national security law characterized by in camera hearings and ex parte representations made by the government. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld: Ruby, above, at para. 47.\n\nThe application of this duty in security certificate proceedings prior to Bill C-3 was recognized by the Federal Court of Appeal in Charkaoui v. Minister of Citizenship and Immigration et al., 2006 FCA 206, [2006] F.C.J. No. 868, at para. 18. In my view, the enactment of Bill C-3 has not altered the duty owed to the Court by the Service and the Ministers. Proceedings continued to be conducted in closed sessions and they remain ex parte in the sense that the respondent and his counsel are not present. The presence of the Special Advocates and their ability to receive the same information that is now disclosed to the Court, pursuant to Charkaoui II, does not alter that fact.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-208", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 500–501", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The duties of utmost good faith and candour imply that the party relying upon the presentation of ex parte evidence will conduct a thorough review of the information in its possession and make representations based on all of the information including that which is unfavourable to their case. That was not done in this instance. The 2008 SIR was assembled with information that could only be construed as unfavourable to Almrei without any serious attempt to include information to the contrary, or to update their assessment. As Mr. Young observed, in an unguarded moment, they thought that they had done their job in 2001 and there was no need to continue the investigation.\n\nThe Ministers submit that the failure to consider information that casts the Service’s opinion in a different light should not undermine the legitimacy or fairness of the proceeding as long as that information has been made available in the course of the reasonableness hearing. Indeed, the Ministers assert in their closing reply submissions, at paragraph 15, that there is no requirement that the SIR advance a case against a finding of inadmissibility. The SIR, in other words, is merely a document crafted by CSIS to plead their case and does not need to present the contradictory information within their possession. In my view, that is clearly incompatible with the duties of good faith and candour which the Court expects from the Service and the Ministers.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-209", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 502–503", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In this case, information that was inconsistent with that presented to the Court through the SIR only came to light when it was ordered produced in conformity with the Service’s Charkaoui II obligations. This included surveillance and intercept reports that contradicted human source reports on which the Service and the Ministers relied. Information that was inconsistent with the content of the Source Exhibit was only disclosed when the Court began to order the production of information from the human source management files. The Charkaoui II disclosure obligation does not absolve the Service from the responsibility to fairly consider and present the information in their possession when they prepare the SIR. Nor does it absolve the Ministers from the responsibility to ensure that the information and evidence filed in support of the certificate is complete, thorough and fairly presented.\n\nI find, therefore, that the Service and the Ministers were in breach of their duty of candour to the Court. As for a remedy, a determination of the reasonableness of the certificate based on the Court's assessment of all of the information and evidence presented in this case is the most appropriate course of action at this stage of the proceedings. CONCLUSION", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-210", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 504–505", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "Having considered all of the information and other evidence presented to the Court, I am satisfied that Hassan Almrei has not engaged in terrorism and is not and was not a member of an organization that there are reasonable grounds to believe has, does or will engage in terrorism. I find that there are no reasonable grounds to believe that Hassan Almrei is to-day, a danger to the security of Canada. Thus, I find that none of the grounds of inadmissibility in subsection 34(1) of the Act have been made out and, accordingly, I find that the certificate is not reasonable and must be quashed.\n\nIn arriving at this conclusion, I am taking into consideration that Hassan Almrei lied and engaged in criminal activities prior to and following his entry to Canada. He maintained contacts with other Afghan Arab veterans, associated with persons who were believed to be Islamic extremists and made contact with others who were involved in human smuggling and the false document trade. He was prepared to assist others in obtaining those services and himself procured a false passport and other travel documents. As I said at the outset of these reasons, I would have had no difficulty upholding the certificate in 2001 on the grounds that he constituted a danger to the security of Canada and that there were reasonable grounds to believe then that he was a member of a terrorist organization, on the information available to the Court at that time. Almrei did not lead evidence to contest those findings and the information presented in camera was not challenged as it has been in these proceedings.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-211", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 506–509", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "The Hassan Almrei of 2001 is not the same person that I heard and observed in the courtroom. As he acknowledged in his testimony, he has been changed by the experience, by the people who have befriended and supported him in the years in which he was in custody and through the reading he has done on a broad range of subjects. One constant in his life over the course of the past eight years has been his religious devotion. I do not believe that he will now proceed to violate the principles of his faith.\n\nI am also persuaded by the evidence that if he is the person that the Ministers believe him to be, it is unlikely that after such a prolonged period of detention that he could re-enter the life that he had and reactivate his contacts in the false document trade. Given the notoriety that he has acquired, that would be foolhardy for him and for anyone inclined to do business with him.\n\nI note that CSIS, in their most recent assessment of Mr. Almrei, considers that the risk that he poses a threat to the security of Canada, if released without conditions, was reduced as a result of a number of factors. They had no new information to indicate that he was engaged in threat-related activities, his original network of contacts has been disrupted and his high public profile and lack of anonymity would render him less effective.\n\nThe Service's assessment in the February 2008 SIR was prepared, in my view, without sufficient consideration of all of the information within its possession and without considering whether the state of knowledge about the risks to national security posed by Islamist extremists had evolved since Almrei was detained in 2001. That task fell on the Court with the assistance of counsel for both parties and the Special Advocates. Certified Questions", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-212", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "paras 510–512", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "In accordance with section 79 of IRPA, no appeal may be made to the Federal Court of Appeal from this decision unless this Court certifies that a serious question of general importance is involved in the determination which has been made in the case and states the question for the purposes of appeal.\n\nThe Ministers have proposed a number of questions for consideration. The respondent is opposed to the certification of any question on the ground that should he have succeeded on the factual merits of the case against him, it would be unfair to subject him to a possibly long drawn-out appellate process after he has spent over seven years in custody.\n\nIn light of the findings that I have made and the length of these reasons, I think it appropriate to allow the parties some time to consider whether they wish to re-submit or withdraw their proposed questions or submit new questions. Accordingly, a formal order will not issue immediately and I will make myself available to discuss the matter in conference with counsel at a convenient date and time.", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fc-57473-213", - "doc_type": "caselaw", - "act_code": "2009 FC 1263", - "act_short": "Almrei", - "act_name": "Almrei (Re)", - "section": "", - "citation": "Almrei (Re), 2009 FC 1263", - "marginal_note": "para 513", - "heading": "Reasonableness of an IRPA security certificate after Charkaoui; the test on re-determination", - "part": "Federal Court", - "division": "", - "text": "I wish to express my appreciation to all of the counsel who took part in these proceedings, including those who moved on to other matters along the way, for their diligence, thoughtfulness, courtesy and good humour which made my task much easier. “Richard G. Mosley” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: DES-3-08 STYLE OF CAUSE: IN THE MATTER OF a certificate signed pursuant to section 77(1) of the Immigration and Refugee Protection Act (IRPA); AND IN THE MATTER OF the referral of a certificate to the Federal Court pursuant to section 77(1) of the IRPA; AND IN THE MATTER OF HASSAN ALMREI PLACE OF HEARING: Ottawa and Toronto, Ontario DATES OF PUBLIC April 27, 28, 29 and 30, 2009 HEARINGS: May 5, 6, 7, 8, 11, 12, 13, 14, 19, 20, 21, 22, 25, 26 and 27, 2009 July 2, 3 and 6, 2009 DATES OF IN CAMERA March 18, 2009 HEARINGS: April 1, 2, 14, 15, 16, 17, 2009 June 10, 22, 23, 24, 25 and 26, 2009 July 27 and 28, 2009 September 18, 25 and 30, 2009 REASONS FOR JUDGMENT: MOSLEY J. DATED: December 14, 2009 APPEARANCES: Ms. Marianne Zoric Mr. Marcel Larouche Mr. Bernard Assan Mr. Gordon Lee Mr. Asha Gafar Ms. Jennifer Dagsvik Ms. Tessa Kroeker Mr. Lorne Waldman Mr. Paul Williams Ms. Sarah Boyd Mr. Paul Copeland Mr. Gordon Cameron for the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness for Hassan Almrei for Special Advocates SOLICITORS OF RECORD: John H. Sims, Q.C. Deputy Attorney General of Canada for the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness Waldman and Associates Toronto, Ontario Mr. Paul Copeland Toronto, Ontario Mr. Gordon Cameron Ottawa, Ontario for Hassan Almrei for Special Advocates", - "current_to": "2009-12-14", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/57473/index.do" - }, - { - "id": "fca-36092-1", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 1–2", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal from the decision of Simpson J. of the Federal Court, reported at 2007 FC 208, [2007] F.C.J. No. 280, dismissing Mr. Sellathurai's application for judicial review of the Minister's decision (made on his behalf by his delegate) declining to return approximately $123,000 which were seized from him by a customs officer as he was about to depart for Sri Lanka from Pearson International Airport.\n\nThe funds were seized and forfeited because Mr. Sellathurai failed to declare them to a customs officer as he was required to do by section 12 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the Act) and, as conceded by his counsel, at the time of seizure there were reasonable grounds to suspect that the funds were proceeds of crime or were to be used in the funding of terrorism. The issue in this appeal is whether the Minister properly exercised his discretion in refusing to return the funds to Mr. Sellathurai. THE FACTS", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-2", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 3", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The following statement of the facts surrounding the seizure is taken from the Case Synopsis and Reasons for Decision prepared by the Canada Border Services Agency (formerly the Canada Customs and Revenue Agency) (the Agency) in response to Mr. Sellathurai's request for a ministerial review of the seizure of his funds: … on November 10, 2003, Mr. Sellathurai was questioned by Customs officials at Pearson International Airport, Toronto, Ontario outbound from Canada. He reported $4,000.00 in Canadian currency and $400.00 in American currency. He was asked the purpose of his trip. Mr. Sellathurai responded that he was to attend the funeral of his father and would be absent from Canada one week. The officer examined his passport noting that he had exited the United Arab Emirates on October 13, 2003. The officer asked to verify his currency. Mr. Sellathurai provided an envelope that contained several bills. The officer requested that he present the American currency, which he stated was in his carry-on. The officer questioned why he was taking $4,000.00 for a week-long trip. He advised the officer that he was an importer of clothing and a grocer as well as a salesman. Examination of his carry-on revealed two gold bars. When asked the value, he stated \"$20,000.00\". A receipt was provided from a Canadian jewellery store indicating that gold jewellery had been exchanged for the two gold bars. In his front pant pocket was more money. Mr. Sellathurai was moved to a private area for further examination. Mr. Sellathurai had, in total, eight envelopes of currency, the gold bars and some American currency. The officer asked him what the money was intended for. He stated that he was going to buy jewellery.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-3", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 3", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "At this time, the officer reminded him that he had stated he was a salesman, grocer and importer of clothing. Mr. Sellathurai stated that he is also a wholesaler of jewellery. He provided a business card. The name on the card was the same as the business name on the receipt for the gold bars. The officer advised Mr. Sellathurai that the currency was under seizure. While the paperwork was being prepared, Mr. Sellathurai stated that $90,000.00 was a loan from a jeweller in Montreal. He stated that $47,000.00 was from one individual and another $45,000.00 was from another person. He was unsure of their names at first. He stated that he intended to purchase jewellery for the two on this trip. He had no contract to substantiate this and no documents to support a withdrawal from a banking institution. As the officer had reasonable grounds to suspect that the currency was proceeds of crime, no terms of release were offered. The officer returned his documents, his two gold bars and other jewellery. [Appeal Book, at p. 227-228.]", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-4", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 4", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The seizure was made under the authority of sections 12 and 18 of the Act: section 12 requires all persons entering or leaving Canada with more than a prescribed amount of currency to report that amount to the nearest customs office upon arriving in or leaving Canada, while section 18 authorizes seizure in the event of a breach of section 12: 12. (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. … (3) Currency or monetary instruments shall be reported under subsection (1) (a) in the case of currency or monetary instruments in the actual possession of a person arriving in or departing from Canada, or that form part of their baggage if they and their baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; … 18. (1) If an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments. (2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities. … 12.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-5", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 4–5", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l'agent, conformément aux règlements, l'importation ou l'exportation des espèces ou effets d'une valeur égale ou supérieure au montant réglementaire. […] (3) Le déclarant est, selon le cas : a) la personne ayant en sa possession effective ou parmi ses bagages les espèces ou effets se trouvant à bord du moyen de transport par lequel elle arrive au Canada ou quitte le pays ou la personne qui, dans les circonstances réglementaires, est responsable du moyen de transport; […] 18. (1) S'il a des motifs raisonnables de croire qu' l y a eu contravention au paragraphe 12(1), l'agent peut saisir à titre de confiscation les espèces ou effets. (2) Sur réception du paiement de la pénalité réglementaire, l'agent restitue au saisi ou au propriétaire légitime les espèces ou effets saisis sauf s'il soupçonne, pour des motifs raisonnables, qu'il s'agit de produits de la criminalité au sens du paragraphe 462.3(1) du Code criminel ou de fonds destinés au financement des activités terroristes. […]\n\nThe prescribed amount is $10,000: see section 2 of the Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-6", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 6", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In accordance with paragraph 18(3)(a) of the Act, the officer gave Mr. Sellathurai written notice of the seizure and of his recourse under sections 25 and 30 of the Act: 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. … 30. (1) A person who requests a decision of the Minister under section 27 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant. 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l'article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s'il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. […] 30.(1) La personne qui a demandé que soit rendue une décision en vertu de l'article 27 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d'action à la Cour fédérale à titre de demandeur, le ministre étant le défendeur.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-7", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 7–10", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Sellathurai exercised his right to request a ministerial review of the officer's decision. In a letter dated January 12, 2004, an officer of the Agency set out the circumstances surrounding the seizure. The officer then went on to request further information: Please submit evidence to support where you obtained the money such as withdrawal from a bank account or other such evidence that would support that the money was legitimately obtained. [Emphasis added.] [Appeal Book, at p. 63.]\n\nNo specific grounds for suspicion are identified in this letter and no specific explanations are requested. The only proof requested is proof that the funds were legitimately obtained.\n\nIn response to this request, Mr. Sellathurai supplied three affidavits and three letters of reference. The affidavits were provided by Sathi Sathananthan, Shudhir Chawla, and George Montgomery Pathinather. Sathi Sathananthan, Mr. Sellathurai's bookkeeper, produced bank statements and cancelled cheques showing withdrawals from Mr. Sellathurai's business account between September 19, 2003 and November 10, 2003, in the amount of $37,000 by way of cheques drawn in favour of Mr. Sellathurai's wife.\n\nShudhir Chawla deposed that he is Mr. Sellathurai's business associate and that he loaned him $47,000 in cash to purchase 22 carat gold jewellery for him in Dubai. The $47,000 was the product of the sale of 93 ounces of gold bullion in various cash transactions. George Montgomery Pathinather deposed that he is in the jewellery business in Montreal and has known Mr. Sellathurai for three and a half years. He further deposed that he provided the latter, from funds kept in his office safe, $45,000 in cash, generated by cash transactions.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-8", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 11–13", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The officer responded to these elements of proof in a letter to Mr. Sellathurai's counsel dated March 15, 2004. The material parts of that letter are as follows: The affidavits from George Pathinather and Shudhir Chawla do not substantiate the legitimacy of their portion of the seized currency. Legitimate businesses wish to maintain records of their funds and expenses to ensure records for tax purposes and maintain internal audit controls…They will require documentary evidence to support the legitimacy of the seized currency. … Having broken the law and failed to declare, a person cannot regain currency seized as forfeit, on a reasonable suspicion under the Act, by merely telling a story that could be true. An innocent explanation as to the origin of the funds must be proven in sufficient detail and with enough credible, reliable and independent evidence to establish that no other reasonable explanation is possible… [Emphasis added.] [Appeal Book, at p. 103-104.]\n\nWhen counsel objected to the dismissal of the evidence provided on Mr. Sellathurai's behalf, the officer responded as follows in a letter dated May 3, 2004: I would like to re-state that the affidavits from George Pathinather and Shudhir Chawla do not substantiate the legitimacy of their portion of the seized currency. They will require documentary evidence to support the legitimacy of the seized currency. [Appeal Book, at p. 107.]\n\nIn a letter dated June 18, 2004, the officer responded to a further inquiry by Mr. Sellathurai's counsel by re-stating the position taken in her letter of March 15, 2004, and insisting upon production of documentary evidence to support the legitimacy of the seized currency: Appeal Book, at p. 108-109.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-9", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 14–15", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister (by his delegate) advised Mr. Sellathurai of his decision by letter dated October 6, 2005. The reasons given for the decision are contained in the following two paragraphs: The evidence submitted has confirmed that you were specifically questioned by a Customs officer at Pearson International Airport on November 10, 2003, and you advised the officer that you did not have currency in excess of $10,000.00 CAD. Examination revealed $435.00 USD currency and $123,000.00 Canadian currency. Consequently, by virtue of section 12 and 18 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act; [sic] the currency was lawfully subject to seizure. No terms of release were offered for the currency as the officer had reasonable suspicion to suspect proceeds of crime [sic]. Although your solicitor's representations have been considered, mitigation has not been granted in this case. The evidence provided is not verifiable and does not substantiate the origin of the currency. Based on the totality of the evidence and the lack of verifiable evidence to support the legitimate origin of the currency, reasonable suspicion still exists. As such the currency has been held as forfeit… [Appeal Book, at p. 116-117.] THE FEDERAL COURT'S DECISION\n\nMr. Sellathurai sought judicial review of this decision in the Federal Court. The application judge reviewed the facts and addressed the question of standard of review. She concluded that the Minister's decision should be reviewed on a standard of reasonableness, except \"when dealing with the burden of proof faced by an applicant who wishes to dispel ' reasonable grounds to suspect'. On that issue, correctness will be the standard of review:\" Reasons for Decision, at para. 60.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-10", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 16", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "Counsel for Mr. Sellathurai argued that the Minister's delegate used the wrong test in deciding whether to confirm the forfeiture of Mr. Sellathurai's funds. This is apparent from the application judge's statement of the issues: 61. The Applicant has raised the following issues. The headings are mine. No reasonable grounds? I. The Minister erred in his decision that the funds in question are forfeit insofar as there exists no reasonable grounds to suspect that the funds in question are the proceeds of crime. An improper test? II. The Minister erred in his decision insofar as he improperly reversed the burden of proof, finding, in effect, that the Applicant failed to prove that the funds in question were not the proceeds of crime. A contradictory decision? III. The Minister erred in his decision insofar as his decision is, on its face, contradictory and therefore unreasonable. [Reasons for Judgment and Judgment, at para. 61.]", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-11", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 17", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The application judge dealt with the second issue, that of the reversal of the onus of proof, in the following terms: 63. Section 29 of the Act is silent about the principles to be used by a Minister's Delegate in deciding whether to confirm a currency forfeiture. However, the Decision makes it clear that, in this case, the Minister's Delegate was determining whether a reasonable suspicion still existed. In other words, the Minister's Delegate adopted for the Decision the test the Customs Officer at the airport was required to use when she declined to return the Forfeited Currency, pursuant to subsection 18(2) of the Act. That subsection provides that she must have had \"reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities\". In my view, the Decision stated the correct test when it indicated that the Minister's Delegate was determining whether such reasonable grounds still existed. [Reasons for Judgment and Judgment, at para. 63.]", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-12", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 18", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The application judge found no merit in the first issue and then analyzed the issue of standard of proof applicable to an applicant who sought to recover funds seized as forfeit. After a discussion of the authorities, she concluded as follows: 72. With regard to the burden of proof on an applicant who wishes to dispel a suspicion based on reasonable grounds, it is my view that such an applicant must adduce evidence which proves beyond a reasonable doubt that there are no reasonable grounds for suspicion. Only in such circumstances will the evidence be sufficient to displace a reasonable suspicion. 73. I have reached this conclusion because, if a Minister's Delegate were only satisfied on the balance of probabilities that there were no reasonable grounds for suspicion, it would still be open to him to suspect that forfeited currency was proceeds of crime. The civil standard of proof does not free the mind from all reasonable doubt and, if reasonable doubt exists, suspicion survives. 74. In this case, the adjudicator required proof beyond all doubt and I am satisfied that this constituted an error in law because proof beyond a reasonable doubt is sufficient to defeat reasonable grounds for suspicion.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-13", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 19–20", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The application judge concluded that the adjudicator [the Agency officer] required proof in excess of proof beyond a reasonable doubt because of the statement, quoted earlier in these reasons, that proof that there was no other reasonable explanation as to the source of the funds, was required. However, the application judge went on to conclude that the error was not material because Mr. Sellathurai's evidence fell below the standard of proof beyond a reasonable doubt. Since the Minister's error could not have affected the outcome, the application for judicial review could not succeed and was therefore dismissed. THE POSITIONS OF THE PARTIES\n\nIn the Memorandum of Fact and Law filed on Mr. Sellathurai's behalf, his counsel defined the issue in the appeal as follows: 15. The Appellant respectfully submits that Justice Simpson erred in law in finding that, in order to dispel a reasonable suspicion that funds seized and held as forfeit are the proceeds of crime under section 18(2) of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act and to thereby obtain the return of the currency under section 29(1)(a) of the Act, the Appellant had to establish beyond a reasonable doubt that the funds were legitimately obtained. It is submitted that the standard of proof required to dispel a reasonable suspicion properly lies between the civil standard of proof on a balance of probabilities and the criminal standard of proof beyond a reasonable doubt. [Emphasis in the original.] [Appellant's Memorandum, at para. 15.]", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-14", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 21", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The balance of the Memorandum discussed the nuances of standard of proof, proof beyond a reasonable doubt and proof required to dispel a reasonable doubt. In the course of that discussion, counsel for Mr. Sellathurai conceded that: … reasonable suspicion existed at the time of the forfeiture by the CBSA officer. [Emphasis in the original.] [Appellant's Memorandum, at para. 16.]", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-15", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 22", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The substance of the appellant's argument was that since the evidence submitted by Mr. Sellathurai was uncontradicted and was relevant to the source and the legitimacy of the funds, it ought to have been accepted as sufficient to dispel the reasonable suspicion which existed at the time of the seizure of the currency. Counsel argued that the requirement of proof beyond a reasonable doubt is misplaced since that standard is used only in the criminal context where the liberty of the subject is at stake. In this case, the Act makes no reference to proof beyond a reasonable doubt. According to counsel for Mr. Sellathurai, the appropriate standard of proof required to dispel reasonable suspicion lies between the civil standard of proof and the criminal standard of proof beyond a reasonable doubt. In taking this position, counsel relies on a quotation from Bennett J. in R. v. Pilarinos, 2001 BCSC 1690, [2001] B.C.J. No. 2540, at paragraph 143, dealing with proof of a reasonable apprehension of bias: 143. In summary, there is a strong presumption of judicial integrity that may only be displaced by cogent evidence establishing a real likelihood of bias. It is trite to note that this burden is higher than a simple balance of probabilities, but lower than proof beyond a reasonable doubt. The burden lies with the person alleging a reasonable apprehension of bias. A reasonable apprehension of bias is determined by the well-informed, right-minded individual who is aware of all of the circumstances, including the nature of the case, its surrounding circumstances and the presumption of judicial integrity.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-16", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 23–25", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "Counsel for Mr. Sellathurai concluded his argument by suggesting: … At the very least, when the material was being submitted by the Appellant to the Recourse Directorate, some effort should have been made by the Recourse Directorate or the Minister's Delegate to put the Appellant on notice as to the standard that was being applied so that he could meet it… [Appellant's Memorandum, at para. 26.]\n\nThe Minister's position is that the application judge's conclusion is reasonable and therefore, no intervention is justified. ANALYSIS Standard of Review\n\nThe question of the standard of review of the Minister's decision under section 29 was settled by this Court in Dag v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 95, 70 Admin. L.R. (4th) 214, at paragraph 4 (Dag), where it was held that the standard of review of the Minister's decision under section 29 was reasonableness. Consideration of the issue of the standard of review of the decision as to the standard of proof to be met by the applicant will, for reasons which will become apparent, be deferred to a later point in these reasons. Review of the Jurisprudence", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-17", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 26", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "Simpson J.'s decision in this case was followed in a number of subsequent cases in the Federal Court which adopted her endorsement of the Minister's statement of the basis on which he was exercising his discretion under section 29 of the Act: see Dag, 2007 FC 427, 318 F.T.R. 269, at para. 31, aff'd 2008 FCA 95; Dupre v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 1177, [2007] F.C.J. No. 1521, at para. 22 (Dupre); Hamam v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 691, 314 F.T.R. 151, at para. 24; Yang v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 158, [2008] F.C.J. No. 197, at para. 11 (Yang); Lyew v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 1117, 317 F.T.R. 234, at para. 31 (Lyew); Dang v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 157, [2008] F.C.J. No. 196, at para. 29; Ondre v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 454, 312 F.T.R. 134, at para. 46 (Ondre); Yusufov v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 453, 312 F.T.R. 122, at para. 42 (Yusufov); Majeed v. Canada (Minister of Public Safety), 2007 FC 1082, [2007] F.C.J. No. 1394, at para. 47 (Majeed); Qasem v. Canada (Minister of National Revenue), 2008 FC 31, 322 F.T.R. 47, at para. 14 (Qasem).", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-18", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 27–29", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "On the other hand, there has been a certain divergence of opinion as to the standard of proof to be met by the applicant. Some judges have adopted Simpson J.'s position that the appropriate standard is proof beyond a reasonable doubt: see Ondre, at para. 19; Yusufov, at para. 20; Majeed, at para. 50. Other judges have framed the issue in terms of the evidentiary burden on the applicant to dispel the Minister's suspicions: see Dupre, at paras. 37-38; Yang, at paras. 20-21; Qasem, at para.18. Some judges have been critical of the use of language taken from the criminal context to describe the burden upon the applicant: Qasem, at para. 21; Lyew, at para. 32.\n\nIt appears from this that Simpson J.'s decision in this case has, to some extent, framed the terms of the debate with respect to the operation of section 29. Two themes have emerged from the jurisprudence, namely the basis on which the Minister exercises his discretion under section 29 and the standard of proof to be met by an applicant. Before examining these in more detail, it is necessary to examine the nature of the Minister's decision under section 29. The Nature of the Section 29 Decision\n\nTo understand what the Minister is required to do under section 29, it is necessary to understand the status of the seized currency at the time the section 29 decision is taken.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-19", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 30–31", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The forfeiture of currency under section 18 is effective as of the time of the breach of section 12: 23. Subject to subsection 18(2) and sections 25 to 31, currency or monetary instruments seized as forfeit under subsection 18(1) are forfeited to Her Majesty in right of Canada from the time of the contravention of subsection 12(1) in respect of which they were seized, and no act or proceeding after the forfeiture is necessary to effect the forfeiture. 23. Sous réserve du paragraphe 18(2) et des articles 25 à 31, les espèces ou effets saisis en application du paragraphe 18(1) sont confisqués au profit de Sa Majesté du chef du Canada à compter de la contravention au paragraphe 12(1) qui a motivé la saisie. La confiscation produit dès lors son plein effet et n'est assujettie à aucune autre formalité.\n\nNot only is the forfeiture effective as of the date of the breach of section 12, it is also final, subject only to judicial review of the finding that section 12 has been breached: 24. The forfeiture of currency or monetary instruments seized under this Part is final and is not subject to review or to be set aside or otherwise dealt with except to the extent and in the manner provided by sections 25 to 30. 24. La confiscation d'espèces ou d'effets saisis en vertu de la présente partie est définitive et n'est susceptible de révision, de rejet ou de toute autre forme d'intervention que dans la mesure et selon les modalités prévues aux articles 25 à 30.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-20", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 32", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "As this Court pointed out in Tourki v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FCA 186, 284 D.L.R. (4th) 356 (Tourki), that which is the subject of review under sections 25 to 30 is the conclusion that there has been a breach of section 12, not the consequences of that breach: see paras. 16-18. Of course, the applicant's only interest in challenging the finding under section 12 is to attempt to obtain the return of the funds seized or the penalty paid. And since the only way to access the discretion vested in the Minister under section 29 is to request a review under section 25, such an application is, in effect, an application for relief from forfeiture.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-21", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 33", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The only means by which a decision under section 29 may be challenged is by means of judicial review: see Tourki, at para. 18. The jurisprudence suggests that the question raised in such an application for judicial review is the relationship between the Minister's decision under section 29 and that of the customs officer under subsection 18(2). Does section 29 call for the Minister to review or to repeat the exercise undertaken by the customs officer in coming to the conclusion to seize the funds? 29.(1) If the Minister decides that subsection 12(1) was contravened, the Minister shall, subject to the terms and conditions that the Minister may determine, (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada. The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-22", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 33", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "29.(1) S'il décide qu'il y a eu contravention au paragraphe 12(1), le ministre, aux conditions qu'il fixe : a) soit décide de restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; b) soit décide de restituer tout ou partie de la pénalité versée en application du paragraphe 18(2); c) soit confirme la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34. Le ministre des Travaux publics et des Services gouvernementaux, dès qu'il en est informé, prend les mesures nécessaires à l'application des alinéas a) ou b).", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-23", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 34–35", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister is only called upon to exercise his discretion under section 29 where he concludes, pursuant to a request made under section 25, that there has in fact been a breach of section 12. Consequently, the starting point for the exercise of the Minister's discretion is that the forfeited currency, which is now in the hands of the Minister of Public Works pursuant to section 22, is, for all legal purposes, property of the Crown: see Canada v. Central Railway Signal Co., [1933] S.C.R. 555 at p. 557-558, where the following appears: Some question was raised on the argument as to the effect of the seizure of the 4th July and as to its character as well. The point was not raised in the courts below and the evidence on the point is quite sufficient. It is not open to question on that evidence, that the goods were seized, and \"seized as forfeited\" for violation of the Excise Act. Nor is there any room for doubt as to the effect of such a seizure. It proceeds upon the assumption that the goods, having been forfeited ipso jure, in consequence of the violation of the Act, are at the time of seizure, and not as a consequence of it, the property of the Crown. There are several provisions of the statute under which forfeiture supervenes upon the commission of the offence, as a legal consequence of the offence, independently of any act on the part of the officers of excise or any conviction or other judgment of a court.\n\nThe logic which applies under the Excise Act, R.S.C. 1985, c. E-14, also applies to the Customs Act, R.S.C. 1985, (2nd Supp.), c. 1, as well as to the Act under consideration here: see Tourki, at para. 17.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-24", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 36–37", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "It seems to me to follow from this that the effect of the customs officer's conclusion that he or she had reasonable grounds to suspect that the seized currency was proceeds of crime is spent once the breach of section 12 is confirmed by the Minister. The forfeiture is complete and the currency is property of the Crown. The only question remaining for determination under section 29 is whether the Minister will exercise his discretion to grant relief from forfeiture, either by returning the funds themselves or by returning the statutory penalty paid to secure the release of the funds.\n\nIn this case, the Minister recognized the nature of the discretion he was being called upon to exercise when he advised Mr. Sellathurai, in his letter of October 6, 2005, that \"mitigation has not been granted in this case\": Appeal Book, at p. 117. Mitigation of the consequences of forfeiture is, in effect, relief from forfeiture. While the Minister's characterization of the decision he makes under section 29 is not conclusive, I find confirmation of my position in the Minister's response to Mr. Sellathurai's request. The Basis of the Exercise of the Minister's Discretion", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-25", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 38–40", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "This leads to the question as to how the Minister will exercise his discretion. As this Court recognized in Tourki, at paragraph 29, the Act does not stipulate the basis on which the Minister is to exercise his discretion. The jurisprudence on the exercise of a statutory discretion requires, among other considerations, that the discretion be exercised to further the objects of the statute which confers the discretion: It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. [Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at p. 7-8 (Maple Lodge Farms).]\n\nWhile the basis upon which courts will intervene with respect to discretionary decisions has evolved since Maple Lodge Farms, consideration of the statutory purpose remains a key element of the analysis: see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 67-68; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 36. The Exercise of the Minister's Discretion\n\nHow did the Minister exercise his discretion in this case? The answer to that question requires a review of what the Minister did, as well as what the Minister said he did. In my view, they are not the same thing.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-26", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 41–42", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "From his first contact with Mr. Sellathurai, the Minister (acting through the Agency and through his delegate) asked him for one thing only: to demonstrate to him that the seized funds came from a legitimate source. A review of the exchange of correspondence between the Agency and Mr. Sellathurai's counsel, set out in the first part of these reasons, shows that Mr. Sellathurai was repeatedly and consistently asked to provide proof that the seized funds came from a legitimate source. When Mr. Sellathurai did provide such proof in the form of the affidavits of Sathananthan, Chawla, and Pathinather, the Minister was not persuaded because the affidavits provided explanations which were unverifiable. It seems clear from a fair reading of the record that what the Minister actually did was to insist upon proof of the legitimacy of the source of the funds as a condition of exercising his discretion in favour of Mr. Sellathurai.\n\nWhat the Minister said he did is slightly different. In his letter to Mr. Sellathurai explaining why he was refusing his request for \"mitigation\", the Minister wrote as follows: Although your solicitor's representations have been considered, mitigation has not been granted in this case. The evidence provided is not verifiable and does not substantiate the origin of the currency. Based on the totality of the evidence and the lack of verifiable evidence to support the legitimate origin of the currency, reasonable suspicion still exists. As such the currency has been held as forfeit… [Emphasis added.] [Appeal Book, at p. 117.]", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-27", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 43–45", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "There is logic in the Minister's reasoning that if the applicant cannot show that the seized funds come from a legitimate source, the customs officer's reasonable grounds for suspicion that the funds are proceeds of crime still remain. However, to cast the issue in these terms is to see the section 29 decision in terms of reassessing the customs officer's decision. As noted above, once the breach of section 12 is confirmed, the only issue remaining is whether the Minister will grant relief from forfeiture. Thus while the Minister's statement appears reasonable, it mischaracterizes the nature of the problem confronting the Minister.\n\nThe reference to \"reasonable suspicion still exists\" suggests that the Minister considered the reasonable grounds for suspicion identified by the customs officer and, in light of the information provided by Mr. Sellathurai, decided whether those grounds for suspicion were still legitimate. In her reasons, the application judge equated this exercise with the adoption of the test imposed on the Minister by subsection 18(2): see para. 63.\n\nThe application judge may have been lead to that conclusion by the nature of the affidavit filed by the Minister's delegate. While the letter setting out the reasons for the refusal of Mr. Sellathurai's request deals only with the evidence of the legitimacy of the source of the seized funds, the Minister's delegate filed an affidavit in which he restated and reviewed the grounds for suspicion identified by the customs officer, and indicated why he believed they remained unanswered. In my view, this form of affidavit is inappropriate and ought not to have been given any weight at all.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-28", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 46–48", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The judges of the Federal Court have previously stated that a tribunal or a decision-maker cannot improve upon the reasons given to the applicant by means of the affidavit filed in the judicial review proceedings. In Simmonds v. Canada (Minister of National Revenue), 2006 FC 130, 289 F.T.R. 15, Dawson J. wrote at paragraph 22 of her reasons: I observe the transparency in decision-making is not promoted by allowing decision-makers to supplement their reasons after the fact in affidavits.\n\nSee to the same effect Kalra v. Canada (Minister of Citizenship and Immigration), 2003 FC 941, 29 Imm. L.R. (3d) 208, at para. 15; Yue v. Canada (Minister of Citizenship and Immigration), 2006 FC 717, [2006] F.C.J. No. 914, at para. 3; bin Abdullah v. Canada (Minister of Citizenship and Immigration), 2006 FC 1185, [2006] F.C.J. No. 1482, at para. 13. Any other approach to this issue allows tribunals to remedy a defect in their decision by filing further and better reasons in the form of an affidavit. In those circumstances, an applicant for judicial review is being asked to hit a moving target.\n\nQuite apart from its admissibility on the issue of the reasons for the decision, the Minister's delegate's affidavit raises issues of credibility because the factual issues identified in the affidavit were never raised with Mr. Sellathurai, nor was he ever asked for any explanation of any of the facts which were identified as giving rise to reasonable grounds for suspicion. One would have thought that if the Minister's delegate was examining the facts identified as the grounds for suspicion, he would have made inquiries about them.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-29", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 49–50", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "Where the Minister repeatedly asks for proof that the seized currency has a legitimate source, as he did in this case, it is a fair conclusion that he made his decision on the basis of the applicant's evidence on that issue. The underlying logic is unassailable. If the currency can be shown to have a legitimate source, then it cannot be proceeds of crime.\n\nIf, on the other hand, the Minister is not satisfied that the seized currency comes from a legitimate source, it does not mean that the funds are proceeds of crime. It simply means that the Minister has not been satisfied that they are not proceeds of crime. The distinction is important because it goes directly to the nature of the decision which the Minister is asked to make under section 29 which, as noted earlier in these reasons, is an application for relief from forfeiture. The issue is not whether the Minister can show reasonable grounds to suspect that the seized funds are proceeds of crime. The only issue is whether the applicant can persuade the Minister to exercise his discretion to grant relief from forfeiture by satisfying him that the seized funds are not proceeds of crime. Without precluding the possibility that the Minister can be satisfied on this issue in other ways, the obvious approach is to show that the funds come from a legitimate source. That is what the Minister requested in this case, and when Mr. Sellathurai was unable to satisfy him on the issue, the Minister was entitled to decline to exercise his discretion to grant relief from forfeiture. The Standard of Proof", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-30", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 51–52", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "This leads to the question which was argued at length before us. What standard of proof must the applicant meet in order to satisfy the Minister that the seized funds are not proceeds of crime? In my view, this question is resolved by the issue of standard of review. The Minister's decision under section 29 is reviewable on a standard of reasonableness. It follows that if the Minister's conclusion as to the legitimacy of the source of the funds is reasonable, having regard to the evidence in the record before him, then his decision is not reviewable. Similarly, if the Minister's conclusion is unreasonable, then the decision is reviewable and the Court should intervene. It is neither necessary nor useful to attempt to define in advance the nature and kind of proof which the applicant must put before the Minister.\n\nOn the facts of this case, Mr. Sellathurai put before the Minister evidence which was essentially unverifiable. It was not unreasonable for the Minister to decline to accept this evidence at face value. As was pointed out in the correspondence between the Agency and counsel for Mr. Sellathurai, businesses are bound to retain books and records sufficient to allow the Agency to verify their compliance with their obligations under the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1. The failure to do so is not evidence that such businesses are breaking the law, but it does not assist them in demonstrating that their income is legitimately derived. As a result, I see no basis for intervening and I would dismiss the appeal. CONCLUSION", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-31", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 53–55", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The nature of the discretion to be exercised by the Minister under section 29 is whether to relieve an applicant, whose breach of section 12 he has just confirmed, from the consequences of that breach. The Minister's discretion must be exercised within the framework of the Act and the objectives which Parliament sought to achieve by that legislation. Within that framework, there may be various approaches to the exercise of the Minister's discretion but so long as the discretion is exercised reasonably, the courts will not interfere. In this case, the Minister proceeded by asking Mr. Sellathurai to demonstrate that the funds which were seized came from a legitimate source. The Minister concluded that the evidence provided by Mr. Sellathurai did not satisfy him that the funds came from a legitimate source. It was not unreasonable of the Minister, in those circumstances, to decline to exercise his discretion so as to grant relief from forfeiture.\n\nAs a result, I would dismiss the appeal with costs. \"J.D. Denis Pelletier\" \"I agree M. Nadon J.A.\" RYER J.A. (Concurring)\n\nI have reviewed the reasons of my colleague, Pelletier J.A., and concur with his decision that the appeal should be dismissed. However, since I have reached that conclusion by a different path, concurring reasons are warranted.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-32", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 56–57", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal from a decision of Simpson J. (the “Application Judge”) of the Federal Court (2007 FC 208) dated February 23, 2007, dismissing the application of Mr. Gowrkumaran Sellathurai (the “appellant”) for judicial review of a decision of the Minister of Public Safety and Emergency Preparedness (the “Minister”), pursuant to paragraph 29(1)(c) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the “Act”), confirming the forfeiture of certain funds seized from the appellant. Unless otherwise indicated, all statutory references in these reasons are to the corresponding provisions of the Act.\n\nWhile the appellant concedes that there were valid grounds for the forfeiture at the time of the seizure of the funds, the appellant contends that the evidence that was provided to the Minister subsequent to the seizure was sufficient to dispel these grounds, thereby necessitating the return of the funds to him. BACKGROUND", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-33", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 58", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant and his wife operated a wholesale jewellery business in Scarborough, Ontario. He has frequently travelled internationally on business. In the course of his departure from Canada on November 10, 2003, when questioned by an officer (the “Officer”) of the Canada Border Services Agency (the “CBSA”) as to the amount of funds that he was travelling with, the appellant declared that he was carrying $4,000 CAD and $400 USD (collectively, the “Declared Funds”). An examination of his luggage and his person revealed that, in addition to the Declared Funds, the appellant was carrying $119,000 CAD and $35 USD (collectively, the “Undeclared Funds”). The appellant was also found to be carrying two gold bars that he valued at approximately $20,000 CAD. These items were left with the appellant, as they are not considered to be currency for the purposes of the Act.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-34", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 59", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "After having discovered the Undeclared Funds, the Officer determined that there were reasonable grounds for her to believe that the appellant had contravened subsection 12(1), which by reference to section 2 of the Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412, requires the disclosure of any amount of currency or monetary instruments in excess of $10,000 CAD (or its equivalent in a foreign currency) that is being taken out of Canada. As a result, pursuant to subsection 18(1), the Officer seized the Declared Funds and the Undeclared Funds as forfeit. Subsections 12(1) and 18(1) read as follows: 12(1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. 12(1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l'agent, conformément aux règlements, l'importation ou l'exportation des espèces ou effets d'une valeur égale ou supérieure au montant réglementaire. 18(1) If an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments 18(1) S’il a des motifs raisonnables de croire qu’il y a eu contravention au paragraphe 12(1), l’agent peut saisir à titre de confiscation les espèces ou effets", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-35", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 60–61", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant indicated to the Officer that the reason for his trip was to attend the funeral of his father. He stated that he would be absent from Canada for one week and would be spending two of those days in Dubai. The appellant told the Officer that his father had died on November 8, 2003, and that he purchased his tickets on November 10, 2003 because the ticket office was closed on November 8, 2003. However, an examination of the tickets revealed that they had, in fact, been purchased by the appellant prior to the date of his father’s death. The Officer examined the passport of the appellant and found that he had exited the United Arab Emirates on October 13, 2003.\n\nWhen questioned by the Officer as to the use of the Declared Funds and the Undeclared Funds, the appellant stated that $92,000 had been loaned to him by two jewellers in Montreal for whom he intended to purchase jewellery on his trip. The appellant did not have any documentation confirming these arrangements and initially was unsure of the names of the two jewellers. Additionally, he did not have any documentation to support a withdrawal from a banking institution of any portion of the funds. Moreover, the Officer observed that the funds were not wrapped according to the method used by financial institutions. Instead, they were in mixed denominations that were out of order and were held together with elastics.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-36", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 62", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "Having regard to the circumstances surrounding the seizure of the Declared Funds and the Undeclared Funds, the Officer determined that the normal requirement that the seized funds be returned to the person from whom they were seized, subject to a prescribed penalty, was not appropriate. Rather, the Officer maintained the forfeiture of the seized funds, as permitted by subsection 18(2), on the basis that she had reasonable grounds to suspect that the seized funds were proceeds of crime or funds for use in the financing of terrorist activities. Subsection 18(2) reads as follows: 18(2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities. 18(2) Sur réception du paiement de la pénalité réglementaire, l'agent restitue au saisi ou au propriétaire légitime les espèces ou effets saisis sauf s'il soupçonne, pour des motifs raisonnables, qu'il s'agit de produits de la criminalité au sens du paragraphe 462.3(1) du Code criminel ou de fonds destinés au financement des activités terroristes.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-37", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 63", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "Subsection 462.3(1) of the Criminal Code defines proceeds of crime to mean any property obtained directly or indirectly as a result of the commission of a designated offence. That same provision defines designated offence (a “Designated Indictable Offence”) as any indictable offence under the Criminal Code and other federal statutes, other than indictable offences enumerated in section 1 of the Regulations Excluding Certain Indictable Offences from the Definition of “Designated Offence”, SOR/2002-63. A list of excluded indictable offences is reproduced in Schedule “A” to the decision of the Application Judge. The definitions of proceeds of crime and designated offence in subsection 462.3(1) of the Criminal Code read as follows: “designated offence” means (a) an indictable offence under this or any other Act of Parliament, other than an indictable offence prescribed by regulation, or (b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a); « infraction désignée » a) Soit tout acte criminel prévu à la présente loi ou une autre loi fédérale, à l’exception des actes criminels désignés par règlement; b) soit le complot ou la tentative en vue de commettre un tel acte ou le fait d’en être complice après le fait ou d’en conseiller la perpétration. “proceeds of crime” means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of (a) the commission in Canada of a designated offence, or (b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-38", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 63–64", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "« produits de la criminalité » Bien, bénéfice ou avantage qui est obtenu ou qui provient, au Canada ou à l’extérieur du Canada, directement ou indirectement : a) soit de la perpétration d’une infraction désignée; b) soit d’un acte ou d’une omission qui, au Canada, aurait constitué une infraction désignée. DECISION OF THE MINISTER\n\nOn November 19, 2003, the appellant made a request, pursuant to section 25, for a decision of the Minister as to whether he had contravened subsection 12(1). Section 25 reads as follows: 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l'article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s'il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-39", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 65–67", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In response to the appellant’s request, a written notice (the “Notice of Reasons for Action”) of the circumstances of the seizure of the Declared Funds and the Undeclared Funds, as required by subsection 26(1), was provided to the appellant. Subsections 26(1) reads as follows: 26(1) If a decision of the Minister is requested under section 25, the President shall without delay serve on the person who requested it written notice of the circumstances of the seizure in respect of which the decision is requested. 26(1) Le président signifie sans délai par écrit à la personne qui a présenté la demande visée à l’article 25 un avis exposant les circonstances de la saisie à l’origine de la demande.\n\nThe Notice of Reasons for Action described the events leading up to the maintenance of the forfeiture of the Declared Funds and the Undeclared Funds by the Officer pursuant to subsection 18(2) and concluded with a request for evidence to be submitted to demonstrate that these funds had been legitimately obtained.\n\nAs permitted by subsection 26(2), the appellant submitted evidence to the Minister, consisting of four affidavits and three character reference letters. In addition, counsel for the appellant made submissions in relation to the seizure of the funds. Subsection 26(2) reads as follows: 26(2) The person on whom a notice is served under subsection (1) may, within 30 days after the notice is served, furnish any evidence in the matter that they desire to furnish. 26(2) Le demandeur dispose de trente jours à compter de la signification de l’avis pour produire tous moyens de preuve à l’appui de ses prétentions.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-40", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 68–71", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The evidence provided by the appellant, as permitted by subsection 26(2), contradicted the information with respect to the sources of the Declared Funds and the Undeclared Funds that he had given to the Officer and sought to establish that $92,000 of these funds was actually provided by two different business associates, only one of whom was from Montreal, and that the balance came from several withdrawals from the bank account of the appellant’s jewellery business.\n\nThe three character references did not address the issue of the legitimacy of the origin of the Declared Funds and the Undeclared Funds.\n\nThe affidavits of the two business associates stated that they had provided the appellant with $92,000 in cash, from the cash sales of jewellery, for the purchase of jewellery in Dubai on their behalf. These affidavits did not contain any information with respect to the sales which allegedly generated the cash that was provided to the appellant.\n\nAn affidavit provided by the bookkeeper for the appellant’s jewellery business indicated that $37,000 of the seized funds (the balance of the seized funds after deducting the portion that had allegedly been loaned to the appellant) had been withdrawn from the bank account of the business through a series of cheques that were payable to the appellant’s wife. In his affidavit, the appellant stated that these cheques were issued for business purposes and that he received the money when the cheques were cashed.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-41", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 72–74", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In correspondence dated March 15, 2004 (the “First Notice”), a CBSA official (the “First Adjudicator”) advised the appellant that the affidavits of the two business associates did not demonstrate the legitimacy of the portion of the seized funds that those persons allegedly loaned to the appellant and invited further submissions. The First Notice contained the following statement: … Having broken the law and failed to declare, a person cannot regain currency seized as forfeit, on a reasonable suspicion under the Act, by merely telling a story that could be true. An innocent explanation as to the origin of the funds must be proven in sufficient detail and with enough credible, reliable and independent evidence to establish that no other reasonable explanation is possible. Otherwise reasonable doubts remain and the forfeiture stands.\n\nOn April 27, 2004, counsel for the appellant replied to the First Notice indicating that, in his view, an independent RCMP investigation demonstrated that the seized funds could not be linked to any terrorist financing.\n\nBy correspondence dated May 3, 2004, the First Adjudicator indicated that inquiries would be made with respect to the RCMP investigation. In addition, this correspondence reiterated the CBSA’s view (the “Second Notice”) that the affidavits of the two business associates did not adequately substantiate the legitimacy of the funds that allegedly had been loaned to the appellant and requested documentary evidence to support the legitimacy of the seized currency.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-42", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 75–77", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In correspondence dated June 18, 2004, the First Adjudicator advised the appellant that the RCMP investigation did not include a consideration of whether the seized funds were proceeds of crime, within the meaning of subsection 18(2). Once again, the appellant was put on notice (the “Third Notice”) that documentary evidence was needed in order to corroborate the affidavits of the two business associates in relation to the alleged loans.\n\nNotwithstanding the requests contained in the First Notice, the Second Notice and the Third Notice, the appellant did not provide any documentary evidence establishing the source of the funds that had allegedly been loaned by the two business associates to the appellant. Instead, counsel for the appellant asked the Minister to render the decision that had been requested by the appellant pursuant to section 25.\n\nSubsections 27(1) and (3) obligate the Minister to make a decision as to whether a contravention of subsection 12(1) has occurred and to provide written notice of the decision, including reasons, to the person who has made the request for the decision. Subsections 27(1) and (3) read as follows: 27(1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened. 27(1) Dans les quatre-vingt-dix jours qui suivent l’expiration du délai mentionné au paragraphe 26(2), le ministre décide s’il y a eu contravention au paragraphe 12(1). (3) The Minister shall, without delay after making a decision, serve on the person who requested it a written notice of the decision together with the reasons for it. (3) Le ministre signifie sans délai par écrit à la personne qui a fait la demande un avis de la décision, motifs à l’appui.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-43", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 78–79", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In the circumstances of this case, the Minister delegated her responsibility to make the decisions contemplated by sections 25, 27 and 29 to a manager in the Recourse Directorate, Admissibility Branch of the CBSA (the “Minister’s Delegate”). In reaching the decision required by subsection 27(1), the Minister’s Delegate relied, in part, on the file that had been initially prepared by the First Adjudicator and completed by another CBSA official (the “Second Adjudicator”).\n\nAfter having reviewed the evidence and submissions that had been provided by the appellant’s counsel, as well as other available materials, including the Officer’s report, the Second Adjudicator prepared a document (the “Case Synopsis and Reasons for the Decision”) that was signed by her on September 25, 2005 and by the Minister’s Delegate on October 3, 2005. That document contained the statement from the First Notice that is reproduced in paragraph 72 of these reasons.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-44", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 80", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "By correspondence dated October 6, 2005, the Minister’s Delegate advised the appellant of his decision that there had been a contravention of subsection 12(1) by the appellant, in accordance with subsections 27(1) and (3). Having reached that decision, the Minister’s Delegate, as required by subsection 29(1), also addressed the issue of whether the seized funds were to be returned to the appellant. The provisions of subsection 29(1) read as follows: 29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister shall, subject to the terms and conditions that the Minister may determine, (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada. The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it. 29.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-45", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 80–81", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) S’il décide qu’il y a eu contravention au paragraphe 12(1), le ministre, aux conditions qu’il fixe : a) soit décide de restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; b) soit décide de restituer tout ou partie de la pénalité versée en application du paragraphe 18(2); c) soit confirme la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34. Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en est informé, prend les mesures nécessaires à l’application des alinéas a) ou b).\n\nThe decision of the Minister’s Delegate under subsection 27(1) is not in dispute in this appeal. Rather, the focus of the appellant is on the decision that was made by the Minister’s Delegate under subsection 29(1).", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-46", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 82–83", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister’s Delegate decided to return the Declared Funds to the appellant pursuant to paragraph 29(1)(a) and to confirm the forfeiture of the Undeclared Funds pursuant to paragraph 29(1)(c). The Minister’s Delegate provided the following reasons in respect of his decision under subsection 29(1): Although your solicitor’s representations have been considered, mitigation has not been granted in this case. The evidence provided is not verifiable and does not substantiate the origin of the currency. Based on the totality of the evidence and the lack of verifiable evidence to support the legitimate origin of the currency, reasonable suspicion still exists. As such the currency has been held as forfeit. However, it has been decided that the declared currency ($4,000.00 Canadian and $400.00 USD) should be returned to you. [Emphasis added.]\n\nThe appellant brought an application in the Federal Court for judicial review of the decision of the Minister confirming the forfeiture of the Undeclared Funds pursuant to paragraph 29(1)(c) (the “Subsection 29(1) Decision”). DECISION OF THE FEDERAL COURT", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-47", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 84–87", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Application Judge held that section 29 is silent with respect to the principles that the Minister, or her delegate, must apply in deciding whether to confirm a forfeiture of funds that have been seized under Part 2 of the Act. The Application Judge found that, in this case, the Minister’s Delegate decided to base his Subsection 29(1) Decision upon a determination of whether the test in subsection 18(2), which was applied by the Officer, would still be met, that is to say, whether reasonable grounds to suspect that the seized currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities (“Reasonable Grounds To Suspect”) still existed at the time of the Subsection 29(1) Decision.\n\nThe Application Judge referred to the cross-examination of the Minister’s Delegate on the affidavit that he had sworn as indicating that because of his reliance on the Case Synopsis and Reasons for the Decision and the standard of proof referred to therein, he may have thought that to dispel Reasonable Grounds To Suspect, the appellant was obligated to prove an innocent explanation beyond all doubt.\n\nThe Application Judge determined that the standard of proof that is necessary to establish Reasonable Grounds To Suspect requires more than a subjective suspicion or a hunch. Instead, the Application Judge held that evidence to substantiate Reasonable Grounds To Suspect must be credible and objective.\n\nThe Application Judge then went on to state that the standard of proof referred to in the Case Synopsis and Reasons for the Decision, namely, proof beyond all doubt, was erroneous and that to dispel Reasonable Grounds To Suspect, only proof beyond a reasonable doubt is required.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-48", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 88–91", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In the circumstances, the Application Judge found that this error on the part of the Minister’s Delegate was immaterial, stating at paragraph 75: [The appellant’s] evidence failed to displace, beyond a reasonable doubt, the objective and credible evidence supporting the Minister’s Delegate’s suspicion that the Undeclared Currency was proceeds of crime. Accordingly, the Application Judge held that the error in the specification of the requisite standard of proof to dispel Reasonable Grounds To Suspect was insufficient to allow the application for judicial review to succeed.\n\nThe Application Judge also found no merit in the appellant’s argument that there are no Reasonable Grounds To Suspect that the Undeclared Funds are proceeds of crime. Moreover, the Application Judge found that the return of the Declared Funds did not contradict the confirmation of the forfeiture of the Undeclared Funds so as to render the decision of the Minister unreasonable.\n\nAccordingly, the Application Judge dismissed the application for judicial review. ISSUE\n\nThe issue in this appeal is whether the Minister’s Delegate erred in making the Subsection 29(1) Decision, in which the forfeiture of the Undeclared Funds was confirmed pursuant to paragraph 29(1)(c). ANALYSIS The Nature of the Subsection 29(1) Decision", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-49", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 92–93", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "Subsection 29(1) provides the Minister with broad discretionary powers to determine the monetary sanction, if any, that is to be imposed on a person who has been determined, pursuant to subsection 27(1), to have contravened subsection 12(1). In particular, paragraph 29(1)(a) empowers the Minister to reverse a forfeiture of seized funds, with or without a penalty, paragraph 29(1)(b) empowers the Minister to remit all or a portion of any penalty imposed under subsection 18(2) and paragraph 29(1)(c) empowers the Minister to confirm a forfeiture of seized funds. As correctly observed by the Application Judge, the basis upon which the Minister is to exercise her discretion under subsection 29(1) is not spelled out in that provision or elsewhere in the Act. Moreover, the Minister is under no obligation to provide reasons for a decision made pursuant to subsection 29(1) (see Tourki v. Canada (Minister of Public Safety and Emergency Preparedness, [2007] F.C.J. No. 685; 2007 FCA 186). The Decision Under Review\n\nIt is at this point that I must respectfully diverge from the reasons of my colleague, Pelletier J.A.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-50", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 94", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Application Judge, at paragraph 63 of her reasons, acknowledges the absence of guiding principles with respect to the basis for a decision under subsection 29(1) but goes on to find that the Minister’s Delegate adopted the test in subsection 18(2) as the basis for his subsection 29(1) decision. That paragraph reads as follows: [63] Section 29 of the Act is silent about the principles to be used by a Minister’s Delegate in deciding whether to confirm a currency forfeiture. However, the Decision makes it clear that, in this case, the Minister’s Delegate was determining whether a reasonable suspicion still existed. In other words, the Minster’s Delegate adopted for the Decision the test the Customs Officer at the airport was required to use when she declined to return the Forfeited Currency, pursuant to subsection 18(2) of the Act. That subsection provides that she must have had “reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities”. In my view, the Decision stated the correct test when it indicated that Minister’s Delegate was determining whether such reasonable grounds still existed.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-51", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 95", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "At the hearing of the appeal, counsel for the respondent confirmed that the Minister’s Delegate exercised the discretion provided in subsection 29(1) in accordance with this finding by the Application Judge. This confirmation is consistent with the position taken by counsel for the respondent in paragraphs 67 and 68 of his memorandum of fact and law. Those paragraphs are as follows: 67. In order to respond to this argument, it is important to first understand the nature of the ministerial review conducted by the Respondent, which is not a criminal prosecution. It is an administrative review of an in rem property seizure where the sole issue is whether there are reasonable grounds to suspect that the currency is proceeds of crime, not whether the person who failed to declare the currency has committed a crime. Similarly, currency may be seized and forfeited whether or not it is in fact associated with money laundering or terrorism. The test, as set out in the PCMLTFA, is only that there are reasonable grounds to suspect that the currency is proceeds of crime. 68. The exercise conducted by the Respondent decision-maker in the case at bar was to review the totality of the factual record before him and to reach a conclusion on whether or not reasonable grounds existed to suspect that the currency is proceeds of crime. This flows from the fact that the Respondent was reviewing the Customs officer’s determination that she had reasonable grounds to suspect that the currency was proceeds of crime and therefore could not return the currency to the Applicant pursuant to s. 18(2) of the PCMLTFA.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-52", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 96–98", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The adoption by the Minister’s Delegate of the Reasonable Grounds To Suspect test in subsection 18(2) is further evident from paragraphs 14 and 24 of his affidavit, the relevant portions of which read as follows: 14. In my view, this material demonstrated that there were reasonable grounds to suspect that the undeclared currency seized from the Applicant on November 10, 2003 was proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code… 24. In sum, on the basis of all of the material that was before me, with particular emphasis on the grounds set out above and taken as a whole, I concluded that it was reasonable to suspect that the unreported currency in the amount of $119,000 (Canadian) and $35 (US) was proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code.\n\nAt no stage in the proceedings has it been argued that the Minister’s Delegate did not, in fact, adopt the Reasonable Grounds To Suspect test, in subsection 18(2), as the basis upon which he exercised his discretion under subsection 29(1). Moreover, there has been no argument that the adoption of that test was an improper exercise of the discretion given to the Minister’s Delegate under subsection 29(1).\n\nI would hasten to add that, in my view, the Minister’s Delegate was not required to adopt the Reasonable Grounds To Suspect test as the basis upon which to make his Subsection 29(1) Decision. That test is not the only basis upon which a Subsection 29(1) Decision can be made. Indeed, by choosing to adopt that test, it may be that the Minister’s Delegate has set a higher standard for himself than he needed to.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-53", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 99–101", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "Accordingly, unlike my colleague Pelletier J.A., I am of the view that this appeal must proceed on the basis that the Minister’s Delegate, in fact, adopted the Reasonable Grounds To Suspect test in subsection 18(2) and that the issue is whether the Minister’s Delegate properly applied that test.\n\nIn concluding that the Minister’s Delegate applied the subsection 18(2) test by considering whether Reasonable Grounds To Suspect “still existed”, the Application Judge, in effect, found that the Minister’s Delegate was reviewing the decision of the Officer to impose the forfeiture in light of the evidence and submissions that had been provided by the appellant subsequent to the seizure of the funds. This explains the approach of the Application Judge in determining the standard of proof that was required of the appellant to “dispel” the Reasonable Grounds To Suspect, as found by the Officer.\n\nIndeed, this approach is also adopted by the appellant who takes issue with the Application Judge only to the extent that she determined the requisite standard of proof to be beyond a reasonable doubt. According to the appellant, a lower standard of proof, namely, one that lies “midway between the civil standard of proof on a balance of probabilities and the criminal standard of proof beyond a reasonable doubt”, is sufficient to “dispel” the Reasonable Grounds To Suspect that the Officer found to be present at the time of the seizure of the funds.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-54", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 102–103", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The respondent argues that the focus on the standard of proof required to “dispel” the Reasonable Grounds To Suspect that were found by the Officer is misguided. According to the respondent, the exercise that was undertaken by the Minister’s Delegate in making the Subsection 29(1) Decision was in the nature of a de novo consideration by the Minister’s Delegate of the question of whether Reasonable Grounds To Suspect existed at the time of the de novo consideration.\n\nI am inclined to accept the respondent’s characterization of the nature of the decision that was undertaken by the Minister’s Delegate. This characterization is supported by the following excerpt from the October 6, 2005 correspondence of the Minister’s Delegate: Based on the totality of the evidence and the lack of verifiable evidence to support the legitimate origin of the currency reasonable suspicion still exists. Further support is contained in paragraph 24 of the affidavit of the Minister’s Delegate, which is produced in paragraph 45 of the reasons of the Application Judge and reads as follows: 24. In sum, on the basis of all of the material that was before me, with particular emphasis on the grounds set out above and taken as a whole, I concluded that it was reasonable to suspect that the unreported currency in the amount of $119,000 (Canadian) and $35 (US) was proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-55", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 104", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, where the Minister exercises the discretion provided in subsection 29(1) by adopting the Reasonable Grounds To Suspect test in subsection 18(2) as the basis upon which to decide upon the monetary sanction that is to be imposed upon a person whose funds have been subject to forfeiture and who has been determined by the Minister to have contravened subsection 12(1), the Minister is then required to make a fresh consideration of whether, at the time of her decision, there are Reasonable Grounds To Suspect. This obligates the Minister to come to her own conclusion as to the existence of Reasonable Grounds To Suspect. In that regard, the Minister’s decision must be based upon the entirety of the record before her, which would include the evidence that was available to the officer at the time of the seizure of the funds, as well as any evidence and submissions that are provided to the Minister after that time. As such, the consideration by the Minister is not a de novo review in the sense of a trial de novo, in which the case is decided only on the new record and without regard to evidence adduced in prior proceedings (see Molson Breweries v. John Labatt Ltd., [2000] F.C.J. No. 159; [2000] 3 F.C. 145 (C.A.) at paragraph 46). Thus, in such circumstances, the Minister’s de novo consideration would necessarily entail a determination of the legal test for Reasonable Grounds To Suspect and thereafter, an application of that test to the facts before her.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-56", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 105–106", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In view of the misconception, on the part of the Application Judge, of the approach that was required to be taken, and was in fact taken, by the Minister’s Delegate in rendering his Subsection 29(1) Decision, that decision was not appropriately reviewed by the Application Judge. Accordingly, I will undertake that review. The Standard of Review\n\nIn Dunsmuir v. New Brunswick, 2008 SCC 9, Justices Bastarache and LeBel provided the following guidance, at paragraph 62: 62 In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-57", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 107–108", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Dag v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 95, [2008] F.C.J. No. 442; this Court held that the applicable standard of review of a decision of the Minister under subsection 29(1) is reasonableness. In Dag, as in this case, the Minister made the determination that the decision as to the monetary sanction that was to be imposed in light of a contravention of subsection 12(1) would be made on the basis of the application of the Reasonable Grounds To Suspect test in subsection 18(2). This is evident from paragraph 5 of the decision, which reads as follows: 5 With respect to the substantive issue which was before Blais J., we are of the view, applying this standard, that he committed no error when he held that the record allowed the Minister to conclude in the present case that there were “reasonable grounds to suspect” that the currency was “proceeds from crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities”.\n\nIt is apparent that in Dag, no issue was taken with respect to the proper interpretation of the Reasonable Grounds To Suspect element of the test in subsection 18(2).", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-58", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 109–111", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "While the question posed by subsection 18(2) is one of mixed fact and law, the proper interpretation of the Reasonable Grounds To Suspect element of that question may be seen as a legal question. In that regard, Dunsmuir informs that where a legal issue that is intertwined with factual issues can nonetheless be easily separated from those factual issues and where the legal issue is one of general law, the standard of correctness will apply in relation to that issue. In my view, both of those requirements are present with respect to the proper interpretation of Reasonable Grounds To Suspect as found in subsection 18(2). Accordingly, the issue of the proper interpretation of that phraseology not having arisen in Dag, I am of the view that the question of whether that phraseology was properly interpreted by the Minister’s Delegate in making the Subsection 29(1) Decision must be reviewed on the standard of correctness.\n\nThe application of the legal test for Reasonable Grounds To Suspect by the Minister’s Delegate to the facts that were before him is, in accordance with Dag, required to be reviewed on the standard of reasonableness. The Legal Test for Reasonable Grounds To Suspect\n\nThe Application Judge analyzed the issue of the standard of proof that is required to establish Reasonable Grounds To Suspect. She found that there must be more than a mere subjective suspicion. Instead, the Application Judge found that to substantiate Reasonable Grounds To Suspect, there must be objective and credible evidence.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-59", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 112", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "This finding of the Application Judge is consistent with the conclusion of the Supreme Court of Canada in its recent decision in R. v. Kang-Brown, [2008] S.C.J. No. 18, 2008 SCC 18. In that case, the standard of proof that is required to establish a “reasonable suspicion” is described, in paragraph 75, as one that requires objectively ascertainable facts that are capable of judicial assessment. In my view, there is little to differentiate a “reasonable suspicion” from “reasonable grounds to suspect”. Accordingly, I am of the view that the standard of proof described in Kang-Brown is an appropriate one to be applied to the determination of whether Reasonable Grounds To Suspect may be said to exist. I would hasten to add that I see no material difference between that standard of proof and the standard of proof as formulated by the Application Judge.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-60", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 113", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "The record does not demonstrate a clear and specific enunciation by the Minister’s Delegate of the appropriate standard of proof required to establish Reasonable Grounds To Suspect. However, a review of both the Case Synopsis and Reasons for the Decision and the affidavit of the Minister’s Delegate indicates that credible and objectively ascertainable evidence was sought as the basis upon which to ground the Subsection 29(1) Decision. It is clear to me that the Minister’s Delegate was looking for more than a subjective suspicion or a “hunch” as the basis for that decision. Moreover, the requests in the First Notice, the Second Notice and the Third Notice, for additional documentary support with respect to the origin of the portion of the seized funds that were allegedly loaned to the appellant, clearly demonstrate that the First Adjudicator sought credible and objectively ascertainable evidence from the appellant to include in the record upon which the Minister’s Delegate based his Subsection 29(1) Decision. Accordingly, I am of the view that the record demonstrates a sufficient awareness on the part of the Minister’s Delegate of the legal standard that is necessary to establish Reasonable Grounds To Suspect. As such, the Subsection 29(1) Decision is unassailable in terms of whether it was based upon a correct understanding of the appropriate legal standard that underpins the Reasonable Grounds To Suspect test.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-61", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 114–116", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In light of the standard of proof that has been determined, Reasonable Grounds To Suspect may be found where there are objectively ascertainable facts indicating that the seized funds are for use in the financing of terrorist activities. Terrorist activity is defined in section 2 as having the same meaning as in subsection 83.01(1) of the Criminal Code. Alternatively, Reasonable Grounds To Suspect may be found where objectively ascertainable facts indicate that the seized funds are proceeds of crime, within the meaning of subsection 462.3(1) of the Criminal Code. Both of these possibilities were considered by the Minister’s Delegate, as indicated in paragraph 9 of his affidavit, but the Subsection 29(1) Decision was ultimately based upon a reasonable suspicion that the seized funds were proceeds of crime.\n\nThe definition of proceeds of crime provides an expansive, although not unlimited, scope as to what may be considered a criminally acquired asset. The Designated Indictable Offences which may give rise to proceeds of crime include a number of the more serious offences under the Criminal Code and other federal statutes, such as illegal drug trafficking, bribery, fraud, robbery, counterfeit money, stock manipulation and money laundering (where the Crown proceeds by way of indictment).\n\nIt is clear that not all crimes or offences are Designated Indictable Offences. Importantly, it is only those crimes and offences that are Designated Indictable Offences that have the requisite degree of criminality that will permit seized funds to be characterized as proceeds of crime for the purposes of the Reasonable Grounds To Suspect test in subsection 18(2).", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-62", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 117–118", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus, the record before the Minister or her delegate may indicate that the seized funds are associated with crime, albeit not necessarily a Designated Indictable Offence. In my view, the determination of whether there are Reasonable Grounds To Suspect that seized funds are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code can be approached, where it is helpful to do so, by breaking the analysis into two parts. Viewed in this manner, the analysis involves a consideration of whether there is a reasonable suspicion that the seized funds are associated with criminality, and that such criminality is a Designated Indictable Offence. I would add that this approach is equally applicable to an officer who is obligated to consider the Reasonable Grounds To Suspect test in subsection 18(2) as it is to the Minister, or her delegate, where that test is adopted for the purposes of a Subsection 29(1) Decision.\n\nIt is apparent that the second part of this approach is the more difficult of the two. Evidence linking the seized funds to criminality in general is likely to be available. However, evidence indicating a linkage between the seized funds and a particular Designated Indictable Offence is less likely to be available.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-63", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 119–121", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In my view, requiring an officer or the Minister to establish a direct linkage between the seized funds and the commission of a specific Designated Indictable Offence, in order to meet the Reasonable Grounds To Suspect test, imposes too onerous a standard. In the context of forfeitures of funds under certain provisions of the Criminal Code, it has been observed that where the Crown is unable to directly establish a specific offence as the source of alleged proceeds of crime, a forfeiture of the funds may nonetheless be upheld where an appropriate inference that the funds are connected to the particular offence or class of offences can be drawn from the facts. See for example R. v. Shah, [1992] B.C.J. No. 2716 (Prov. Ct.); R. v. Clymore, [1992] B.C.J. No. 1705, 74 C.C.C. (3d) 217 (S.C.); R. v. Hicks, [2000] B.C.J. No. 2653 (Prov. Ct. (Crim. Div.)).\n\nIn my view, it is entirely appropriate to rely upon properly drawn inferences that seized funds that have been derived from some type of criminality have been derived from a Designated Indictable Offence, as required by the Reasonable Grounds To Suspect test in subsection 18(2). Application of the Legal Test\n\nThe question at this point is whether, in accordance with Dag, the Subsection 29(1) Decision of the Minister’s Delegate is reasonable.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-64", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 122–123", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "As stated in the October 6, 2005 correspondence, in the Subsection 29(1) Decision the Minister’s Delegate determined that a reasonable suspicion existed since the evidence provided by the appellant after the seizure of the funds was not verifiable and did not point to a legitimate origin of the seized funds. The Minister’s Delegate expanded upon this reasoning in paragraph 24 of his affidavit that is reproduced in paragraphs 96 and 103 of these reasons, wherein the Minister’s Delegate stated that he had concluded, based on all of the material in the record, that it was reasonable to suspect that the Undeclared Funds were proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code.\n\nAs explained in his affidavit, the relevant portions of which are reproduced in paragraph 45 of the reasons of the Application Judge, the following facts relied on by the Minister’s Delegate in arriving at the Subsection 29(1) Decision pointed to a reasonable suspicion that the Undeclared Funds were associated with criminality, in accordance with the first stage of the analysis as described above: (a) the appellant had attempted to export a large amount of funds and had chosen to report a small fraction of this amount to the Officer; (b) the appellant had provided vague answers in response to the Officer’s questions; (c) further to his request for a ministerial decision, the appellant provided an explanation as to the origin of the seized funds that differed from that originally given to the Officer; and (d) the ultimate explanation provided by the appellant in respect of the origin of the seized funds was not corroborated by sufficient supporting documentation.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-65", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 124", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "With respect to the first ground, the Minister’s Delegate was of the view that the appellant’s behaviour in choosing not to report the Undeclared Funds, when explicitly questioned by the Officer as to the amount of funds that he was travelling with, was suspicious, particularly since the appellant was a frequent international traveller who would have been aware of currency reporting requirements. The Minister’s Delegate pointed to the fact that individuals wishing to transfer large amounts of legitimate funds between countries usually prefer to use the services of financial institutions because such transactions are faster, cheaper and more secure than bulk cash transportation. Additionally, the Minister’s Delegate commented that, unlike American currency, Canadian currency is not readily used or accepted in many other countries. For that reason, the Minister’s Delegate found it implausible that large quantities of legitimate Canadian currency would have been brought by a traveller to a country such as the United Arab Emirates in order to conduct legitimate business.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-66", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 125", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "With respect to the second ground, the Minister’s Delegate referred to the fact that when asked by the Officer to explain the origin of the Declared Funds and the Undeclared Funds, the appellant initially advised that he was unsure of the identities of the individuals who had given him the currency and only later produced the names of two business associates in Montreal who had provided him with $92,000 to purchase jewellery. Furthermore, when questioned by the Officer, the appellant had “sweat pouring down his face” and was visibly nervous. According to the Minister’s Delegate, for the rare international traveller who transports large sums of legitimately earned currency destined for legal purposes it can be expected that he or she will be able to clearly explain both the source and intended use of that currency, whereas an inability to clearly provide such an explanation suggests an awareness that the currency was not earned through legitimate means or is intended for illicit use.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-67", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "para 126", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "With respect to the third ground, the Minister’s Delegate referred to the fact that four months after the seizure of the Declared Funds and the Undeclared Funds, the appellant provided an explanation for the origin of the funds that contradicted the explanation that he had given to the Officer. The appellant sought to establish that $92,000 had actually been provided by two individuals that differed from those initially identified and only one of whom was from Montreal, and, for the first time, the appellant explained that the balance of the seized funds had been withdrawn from the bank account of his jewellery business. The Minister’s Delegate was of the view that the fact that the appellant provided a new explanation for the origin of the seized funds which differed from that provided at the time of the forfeiture raised a suspicion that the funds were illicit.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-68", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 127–128", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "With respect to the fourth ground, the Minister’s Delegate referred to the fact that while the affidavits of the two business associates maintained that they had provided the appellant with $92,000 to purchase certain vaguely described jewellery in the United Arab Emirates on their behalf, neither had provided contracts, receipts or any other documentation to support the existence of such a significant financial obligation. The Minister’s Delegate did not find it plausible that legitimate businesses seeking to purchase $92,000 worth of jewellery in a foreign country would do so by entrusting another person with currency in that amount without documenting this arrangement in some form and by providing vague instructions about the type and quantity of jewellery to buy. Moreover, while copies of cheques and bank statements were provided in the affidavit of the bookkeeper to show that six cheques totalling $37,000 made payable to the appellant’s wife were drawn against the bank account of the jewellery business in September and early November 2003, the Minister’s Delegate stated that there was no indication that the balance of the seized funds had indeed originated from these withdrawals. According to the Minister’s Delegate, the fact that the appellant chose to provide an implausible and unsubstantiated explanation for the origin of the seized funds rendered it reasonable to suspect that the currency was in fact illicit.\n\nAs previously indicated, it is not sufficient to simply establish a reasonable suspicion that the Undeclared Funds were associated with criminality. The test for Reasonable Grounds To Suspect in subsection 18(2) also requires a reasonable suspicion that such criminality is a Designated Indictable Offence.", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-36092-69", - "doc_type": "caselaw", - "act_code": "2008 FCA 255", - "act_short": "Sellathurai", - "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", - "marginal_note": "paras 129–131", - "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", - "part": "Federal Court of Appeal", - "division": "", - "text": "In this case, the Minister’s Delegate concluded that it was reasonable to suspect that the Undeclared Funds were proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code. This demonstrates that the Minister’s Delegate determined that it was reasonable to suspect that the Undeclared Funds were the proceeds of a Designated Indictable Offence. In my view, the fact that the Undeclared Funds consisted of $119,000 CAD in mixed denominations that were out of order and held together with elastics, supports a reasonable inference that the criminality reasonably suspected of being associated with the Undeclared Funds was not a minor offence but rather an indictable offence that constituted a Designated Indictable Offence. The reasonableness of such an inference is supported by the failure of the appellant to provide any credible and objective evidence of any legitimate source for the Undeclared Funds.\n\nIn my view, the record before the Minister’s Delegate was sufficient for him to reach his decision that there are Reasonable Grounds To Suspect that the Undeclared Funds are proceeds of crime. Accordingly, I am satisfied that the Subsection 29(1) Decision of the Minister’s Delegate, upholding the forfeiture of the Undeclared Funds, is reasonable. DISPOSITION\n\nFor the foregoing reasons, I would dismiss the appeal with costs. \"C. Michael Ryer\" J.A. FEDERAL COURT OF APPEAL", - "current_to": "2008-09-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" - }, - { - "id": "fca-35921-1", - "doc_type": "caselaw", - "act_code": "2008 FCA 95", - "act_short": "Dag", - "act_name": "Dag v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Dag v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 95", - "marginal_note": "paras 1–5", - "heading": "PCMLTFA currency forfeiture; the limited scope of review of the Minister's decision and the privative clause", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal from the judgment of Blais J. of the Federal Court (2007 FC 427) dismissing the appellants’ application for judicial review of the seizure of $125,275 CAN at the Dorval International Airport, Montréal, Quebec by Canadian Customs agents.\n\nThe appellants allege that Blais J. committed a number of reviewable errors in confirming the Respondent Minister’s decision forfeiting the currencies seized in favour of Her Majesty.\n\nWe are satisfied that Blais J. committed no error which would merit our intervention.\n\nWith respect to the standard of review, there was a debate in the past about whether the standard applicable to the Minister’s decision was patent unreasonableness or reasonableness simpliciter. Given the recent pronouncement of the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9, which collapsed those two standards into one, and given the existence of the strong privative clause which appears in section 24 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the Act), we are satisfied that the applicable standard in reviewing the Minister’s decision under section 29 of the Act is reasonableness.\n\nWith respect to the substantive issue which was before Blais J., we are of the view, applying this standard, that he committed no error when he held that the record allowed the Minister to conclude in the present case that there were “reasonable grounds to suspect” that the currency was “proceeds from crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities”.", - "current_to": "2008-03-10", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35921/index.do" - }, - { - "id": "fca-35921-2", - "doc_type": "caselaw", - "act_code": "2008 FCA 95", - "act_short": "Dag", - "act_name": "Dag v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Dag v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 95", - "marginal_note": "paras 6–9", - "heading": "PCMLTFA currency forfeiture; the limited scope of review of the Minister's decision and the privative clause", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellants also allege that Blais J. erred in conducting a fresh examination of the evidence. With respect, we find no error in the manner in which Blais J. conducted his analysis. He supported the conclusion reached by the Minister on the basis of the specific points noted by the Minister’s officer in his report as well as on the basis of other elements in the record which pointed in the same direction, something which he was entitled to do.\n\nWith respect to the allegation that the appellants’ right to procedural fairness was breached, both by reason of the failure of the Minister to provide him with the recommendations of his officer and the insufficiency of the reasons, we note that the appellants were fully informed of the Minister’s case against them and were given ample opportunity to respond (Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72, at para. 26). We stress in this regard that the appellants have yet to provide any explanation for the fact that the bulk of the currency was concealed in a pair of stockings wrapped around Ms. Yas Dagg’s waist.\n\nWe are also satisfied that these alleged breaches would have had no consequence on the Minister’s decision given counsel’s candid admission that no new evidence would have been adduced. In our respectful view, the “new spin” which she would have given to the evidence, as she described it before us, would not have changed the outcome.\n\nThe appeal will be dismissed with costs. “Marc Noël” J.A. FEDERAL COURT OF APPEAL", - "current_to": "2008-03-10", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35921/index.do" - }, - { - "id": "fca-35595-1", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 1–3", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "This is an appeal from the decision of the Federal Court (Harrington J.) (2006 FC 50) dismissing the action brought by the appellant, Mr. Tourki, under subsection 30(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the Act). Harrington J. held, inter alia, that in an action under section 30 of the Act, the Federal Court has no jurisdiction to review the decision of the Minister of Public Safety and Emergency Preparedness (the Minister) to confirm that currency seized under the Act is forfeited, the appropriate procedure being an application for judicial review. Facts\n\nOn July 5, 2003, the appellant boarded a flight from Montréal to Paris. The private security corporation that was responsible for the security checkpoint had informed customs that Mr. Tourki had told them that his briefcase contained $25,000 in currency from the sale of an automobile. Before the plane left, two officers asked Mr. Tourki to disembark. When his person and baggage were searched, a briefcase containing banknotes totalling $102,642.33 was found. The notes were seized as forfeit by a customs officer. The Minister subsequently confirmed the forfeiture.\n\nThe appellant brought an action under section 30 of the Act. He challenged the Minister's decision that the appellant had violated section 12 of the Act and the Minister's decision to confirm the forfeiture of the notes. The appellant also challenged the validity of sections 12, 15, 16, 18, 19 and 22 to 29 of the Act on the ground that they were inconsistent with sections 7, 8 and 11(d) of the Canadian Charter of Rights and Freedoms (the Charter).", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-2", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 4", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "The trial judge dismissed the action. He held that, in an action under section 30 of the Act, the Federal Court does not have jurisdiction to review the Minister's decision to confirm the forfeiture of the currency. In addition, the trial judge was of the opinion that the appellant had violated section 12 of the Act by failing to report to customs the exportation of money of a value greater than $10,000.00. He also held that the Act did not violate the rights guaranteed by sections 7, 8 and 11(d) of the Charter. Relevant Legislation", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-3", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 5", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "I will first set out the relevant sections of the Act. Object 3. The object of this Act is (a) to implement specific measures to detect and deter money laundering and the financing of terrorist activities and to facilitate the investigation and prosecution of money laundering offences and terrorist activity financing offences, including Objet 3. La présente loi a pour objet : a) de mettre en œuvre des mesures visant à détecter et décourager le recyclage des produits de la criminalité et le financement des activités terroristes et à faciliter les enquêtes et les poursuites relatives aux infractions de recyclage des produits de la criminalité et aux infractions de financement des activités terroristes, notamment : (i) establishing record keeping and client identification requirements for financial services providers and other persons or entities that engage in businesses, professions or activities that are susceptible to being used for money laundering or the financing of terrorist activities, (i) imposer des obligations de tenue de documents et d’identification des clients aux fournisseurs de services financiers et autres personnes ou entités qui se livrent à l’exploitation d’une entreprise ou à l’exercice d’une profession ou d’activités susceptibles d’être utilisées pour le recyclage des produits de la criminalité ou pour le financement des activités terroristes, (ii) requiring the reporting of suspicious financial transactions and of cross-border movements of currency and monetary instruments, and (ii) établir un régime de déclaration obligatoire des opérations financières douteuses et des mouvements transfrontaliers d’espèces et d’effets, (iii) establishing an agency that is responsible for dealing with reported and other information; (iii) constituer un organisme", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-4", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 5", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "chargé de l’examen de renseignements, notamment ceux portés à son attention en application du sous-alinéa (ii); (b) to respond to the threat posed by organized crime by providing law enforcement officials with the information they need to deprive criminals of the proceeds of their criminal activities, while ensuring that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves; and b) de combattre le crime organisé en fournissant aux responsables de l’application de la loi les renseignements leur permettant de priver les criminels du produit de leurs activités illicites, tout en assurant la mise en place des garanties nécessaires à la protection de la vie privée des personnes à l’égard des renseignements personnels les concernant; (c) to assist in fulfilling Canada’s international commitments to participate in the fight against transnational crime, particularly money laundering, and the fight against terrorist activity. c) d’aider le Canada à remplir ses engagements internationaux dans la lutte contre le crime transnational, particulièrement le recyclage des produits de la criminalité, et la lutte contre les activités terroristes. Currency and monetary instruments 12. (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. . . . Déclaration 12. (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l’agent, conformément aux règlements, l’importation ou l’exportation des espèces ou effets d’une valeur égale ou supérieure au montant réglementaire.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-5", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 5", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "[…] (3) Currency or monetary instruments shall be reported under subsection (1) (3) Le déclarant est, selon le cas : (a) in the case of currency or monetary instruments in the actual possession of a person arriving in or departing from Canada, or that form part of their baggage if they and their baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; . . . a) la personne ayant en sa possession effective ou parmi ses bagages les espèces ou effets se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada ou a quitté le pays ou la personne qui, dans les circonstances réglementaires, est responsable du moyen de transport; […] Seizure and forfeiture 18. (1) If an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments. Saisie et confiscation 18. (1) S’il a des motifs raisonnables de croire qu’il y a eu contravention au paragraphe 12(1), l’agent peut saisir à titre de confiscation les espèces ou effets. (2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-6", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 5", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "(2) Sur réception du paiement de la pénalité réglementaire, l’agent restitue au saisi ou au propriétaire légitime les espèces ou effets saisis sauf s’il soupçonne, pour des motifs raisonnables, qu’il s’agit de produits de la criminalité au sens du paragraphe 462.3(1) du Code criminel ou de fonds destinés au financement des activités terroristes. (3) An officer who seizes currency or monetary instruments under subsection (1) shall (3) L’agent qui procède à la saisie-confiscation prévue au paragraphe (1) : (a) if they were not imported or exported as mail, give the person from whom they were seized written notice of the seizure and of the right to review and appeal set out in sections 25 and 30; a) donne au saisi, dans le cas où les espèces ou effets sont importés ou exportés autrement que par courrier, un avis écrit de la saisie et du droit de révision et d’appel établi aux articles 25 et 30; (b) if they were imported or exported as mail and the address of the exporter is known, give the exporter written notice of the seizure and of the right to review and appeal set out in sections 25 and 30; and b) donne à l’exportateur, dans le cas où les espèces ou effets sont importés ou exportés par courrier et son adresse est connue, un avis écrit de la saisie et du droit de révision et d’appel établi aux articles 25 et 30; (c) take the measures that are reasonable in the circumstances to give notice of the seizure to any person whom the officer believes on reasonable grounds is entitled to make an application under section 32 in respect of the currency or monetary instruments.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-7", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 5", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "c) prend les mesures convenables, eu égard aux circonstances, pour aviser de la saisie toute personne dont il croit, pour des motifs raisonnables, qu’elle est recevable à présenter, à l’égard des espèces ou effets saisis, la requête visée à l’article 32. Power to call in aid 19. An officer may call on other persons to assist the officer in exercising any power of search, seizure or retention that the officer is authorized under this Part to exercise, and any person so called on is authorized to exercise the power. Main-forte 19. L’agent peut requérir main-forte pour se faire assister dans l’exercice des pouvoirs de fouille, de rétention ou de saisie que lui confère la présente partie. Toute personne ainsi requise est autorisée à exercer ces pouvoirs. Recording of reasons for decision 19.1 If an officer decides to exercise powers under subsection 18(1), the officer shall record in writing reasons for the decision. . . . Enregistrement des motifs 19.1 L’agent qui décide d’exercer les attributions conférées par le paragraphe 18(1) est tenu de consigner par écrit les motifs à l’appui de sa décision. […] When forfeiture under s. 14(5) 22. (1) An officer who retains currency or monetary instruments forfeited under subsection 14(5) shall send the currency or monetary instruments to the Minister of Public Works and Government Services. Confiscation aux termes du paragraphe 14(5) 22. (1) En cas de confiscation aux termes du paragraphe 14(5) des espèces ou effets retenus, l’agent les remet au ministre des Travaux publics et des Services gouvernementaux.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-8", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 5", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "(2) An officer who seizes currency or monetary instruments or is paid a penalty under subsection 18(2) shall send the currency or monetary instruments or the penalty, as the case may be, to the Minister of Public Works and Government Services. (2) En cas de saisie d’espèces ou d’effets ou de paiement d’une pénalité réglementaire aux termes du paragraphe 18(2), l’agent les remet au ministre des Travaux publics et des Services gouvernementaux. Time of forfeiture 23. Subject to subsection 18(2) and sections 25 to 31, currency or monetary instruments seized as forfeit under subsection 18(1) are forfeited to Her Majesty in right of Canada from the time of the contravention of subsection 12(1) in respect of which they were seized, and no act or proceeding after the forfeiture is necessary to effect the forfeiture. Moment de la confiscation 23. Sous réserve du paragraphe 18(2) et des articles 25 à 31, les espèces ou effets saisis en application du paragraphe 18(1) sont confisqués au profit de Sa Majesté du chef du Canada à compter de la contravention au paragraphe 12(1) qui a motivé la saisie. La confiscation produit dès lors son plein effet et n’est assujettie à aucune autre formalité. Review of forfeiture 24. The forfeiture of currency or monetary instruments seized under this Part is final and is not subject to review or to be set aside or otherwise dealt with except to the extent and in the manner provided by sections 25 to 30. Conditions de révision 24. La confiscation d’espèces ou d’effets saisis en vertu de la présente partie est définitive et n’est susceptible de révision, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues aux articles 25 à 30. Request for Minister's decision 25.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-9", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 5", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. Demande de révision 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l’article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s’il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l’agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. Notice of President 26. (1) If a decision of the Minister is requested under section 25, the President shall without delay serve on the person who requested it written notice of the circumstances of the seizure in respect of which the decision is requested. Signification du président 26. (1) Le président signifie sans délai par écrit à la personne qui a présenté la demande visée à l’article 25 un avis exposant les circonstances de la saisie à l’origine de la demande. (2) The person on whom a notice is served under subsection (1) may, within 30 days after the notice is served, furnish any evidence in the matter that they desire to furnish. (2) Le demandeur dispose de trente jours à compter de la signification de l’avis pour produire tous moyens de preuve à l’appui de ses prétentions. Decision of the Minister 27.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-10", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 5", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "(1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened. Décision du ministre 27. (1) Dans les quatre-vingt-dix jours qui suivent l’expiration du délai mentionné au paragraphe 26(2), le ministre décide s’il y a eu contravention au paragraphe 12(1). (2) If charges are laid with respect to a money laundering offence or a terrorist activity financing offence in respect of the currency or monetary instruments seized, the Minister may defer making a decision but shall make it in any case no later than 30 days after the conclusion of all court proceedings in respect of those charges. (2) Dans le cas où des poursuites pour infraction de recyclage des produits de la criminalité ou pour infraction de financement des activités terroristes ont été intentées relativement aux espèces ou effets saisis, le ministre peut reporter la décision, mais celle-ci doit être prise dans les trente jours suivant l’issue des poursuites. (3) The Minister shall, without delay after making a decision, serve on the person who requested it a written notice of the decision together with the reasons for it. (3) Le ministre signifie sans délai par écrit à la personne qui a fait la demande un avis de la décision, motifs à l’appui. If there is no contravention 28. If the Minister decides that subsection 12(1) was not contravened, the Minister of Public Works and Government Services shall, on being informed of the Minister’s decision, return the penalty that was paid, or the currency or monetary instruments or an amount of money equal to their value at the time of the seizure, as the case may be. Cas sans contravention 28.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-11", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 5", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Si le ministre décide qu’il n’y a pas eu de contravention au paragraphe 12(1), le ministre des Travaux publics et des Services gouvernementaux, dès qu’il est informé de la décision du ministre, restitue la valeur de la pénalité réglementaire, les espèces ou effets ou la valeur de ceux-ci au moment de la saisie, selon le cas. If there is a contravention 29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister shall, subject to the terms and conditions that the Minister may determine, Cas de contravention 29. (1) S’il décide qu’il y a eu contravention au paragraphe 12(1), le ministre, aux conditions qu’il fixe : (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; a) soit décide de restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or b) soit décide de restituer tout ou partie de la pénalité versée en application du paragraphe 18(2); (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada. c) soit confirme la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-12", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 5", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it. Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en est informé, prend les mesures nécessaires à l’application des alinéas a) ou b). (2) The total amount paid under paragraph (1)(a) shall, if the currency or monetary instruments were sold or otherwise disposed of under the Seized Property Management Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the currency or monetary instruments. (2) En cas de vente ou autre forme d’aliénation des espèces ou effets en vertu de la Loi sur l’administration des biens saisis, le montant de la somme versée en vertu de l’alinéa (1)a) ne peut être supérieur au produit éventuel de la vente ou de l’aliénation, duquel sont soustraits les frais afférents exposés par Sa Majesté; à défaut de produit de l’aliénation, aucun paiement n’est effectué. Appeal to Federal Court 30. (1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant. Cour fédérale 30. (1) La personne qui a présenté une demande en vertu de l’article 25 peut, dans les quatre-vingt-dix jours suivant la communication de la décision, en appeler par voie d’action devant la Cour fédérale à titre de demandeur, le ministre étant le défendeur.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-13", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 5–6", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "(2) The Federal Courts Act and the rules made under that Act that apply to ordinary actions apply to actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), avec les adaptations nécessaires occasionnées par les règles propres à ces actions. (3) The Minister of Public Works and Government Services shall give effect to the decision of the Court on being informed of it. [Emphasis added.] (3) Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en a été informé, prend les mesures nécessaires pour donner effet à la décision de la Cour. [Je souligne.] Standard of Review\n\nThe jurisdiction of the Federal Court under section 30 of the Act is a question of statutory construction that is reviewable on the correctness standard. The question of whether the appellant contravened subsection 12(1) of the Act is a question of mixed fact and law that is reviewable on the palpable and overriding error standard: Housen v. Nikolaisen, [2002] 2 S.C.R. 235. Jurisdiction of the Federal Court under Section 30 of the Act", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-14", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 7–9", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Section 24 of the Act contains the following privative clause: Review and Appeal Review of forfeiture 24. The forfeiture of currency or monetary instruments seized under this Part is final and is not subject to review or to be set aside or otherwise dealt with except to the extent and in the manner provided by sections 25 to 30. Révision et appel Conditions de révision 24. La confiscation d’espèces ou d’effets saisis en vertu de la présente partie est définitive et n’est susceptible de révision, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues aux articles 25 à 30.\n\nThat section provides that the forfeiture of currency seized may be reviewed by way of an action under section 30 of the Act. The English version of section 24 is also very clear on this point.\n\nThe word \"forfeiture\" (\"confiscation\") means, in law, \"a divestiture of specific property without compensation\" (Black’s Law Dictionary, 8th ed. 2004, p. 667). That definition was cited by the Supreme Court of Canada in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867 at paragraph 44, which dealt with the word \"forfeiture\" (\"confiscation\") in subsection 72(1) of the Fisheries Act, R.S.C. 1985, c. F-14.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-15", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 10", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Section 30 of the Act, however, provides as follows: Appeal to Federal Court 30. (1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant. Cour fédérale 30. (1) La personne qui a présenté une demande en vertu de l’article 25 peut, dans les quatre-vingt-dix jours suivant la communication de la décision, en appeler par voie d’action devant la Cour fédérale à titre de demandeur, le ministre étant le défendeur. (2) The Federal Courts Act and the rules made under that Act that apply to ordinary actions apply to actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), avec les adaptations nécessaires occasionnées par les règles propres à ces actions. (3) The Minister of Public Works and Government Services shall give effect to the decision of the Court on being informed of it. [Emphasis added.] (3) Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en a été informé, prend les mesures nécessaires pour donner effet à la décision de la Cour. [Je souligne.]", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-16", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 11", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "That section allows anyone who has made a request under section 25 to appeal by way of an action before the Federal Court in which the person is the plaintiff, within 90 days \"after being notified of the decision\". The Act does not specify which decision. Subsection 30(1), however, refers to a request under section 25, which provides as follows: Request for Minister's decision 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. [Emphasis added.] Demande de révision 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l’article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s’il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l’agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. [Je souligne.]", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-17", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 12–13", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Section 25 refers to the decision of the Minister as to whether subsection 12(1) of the Act was contravened. It is therefore that decision that is at issue in subsection 30(1). The Minister makes that decision under section 27 of the Act, which provides: Decision of the Minister 27. (1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened. Décision du ministre 27. (1) Dans les quatre-vingt-dix jours qui suivent l’expiration du délai mentionné au paragraphe 26(2), le ministre décide s’il y a eu contravention au paragraphe 12(1). (2) If charges are laid with respect to a money laundering offence or a terrorist activity financing offence in respect of the currency or monetary instruments seized, the Minister may defer making a decision but shall make it in any case no later than 30 days after the conclusion of all court proceedings in respect of those charges. (2) Dans le cas où des poursuites pour infraction de recyclage des produits de la criminalité ou pour infraction de financement des activités terroristes ont été intentées relativement aux espèces ou effets saisis, le ministre peut reporter la décision, mais celle-ci doit être prise dans les trente jours suivant l’issue des poursuites. (3) The Minister shall, without delay after making a decision, serve on the person who requested it a written notice of the decision together with the reasons for it. [Emphasis added.] (3) Le ministre signifie sans délai par écrit à la personne qui a fait la demande un avis de la décision, motifs à l’appui. [Je souligne.]\n\nThere is no doubt that the action that may be brought relates to the decision made by the Minister under section 27.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-18", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 14", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "If the Minister decides that subsection 12(1) of the Act was contravened, the Minister must then, on his own initiative, make another decision. Section 29 provides as follows: If there is a contravention 29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister shall, subject to the terms and conditions that the Minister may determine, Cas de contravention 29. (1) S’il décide qu’il y a eu contravention au paragraphe 12(1), le ministre, aux conditions qu’il fixe : (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; a) soit décide de restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada. c) soit confirme la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34. The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it. Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en est informé, prend les mesures nécessaires à l’application des alinéas a) ou b).", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-19", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 14–15", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "(2) The total amount paid under paragraph (1)(a) shall, if the currency or monetary instruments were sold or otherwise disposed of under the Seized Property Management Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the currency or monetary instruments. [Emphasis added.] (2) En cas de vente ou autre forme d’aliénation des espèces ou effets en vertu de la Loi sur l’administration des biens saisis, le montant de la somme versée en vertu de l’alinéa (1)a) ne peut être supérieur au produit éventuel de la vente ou de l’aliénation, duquel sont soustraits les frais afférents exposés par Sa Majesté; à défaut de produit de l’aliénation, aucun paiement n’est effectué. [Je souligne.]\n\nIs this second decision also covered by section 30?", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-20", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 16", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437, [2005] F.C.J. No. 1783 (QL), Layden-Stevenson J. answered this question in the negative. She stated, at paragraphs 35 and 37: [35] The decisions of the Minister pursuant to sections 27 and 29 are discrete decisions. One deals with contravention; the other deals with penalty and forfeit. Section 27 stipulates that the Minister shall decide whether subsection 12(1), i.e. the requirement to report, was contravened. The wording is unequivocal and leaves no room for doubt. Section 29 provides that, in circumstances where the Minister determines that there was a failure to report, the Minister is to review the quantum of the sanction imposed by the customs official under subsection 18(2), i.e. full forfeiture or a penalty ranging from $250 to $5,000. The Minister will either confirm the customs official's determination with respect to sanction or reduce it to some lesser penalty. [35] Les décisions rendues par le ministre en application des articles 27 et 29 sont des décisions distinctes. L’une a trait à la contravention, tandis que l’autre porte sur la pénalité et la confiscation. L’article 27 énonce que le ministre doit décider s’il y a eu contravention au paragraphe 12(1), c’est-à-dire à l’obligation de déclarer les espèces ou effets. Le libellé est non équivoque et ne laisse aucun doute quant à sa signification. L’article 29 prévoit que, dans le cas où le ministre détermine que la personne a négligé de faire la déclaration requise, le ministre doit décider si le montant de la pénalité imposée par l’agent des douanes en application du paragraphe 18(2) était approprié, à savoir la confiscation entière des espèces ou une pénalité allant de 250 à 5 000 $.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-21", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 16", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Le ministre peut confirmer la décision de l’agent des douanes eu égard à la pénalité ou ordonner la restitution d’une partie plus ou moins importante de celle-ci. . . . […] [37] There is no ambiguity in the language. The Act authorizes an appeal in relation to a decision of the Minister under section 25. Section 25 relates only to a decision as to whether subsection 12(1) was contravened (the provision that imposes the obligation to report). It necessarily follows that the references to \"a decision\" and \"the decision\" in subsection 30(1) refer to the Minister's determination under section 27 of the Act. In my view, it cannot reasonably be construed in any other way. Consequently, the Federal Court's jurisdiction, pursuant to section 30 of the Act, is limited to reviewing the decision under section 27 of the Act. That decision is with respect to whether or not there was a contravention of the Act under subsection 12(1). [37] Le libellé des dispositions est clair. La Loi permet d’interjeter appel de la décision du ministre fondée sur l’article 25. Cet article vise uniquement une décision sur la question de savoir s’il y a eu contravention au paragraphe 12(1), qui énonce l’obligation de faire une déclaration. Il s’ensuit que les termes « une demande » et « la décision » employés à l’article 30 renvoient à la décision du ministre en application de l’article 27. À mon avis, il s’agit de la seule interprétation raisonnable. La compétence de la Cour fédérale en vertu de l’article 30 de la Loi est donc restreinte à la révision de la décision rendue en application de l’article 27 de la Loi. Cette décision vise à déterminer s’il y a eu contravention au paragraphe 12(1).", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-22", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 17–19", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "I am of the same opinion. The distinction she made between a decision under section 27 (the contravention or report) and a decision under section 29 (the penalty and forfeiture) is, as she demonstrated, based on the case law of this Court dealing with the seizure review and appeal mechanism provided for in the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), a mechanism similar to what is found in the Act (see Time Data Recorder International Ltd v. M.N.R., [1997] F.C.J. No. 475 (C.A.)(QL), affirming [1993] F.C.J. No. 768 (T.D.)(QL); Nerguizian v. M.N.R., [1996] F.C.J. No. 866 (T.D.)(QL); He v. Canada, [2000] F.C.J. No. 93 (T.D.)(QL).\n\nAccordingly, any decision relating to a penalty and seizure cannot be challenged by way of an action under section 30 of the Act. The appropriate remedy is an application for judicial review under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7.\n\nThe respondent drew our attention to the Act to amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the Income Tax Act and to make a consequential amendment to another Act, S.C. 2006, c. 12, sections 14 and 16 of which, inter alia, came into force on February 10, 2007 (Order in Council P.C. 2007-0142 (Registration SI/20-07-18)). Those amendments are not effective retroactively and are not relevant for the purposes of this appeal. It is not for the Court, in the context of this case, to make pronouncements on the effect of the amendments for the future. This Court commented on them in Minister of Public Safety and Emergency Preparedness v. Pham, 2007 FCA 141, [2007] F.C.J. No. 496 (QL) (see paragraph 23). Subsection 12(1) of the Act", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-23", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 20–23", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant argues that he has not contravened subsection 12(1) of the Act. He says, and customs officer J.C. Prémont acknowledged at the hearing before the trial judge, that he had signed a declaration before leaving the airport in the early hours of July 6, 2003.\n\nThe trial judge clearly took note of that statement. He nonetheless held that the form signed by Mr. Tourki did not constitute a report under subsection 12(1) of the Act. It was too late to do so, because he was sitting on a plane on the tarmac when he was intercepted.\n\nThe trial judge did not err in deciding that the Minister was correct in determining that the appellant had contravened subsection 12(1) of the Act. Connection between a Forfeiture and a Declaration\n\nOne of the objects of the Act is to require the reporting of suspicious financial transactions and of cross-border movements of currency and monetary instruments (subparagraph 3(a)(ii)). As Layden-Stevenson J. explained at paragraph 26 of her reasons, the implementation of those objectives is achieved through Part 2 of the Act which requires that importers and exporters make a report to a customs official whenever they import or export large quantities of currency or monetary instruments into or out of Canada. The reporting requirement is the cornerstone of the system established for monitoring cross-border movements.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-24", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 24", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "It is therefore important to note that a review of the Minister's decision, regarding both the contravention and the penalty or forfeiture, is necessarily initiated by a request under section 25 of the Act. It is also important to note that subsection 26(2), which is related to the request under section 25, is the only section of the Act that gives the person whose property has been seized an opportunity to offer evidence regarding both the contravention and the forfeiture.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-25", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 25", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Sections 18 to 20 of the Act are under the heading Seizures. The Act provides that if an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments (subsection 18(1) of the Act). An officer who decides to exercise the powers provided for in subsection 18(1) is required to record in writing reasons for the decision (section 19.1 of the Act). An officer who seizes currency or monetary instruments under subsection 18(1) of the Act must give the person from whom they were seized written notice of the seizure and of the right to review and appeal set out in sections 25 and 30 of the Act (subsection 18(3) of the Act). The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities (subsection 18(2) of the Act). If the currency or monetary instruments have been seized under section 18, the officer who seized them shall without delay report the circumstances of the seizure to the President of the Canada Border Services Agency and to the Financial Transactions and Reports Analysis Centre of Canada (section 20).", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-26", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 26–27", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Under the heading Forfeiture, section 23 of the Act provides that subject to subsection 18(2) and sections 25 to 31, currency or monetary instruments seized as forfeit under subsection 18(1) are forfeited to Her Majesty in right of Canada from the time of the contravention of subsection 12(1) in respect of which they were seized. No act or proceeding after the forfeiture is necessary to effect the forfeiture (section 23 of the Act).\n\nThe Act then provides, under the heading Review and Appeal, that the forfeiture is final and is not subject to review except to the extent and in the manner provided for by sections 25 to 30 of the Act (section 24 of the Act).", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-27", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 28", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Act then provides that a person from whom currency or monetary instruments were seized, or the lawful owner, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place (section 25). If a decision of the Minister is requested under section 25, the President shall without delay serve on the person who requested it written notice of the circumstances of the seizure in respect of which the decision is requested (subsection 26(1)). The person on whom a notice is served under subsection (1) may, within 30 days after the notice is served, furnish any evidence in the matter that they desire to furnish (subsection 26(2)). The Minister shall decide, within 90 days after the expiry of the period referred to in subsection 26(2), whether subsection 12(1) was contravened (subsection 27(1)). The Minister has more time if criminal charges are laid (subsection 27(2)). When the time allowed by the Act expires, the Minister shall, without delay after making a decision, serve on the person who requested it a written notice of the decision together with the reasons for it (subsection 27(3)).", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-28", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 29–31", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "If the Minister decides that subsection 12(1) of the Act was contravened, the Minister shall (a) decide that the currency or monetary instruments be returned (paragraph 29(1)(a)); (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted (paragraph 29(1)(b)); or (c) confirm that the currency or monetary instruments are forfeited to Her Majesty in Right of Canada (paragraph 29(1)(c)). The Act does not require that the Minister give reasons for the decision, nor does it state the basis on which the Minister decides. No doubt, however, the Minister has before him the reasons recorded by the officer who exercised the powers provided for in subsection 18(1). The Minister also has the evidence offered by the person from whom currency or monetary instruments were seized under subsection 26(2).\n\nThe Minister's decision to confirm the forfeiture makes the forfeiture final, subject to judicial review as noted earlier.\n\nIn this case, the Minister's decision under section 27 and section 29 was as follows (A.B. vol. II, p. 273): [translation] Decision After examining all of the circumstances of the case, I conclude, under section 27 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, that the contravention was validly determined to have occurred and the seizure of the currency was justified. Under section 29 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the currency seized is retained as forfeit. Reasons Because the currency was not properly reported to Customs, it was seized as forfeit. Forfeiture of the currency without conditions for return is in accordance with the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. Forfeiture of Negotiable Instruments in this Case", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-29", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 32–35", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant argues that the trial judge found that the property seized did not constitute proceeds of crime.\n\nAt paragraph 59 of his reasons, Harrington J. added, in obiter: ¶ 59 That being said, in the event that I am wrong and the Minister's decision to confirm the forfeiture is also the subject of this appeal, I am of the opinion, based on the evidence at trial, that there are no reasonable grounds to suspect that the $102,642.33 or any part thereof are the proceeds of crime within the meaning of Section 462.3(1) of the Criminal Code. In reaching that opinion, it was not necessary to consider the burden of proof and the threshold which must be reached before it can be said that suspicions are supported by reasonable grounds.\n\nHaving regard to his ruling that any review of the Minister's decision to confirm the forfeiture had to be done by way of an application for judicial review, the trial judge did not need to consider the \"reasonable grounds to suspect that…\". That was not his role. Sections 7, 8 and 11(d) of the Charter\n\nBefore the trial judge, the appellant challenged the constitutional validity of sections 12, 15, 16, 18, 19 and 22 to 29 of the Act, and more specifically: (1) the duty imposed on an individual under section 12 of the Act to report money or currency that do not constitute proceeds of crime or are intended to be used to finance terrorist activities; (2) the right of an officer to seize as forfeit, on mere suspicion, currency that does not constitute proceeds of crime or that is not intended to be used to finance terrorist activities; and (3) the powers to order the seizure and forfeiture of currency solely because of a failure to report, based on mere suspicion, without further proof of its origin or illegal destination.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-30", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 36–38", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "In the appellant's submission, section 12 of the Act creates a presumption whereby unreported currency of a value greater than $10,000 constitutes proceeds or crime or is intended to be used to finance terrorist activities, so that the currency may then be seized and forfeited. That presumption is unconstitutional, ultra vires, null and void, in the appellant's submission, as contrary to sections 8 and 11(d) of the Charter. Its effect is a reverse onus of proof. As well, it is inconceivable that the right to declare forfeit should be based on a mere suspicion.\n\nBefore the trial judge, the appellant also invoked section 7 of the Charter, referring to R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. In that decision, the Supreme Court of Canada recognized the existence of a principle of fundamental justice whereby laws must not so lack in precision as not to give sufficient guidance for legal debate. In this Court, the appellant submits that the Act creates a presumption that is abusive, extreme and illogical by using the expressions \"proceeds of crime\" and \"terrorist financing\", which are [translation] “too vague and too general”.\n\nSection 8 of the Charter protects reasonable expectations of privacy: Hunter v. Southam, [1984] 2 S.C.R. 145. That provision is intended to protect individual privacy and is not a constitutional guarantee of property rights: Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708 at paragraph 52. See also R. v. Plant, [1993] 3 S.C.R. 281 at paragraph 16.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-31", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 39", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "In R. v. Simmons, [1988] 2 S.C.R. 495, the Supreme Court of Canada held that the search and seizure provisions in the Customs Act, which authorized the search of an individual if a customs officer had \"reasonable grounds for supposing\" that the person had prohibited goods secreted about his or her person, did not violate section 8 of the Charter. At paragraph 49 of its reasons, the Court explained: I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process beginning with completion of a declaration of all goods being brought into the country. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods. [Emphasis added.]", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-32", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 40–43", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Supreme Court of Canada has further confirmed, in R. v. Monney, [1999] 1 S.C.R. 652 at paragraph 37, that the reasoning in Simmons applies notwithstanding the amendments to the Customs Act that authorizes a search on the basis of reasonable grounds to suspect.\n\nThe provisions of the Act in question therefore do not violate section 8 of the Charter. The trial judge did not err in finding that \"[p]hysical searches of luggage and of the person are accepted aspects of that process where they are grounds for suspecting that a person has made a false declaration or is transporting prohibited goods\" and holding that the provisions in issue are not unreasonable.\n\nMoreover, the presumption of innocence guaranteed by section 11(d) of the Charter applies only to an accused, that is, an individual who is facing criminal, quasi-criminal or regulatory charges: see, for example, R. v. Wigglesworth, [1987] 2 S.C.R. 541 at page 554; Schmidt v. R., [1987] 1 S.C.R. 500.\n\nThe appellant is not an accused. He is not charged with any criminal, quasi-criminal or regulatory offence. The fact that his conduct may result in criminal prosecutions does not mean that the forfeiture procedure set out in the Act can be characterized as a penal proceeding. The appropriate test is the nature of the proceeding, and not the nature of the act: Martineau v. Canada (Minister of National Revenue), [2004] 3 S.C.R. 737, at paragraph 31. The seizure and forfeiture process established by the Act is a civil collection mechanism that is not intended to punish the individual: see Martineau at paragraphs 22-23; Wigglesworth at page 560.", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-33", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "paras 44–47", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Section 11(d) of the Charter therefore does not come into play. The trial judge did not err in describing the forfeiture provided for in the Act as civil proceedings against a thing, not proceedings against a person, and holding that this provision does not apply because no charge has been laid against Mr. Tourki.\n\nSection 7 is also not engaged. Even before addressing the issue of whether section 7 rights have been infringed in a manner not in accordance with the principles of fundamental justice, one must first establish that there has been an infringement of the right to life, liberty and security of the person: Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paragraph 47.\n\nThe duty to report imposed by the Act and the seizure and forfeiture mechanism it establishes do not engage the right to life, liberty and security of the person. The right to life, liberty and security of the person encompass a person's fundamental life choices, and not purely economic interests or property rights: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at paragraph 95; Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6 at paragraph 45.\n\nAt paragraph 56 of his reasons, the trial judge concluded that \"the law is crystal clear. If you do not declare, the Customs officer is entitled to forfeit that which should have been declared. It is as simple as that.\" It was not necessary to examine the appellant's argument based on the vagueness of the Act, because the appellant's situation does not engage section 7. Conclusion", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-35595-34", - "doc_type": "caselaw", - "act_code": "2007 FCA 186", - "act_short": "Tourki", - "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", - "marginal_note": "para 48", - "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "I would dismiss the appeal with costs. \"Alice Desjardins\" J.A. \"I agree. Marc Noël J.A.\" \"I agree. J.D. Denis Pelletier J.A.\" Certified true translation François Brunet, LLB, BCL DOCKET: A-71-06 (APPEAL FROM A JUDGMENT OF THE FEDERAL COURT DATED JANUARY 19, 2006, FILE No. T-903-04). STYLE OF CAUSE: Skander Tourki v. The Minister of Public Safety and Emergency Preparedness PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: February 7, 2007 REASONS FOR JUDGMENT BY: Desjardins J.A. CONCURRED IN BY: Noël J.A. Pelletier J.A. DATED: May 11, 2007 APPEARANCES: Jérôme Choquette and Jean-Stéphane Kourie Montréal, Quebec FOR THE APPELLANT Jacques Mimar Montréal, Quebec FOR THE RESPONDENT SOLICITORS OF RECORD: Choquette Beaupré Rhéaume Montréal, Quebec FOR THE APPELLANT Justice Canada Montréal, Quebec FOR THE RESPONDENT", - "current_to": "2007-05-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" - }, - { - "id": "fca-304112-1", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 1–7", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Williams appeals from the order dated February 24, 2017 of the Federal Court (per McDonald J.): 2017 FC 234. The Federal Court dismissed a summary judgment motion brought by Mr. Williams in an action he has started.\n\nIn his action, Mr. Williams seeks the return of certain United States currency that a border services officer seized from him at a customs reporting station. Part of the currency has been declared forfeited.\n\nWhether Mr. Williams succeeds depends solely on a legal question: was the seizure and forfeiture of his currency authorized by law? Mr. Williams says no. The respondent Minister says yes. The Federal Court agreed with the Minister. Mr. Williams now appeals.\n\nFor the reasons that follow, I would allow the appeal and grant summary judgment in Mr. Williams’ favour.\n\nThe border services officer had no legal power under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the “Act”) to seize any of the currency. The respondent Minister has pointed to no other legal authority to justify the seizure. Thus, Mr. Williams is entitled to the return of all of his currency.\n\nMr. Williams’ motion for summary judgment was brought under Rule 215(2)(b) of the Federal Court Rules, SOR/98-106. In his notice of motion, Mr. Williams specifically sought the determination of a question of law concerning the authority of the border services officer and then judgment in the action in his favour on the basis that no genuine issue for trial remained.\n\nThe parties did not file any affidavits in the summary judgment motion. Thus, the only facts the Federal Court could have relied upon in determining Mr. Williams’ motion are those that the Minister pleaded to or admitted to in his statement of defence.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-2", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 8–12", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Given this, the thrust of Mr. Williams’ motion is clear: judgment must be granted in his favour because, on the facts the Minister pleaded or admitted, the border services officer had no legal authority to seize his currency.\n\nOn July 3, 2015, Mr. Williams travelled eastbound for Canada on the Blue Water Bridge. The bridge connects Port Huron, Michigan, United States and Sarnia, Ontario, Canada. At the Canada Border Services Agency reporting station, Mr. Williams told the border services officer that “he made a wrong turn and did not intend to enter Canada.” See statement of defence, paras. 5 and 6.\n\nThe border services officer then “proceeded with the standard line of questioning, including whether or not [Mr. Williams] was in possession of currency or monetary instruments equal to or greater than $10,000.00 CAD”: statement of defence, para. 6. Mr. Williams replied, falsely, that he was not.\n\nThe border services officer then referred Mr. Williams to secondary inspection. There, Mr. Williams was asked about a large bulge in the front pocket of his shorts. Mr. Williams replied that he was carrying approximately $6,000.00. When asked to produce the currency for inspection, Mr. Williams “admitted that he may, in fact, be in possession of upwards of $10,000.00 as he was holding $2,500.00 for one of his passengers.” See statement of defence, para. 7.\n\nIn fact, Mr. Williams was carrying $10,758.00 USD, then the equivalent of $13,518.50 CAD: statement of defence, para. 8. When asked why he had not reported the currency, Mr. Williams stated that “he was confused when initially questioned because he had not intended to come to Canada and that he had actually forgotten that he had it in his pocket”: statement of defence, para. 9.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-3", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 13–16", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Soon afterward, Mr. Williams’ currency “was seized as forfeit,” purportedly under the authority of section 18(1) of the Act: statement of defence, para. 10. As a result of a later administrative decision, the Minister decided that $2,020.00 USD should be returned to Mr. Williams because it was proven to be legitimate in origin: statement of defence, paras. 11-13. The rest, $8,738.00 USD, remained seized as forfeit.\n\nUpon receipt of the Minister’s decision, Mr. Williams brought an action in the Federal Court seeking the return of the $8,738.00 USD. This is how an aggrieved person can obtain review of the Minister’s decision: Act, section 30. Mr. Williams also seeks pre-judgment interest running from the date of seizure on the full amount originally seized from him, as none of it has been returned to him.\n\nThe Act creates a regime for the regulation of currency and monetary instruments imported or exported by cross-border travellers. Under the Act, any amount of currency and monetary instruments may be imported or exported.\n\nBut there is a reporting requirement in subsection 12(1) of the Act. Under this subsection, cross-border travellers must report “the importation or exportation of [domestic and foreign] currency or monetary instruments” equal or greater than a reporting threshold. The reporting threshold is $10,000.00 CAD: Cross-border Currency and Monetary Instruments Reporting Regulations, SOR/2002-412, s. 2(1).", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-4", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "para 17", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus, the objective of the Act is not to prevent cross-border flows of large amounts of currency and monetary instruments, but rather to keep track of the cross-border flows. This objective is meant to fulfil certain larger purposes, including, broadly speaking, the detection and prevention of money laundering, terrorist financing and organized crime. These are explicitly set out in section 3 of the Act: 3. The object of this Act is 3. La présente loi a pour objet : (a) to implement specific measures to detect and deter money laundering and the financing of terrorist activities and to facilitate the investigation and prosecution of money laundering offences and terrorist activity financing offences, including a) de mettre en oeuvre des mesures visant à détecter et décourager le recyclage des produits de la criminalité et le financement des activités terroristes et à faciliter les enquêtes et les poursuites relatives aux infractions de recyclage des produits de la criminalité et aux infractions de financement des activités terroristes, notamment : (i) establishing record keeping and client identification requirements for financial services providers and other persons or entities that engage in businesses, professions or activities that are susceptible to being used for money laundering or the financing of terrorist activities, (i) imposer des obligations de tenue de documents et d’identification des clients aux fournisseurs de services financiers et autres personnes ou entités qui se livrent à l’exploitation d’une entreprise ou à l’exercice d’une profession ou d’activités susceptibles d’être utilisées pour le recyclage des produits de la criminalité ou pour le financement des activités terroristes, (ii) requiring the reporting of suspicious financial transactions and of", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-5", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "para 17", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "cross-border movements of currency and monetary instruments, and (ii) établir un régime de déclaration obligatoire des opérations financières douteuses et des mouvements transfrontaliers d’espèces et d’effets, (iii) establishing an agency that is responsible for ensuring compliance with Parts 1 and 1.1 and for dealing with reported and other information; (iii) constituer un organisme chargé du contrôle d’application des parties 1 et 1.1 et de l’examen de renseignements, notamment ceux portés à son attention au titre du sous-alinéa (ii); (b) to respond to the threat posed by organized crime by providing law enforcement officials with the information they need to deprive criminals of the proceeds of their criminal activities, while ensuring that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves; b) de combattre le crime organisé en fournissant aux responsables de l’application de la loi les renseignements leur permettant de priver les criminels du produit de leurs activités illicites, tout en assurant la mise en place des garanties nécessaires à la protection de la vie privée des personnes à l’égard des renseignements personnels les concernant; (c) to assist in fulfilling Canada’s international commitments to participate in the fight against transnational crime, particularly money laundering, and the fight against terrorist activity; and c) d’aider le Canada à remplir ses engagements internationaux dans la lutte contre le crime transnational, particulièrement le recyclage des produits de la criminalité, et la lutte contre les activités terroristes; (d) to enhance Canada’s capacity to take targeted measures to protect its financial system and to facilitate Canada’s efforts to mitigate the risk", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-6", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 17–20", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "that its financial system could be used as a vehicle for money laundering and the financing of terrorist activities. d) de renforcer la capacité du Canada de prendre des mesures ciblées pour protéger son système financier et de faciliter les efforts qu’il déploie pour réduire le risque que ce système puisse servir de véhicule pour le recyclage des produits de la criminalité et le financement des activités terroristes.\n\nIn order to advance these larger purposes, reports under subsection 12(1) are sent to the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC): subsection 12(5) of the Act. The Customs Act also allows information obtained through these reports to be shared widely in certain circumstances: see, e.g., paragraphs 107(4)(c) and 107(5)(k) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).\n\nIn support of this regime, the Act provides for the temporary retention of imported or exported currency and monetary instruments (section 14), the interception of mail (sections 17 and 21) and for searches of persons (section 15) and conveyances (section 16).\n\nThe Act also provides that where a border services officer has reasonable grounds to believe that a person has not reported under subsection 12(1) of the Act the importation or exportation of currency or monetary instruments exceeding the reporting threshold, the currency or monetary instruments may be “seize[d] as forfeit” (section 18). In this case, the parties are agreed that if in fact Mr. Williams was not under an obligation to report his currency under subsection 12(1) of the Act, the border services officer had no reasonable grounds to seize the currency.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-7", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 21–24", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Considering the basic facts of this case and this legislative regime as explained thus far, one might conclude that the seizure of currency from Mr. Williams was authorized by law. He carried currency in excess of $10,000.00 CAD across the border and did not report it. On its face, subsection 12(1) requires that a report be made in circumstances such as these. And, as mentioned, section 18 allows for the currency to be seized where a report is not made when it should have been made.\n\nBut that conclusion would be too hasty. For there is another section in the Act that Mr. Williams says relieves him from making a report under subsection 12(1). It is section 13.\n\nSection 13 allows a person who is required to report currency to “decide not to proceed further with importing or exporting” the currency “at any time” before the currency is retained under section 14 or forfeited under section 18. The parties agree that to trigger section 13 a person must not only make the decision not to proceed further with the importation or exportation but must state the decision to the border services officer.\n\nIf, as here, a person triggers section 13 immediately upon arrival in Canada—i.e., in effect states that he is not importing anything into Canada—does the person have to make a report under subsection 12(1) of the Act?", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-8", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 25–26", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "The answer to this legal question determines the outcome of this case: If the answer is yes—i.e., even though Mr. Williams triggered section 13, he still had to make a report under subsection 12(1) of the Act—then Mr. Williams’ failure to comply with subsection 12(1) of the Act is sufficient legal authority for the forfeiture of the currency under section 18 of the Act. As mentioned, section 18 allows for the currency to be seized where an officer has reasonable grounds to believe that a report that should have been made under the Act is not made. Thus, the currency was properly seized. If the answer is no—i.e., Mr. Williams triggered section 13 and so he did not need to make a report under subsection 12(1) of the Act—then Mr. Williams did not offend subsection 12(1) of the Act. This changes everything: the prerequisite for section 18—which authorizes seizure only when there is a reasonable belief that a report is required and not made—is not present. Thus, there is no legal authority for the seizure of Mr. Williams’ currency under section 18 of the Act and so Mr. Williams should get his currency back.\n\nImmediately upon arriving in Canada, Mr. Williams announced he was accidentally in Canada and later, consistent with this, stated that did not intend to be in Canada. This is the expression of a decision not to enter Canada and, thus, not to import anything into Canada. Section 13 allows him to announce this “at any time” before the currency is retained or forfeited. Mr. Williams says that this includes the time before a report is made under subsection 12(1) of the Act. He emphasizes the words “at any time.”", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-9", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 27–31", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Thus, according to Mr. Williams, the trigger for making a report under subsection 12(1)—the “importation or exportation” of currency over $10,000.00 CAD—was not present. According to Mr. Williams, he was not obligated to report that he was importing currency because he had already expressed his decision not to import the currency under section 13.\n\nThe Federal Court rejected Mr. Williams’ submissions. It adopted those of the Minister. In this Court, the Minister adopts the reasoning of the Federal Court.\n\nThe Federal Court held (at para. 14) that the obligation to report to the officer “the importation…of currency” over $10,000.00 CAD in subsection 12(1) of the Act “is the first step in the importation of currency”.\n\nIn the Federal Court’s view, the decision “not to proceed further with importing or exporting” the currency can only be taken after the report under subsection 12(1) of the Act has been made. Only after the report can a person “choose to ‘opt out’ of the importation pursuant to section 13” (at para. 16).\n\nAccording to the Federal Court, the fact that Mr. Williams did not intend to enter Canada “is irrelevant to his obligation to report and to answer truthfully the questions” asked by the border services officer under subsection 12(1) of the Act (at para. 18). In its view, interpreting section 13 in the manner suggested by Mr. Williams is inconsistent with the reporting obligations imposed by subsection 12(1) of the Act. In effect, the obligation to report under subsection 12(1) takes primacy over section 13.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-10", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 32–36", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Therefore, according to the Federal Court, the border services officer in this case—who had a belief on reasonable grounds that Mr. Williams did not make the required report under subsection 12(1)—had the power under section 18 of the Act “to seize as forfeit the currency.”\n\nIn reaching its decision, the Federal Court did not analyze the role of the words “at any time” in section 13. The effect of its decision is to interpret “at any time” to mean “any time after a report has been made under subsection 12(1) of the Act”; as a result, a decision not to import under section 13 does not displace the reporting requirement imposed by subsection 12(1) of the Act.\n\nThe Federal Court proceeded on the basis that Mr. Williams had triggered section 13. In my view, on this issue, the Federal Court did not commit any reversible error.\n\nMost cross-border travellers are not knowledgeable about the law. Section 13 does not require them to use a particular, exact series of words to trigger section 13. Thus, the substance, not the form, of what the traveller says must be examined.\n\nThe Minister’s statement of defence concedes that immediately upon arrival in Canada and before the border services officer asked Mr. Williams any questions, Mr. Williams told the border services officer that he arrived in Canada accidentally. Later, in secondary inspection, but before his currency was seized as forfeit under section 18, Mr. Williams stated that he did not intend to enter Canada, thereby confirming his earlier statement. His words can only as construed as meaning that he was going straight back to the United States.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-11", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 37–42", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Mr. Williams was carrying his currency on his person. One cannot import into Canada something on one’s person unless one enters Canada. In the circumstances of this case, Mr. Williams’ statement that he did not intend to enter Canada is in substance a statement that he did not intend to import anything on his person into Canada. If he was going straight back to the United States, he was not importing anything into Canada.\n\nViewed in these circumstances, Mr. Williams did the objective act required to trigger section 13, the communication of a decision not to import. I conclude that Mr. Williams triggered section 13.\n\nIn light of the foregoing, the Federal Court was entitled in these circumstances to proceed on the basis that Mr. Williams triggered section 13. So shall we.\n\nThus, the legal question posed earlier now must be answered: if, as here, a person triggers section 13 immediately upon arrival in Canada—i.e., in effect states that he is not importing anything into Canada—does the person have to make a report under subsection 12(1) of the Act? To answer this, we must interpret the relevant provisions of the Act.\n\nWe are to interpret the relevant provisions of the Act in accordance with their text, context and purpose: Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559.\n\nIn this analysis, “[w]hen the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-12", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 43–47", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Nevertheless, a court must consider the total context of the provision to be interpreted “no matter how plain the disposition may seem upon initial reading”: ATCO Gas and Pipelines Ltd v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140 at para. 48.\n\nAlso relevant to the process of legislative interpretation is that the seizure authorized under the Act operates in a way similar to absolute liability provisions found in a number of regulatory statutes. As I shall explain below, under this legislative regime the acts and omissions of travellers, not their intentions, are alone relevant. This Court has held that provisions such as these can operate in draconian ways and, thus, call for careful scrutiny: Doyon v. Canada, 2009 FCA 152, 312 D.L.R. (4th) 142; Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45, 411 D.L.R. (4th) 175 at paras. 18-19, citing Canada v. Kabul Farms Inc., 2016 FCA 143 and Canada v. Guindon, 2013 FCA 153, 360 D.L.R. (4th) 515 at paras. 54-55.\n\nI wish to offer some additional guidance concerning legislative interpretation. For clarity, none of this guidance should be construed as a comment on how the Federal Court interpreted the Act.\n\nLegislative interpretation can be tricky. One must be on guard not to introduce extraneous considerations into the proper, objective analysis of the text, context and purpose of legislation.\n\nPersonal evaluations of the moral conduct of the parties, good or bad, should play no role in the analysis. In the case before us, we have a cross-border traveller who falsely declared to a border services officer how much currency he was carrying. In cases like this, some might let their reaction to the facts skew their interpretation of the legislation. That would be wrong.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-13", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 48–49", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Also wrong would be to permit personal policies or political preferences to play a part in our interpretation of the legislation: for example, to aim for a result we personally prefer, to fasten onto what we like and ignore what we don’t, or to draw upon what we think is best for Canadian society. Common to these practices is an analytical focus on what we want the legislation to mean rather than on what the legislation authentically means.\n\nIn our legal system, the starting point is that only elected legislators—not unelected judges—have the “exclusive” power to express their personal policies or political preferences in binding legislation: see the opening words of ss. 91 and 92 of the Constitution Act, 1867. These words enshrine a principle won four centuries ago at the cost of much bloodshed: for a recent restatement and discussion of the principle, see R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, [2017] 2 W.L.R. 583 at paras. 40-46. The only exception is where legislation expressly delegates the power to legislate: see Hodge v. The Queen (1883), 9 App. Cas. 117, 9 C.R.A.C. 13 (J.C.P.C.) (regulations made by delegatees) and In Re Gray (1918), 57 S.C.R. 150, 42 D.L.R. 1 (orders akin to legislation made by delegatees). But even then the delegation often must meet strict requirements of a constitutional nature: see, e.g., Eurig Estate (Re), [1998] 2 S.C.R. 565, 165 D.L.R. (4th) 1, Ontario Home Builders’ Association v. York Region Board of Education, [1996] 2 S.C.R. 929, 137 D.L.R. (4th) 449 and Ontario Public School Boards’ Assn. v. Ontario (Attorney General) (1997), 151 D.L.R. (4th) 346 at pp. 362-365, 45 C.R.R. (2d) 341 at pp. 356-359 (Ont. Gen. Div.) (discussion of Henry VIII clauses).", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-14", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 50–52", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Absent a successful argument that legislation is inconsistent with the Constitution, judges—like everyone else—are bound by the legislation. They must take it as it is. They must not insert into it the meaning they want. They must discern and apply its authentic meaning, nothing else.\n\nHow do we go about this? As the authorities suggest, we are to investigate the text, context and purpose of the legislation as objectively and fairly as we can. On this, especially when investigating the purpose, we have assistance: the Interpretation Act, R.S.C. 1985, c. I-2, canons of statutory construction known to both legislative drafters and courts, and other legitimate aids to interpretation such as—in certain circumstances and with appropriate caution—extraneous, contemporaneous materials (e.g., regulatory impact or official explanatory statements), legislative debates, and legislative history.\n\nA frequently used tool in the interpretive process is to assess the likely effects or results of rival interpretations to see which accords most harmoniously with text, context and purpose. This is appropriate. The judge is assessing effects or results not to identify an outcome that accords with personal policies or political preferences. Rather the judge is assessing them against the standard, accepted markers of text, context and purpose in order to discern the authentic meaning of the legislation. For example, if the effect of one interpretation offends the legislative purpose but the effect of another interpretation does not, the latter may be preferable to the former.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-15", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 53–55", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "With these thoughts front of mind, I turn first to the purposes of the Act. While the Act’s primary objectives, as set out in section 3, are to detect and prevent money laundering, terrorist financing and organized crime, both parties agree that section 13 is aimed at a different objective, namely to “[ensure] that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves”: subsection 3(b) of the Act. Section 13, as interpreted by Mr. Williams, is consistent with this purpose. A person who has expressed his or her intention not to import currency into Canada need not make a report under subsection 12(1). The information that would have otherwise been disclosed in a report and shared with other agencies remains private.\n\nOn the Minister’s view of the matter, it is difficult to see what role section 13 plays.\n\nParliament did not legislate section 13 into existence for no reason. An accepted canon of construction is that legislators do not legislate in vain. So what is behind section 13? What does expression of the decision not to import under section 13 give to a cross-border traveller?", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-16", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "para 56", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Section 13 can only mean that once a person expresses a decision not to import, that person need not report under the Act. This advances the purpose of protecting “the privacy of persons with respect to personal information about themselves” (subsection 3(b) of the Act). Once a person makes a currency report under subsection 12(1) of the Act, the person’s privacy interests evaporate. All reports “shall” be sent to the FINTRAC who can then, in certain circumstances and for certain purposes, share that information with local police forces, the Canada Revenue Agency, provincial securities regulators, the Canada Border Services Agency, the Communications Security Establishment, Canadian Security and Intelligence Services, and even foreign governments—and the Customs Act also allows information obtained through a currency report to be shared widely across government institutions in certain circumstances, including FINTRAC: see, e.g., sections 12(5), 55(3), 55.1, 56 and 56.1 of the Act and paragraphs 107(4)(c) and 107(5)(k) of the Customs Act.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-17", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 57–59", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "In response to questioning by the Court, the Minister was unable to identify a plausible role for section 13. In all of the Minister’s proposed interpretations of section 13, the cross-border traveller must make a truthful report before section 13 could be invoked. But once a report is made, the horse has long left the barn. If section 13 does not eliminate the requirement to report and prevent all these privacy-diminishing consequences, it has no practical use. Allowing a person under section 13 not to give a report averts these consequences and furthers an important purpose under subsection 3(b) of the Act—“ensuring that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves.”\n\nNow to a consideration of context. The Act sits alongside the Customs Act. The Act does not displace or modify any of the provisions of the Customs Act. The Customs Act contains provisions that require individuals presenting themselves to a border services officer at a border station to answer questions, provide truthful information and cooperate fully with authorized searches: e.g., sections 11(1), 98, 99, 153.1. The purposes for making full and candid disclosure at a border under the Customs Act include those under the Act and extend to others.\n\nThese and other obligations under the Customs Act apply regardless of whether section 13 of the Act applies. Specifically, a statement by a person that she is turning around and going back immediately to the United States and not importing anything into Canada does not relieve that person from answering all questions honestly and cooperating fully under the Customs Act.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-18", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 60–63", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Customs Act sets out sanctions for contraventions of a number of its provisions, sanctions that are separate and apart from those set out under the Act: Part VI of the Customs Act.\n\nWhen the Act and the Customs Act are reviewed, one can see that violations of the Customs Act do not constitute a ground for forfeiture of currency under section 18 of the Act. Of course, contraventions of the Customs Act can result in serious sanctions. But those sanctions are under the Customs Act. And those sanctions under the Customs Act do not include seizure under section 18 of the Act.\n\nIn interpreting the Act, some mindful of the anti-money-laundering and anti-terrorism purposes of the Act might be reluctant to hold that section 13 relieves people from disclosing necessary information. But that would be taking an unduly narrow view of the statutory landscape. People are not relieved from disclosing necessary information. Obligations under the Customs Act remain. Failure to abide by them can result in serious sanctions.\n\nThe practical effect is that even if Mr. Williams’ invocation of section 13 of the Act is effective to relieve him of making a report under subsection 12(1) of the Act, the broad obligations imposed on him by the Customs Act remain. If the border services officer asks questions about currency, those obligations include answering those questions honestly.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-19", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "para 64", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "This interpretation is consistent with another provision in the Act, subsection 14(3). This provides that currency or monetary instruments retained but not yet seized by a border services officer must be given back to the person if “the officer is satisfied that the currency or monetary instruments have been reported under subsection 12(1) [of the Act]” or if “the importer or exporter…advises the officer that they have decided not to proceed further with importing or exporting them.” The “or” is disjunctive. Thus, even if a report has not been made under subsection 12(1) of the Act, subsection 14(3) requires border services officers to return any retained currency or monetary instruments once the traveller advises the border services officer that the currency or monetary instruments are not being imported—in other words, using the circumstances of Mr. Williams, the person is turning around and going back to the United States. Subsection 14(3) represents a slight extension of section 13, which allows a person to express a decision not to import currency or monetary instruments only until the currency or monetary instruments are retained. Nevertheless subsection 14(3) confirms the interpretation that a failure to report is not cause for the forfeiture of currency or monetary instruments as long as a proper and timely decision not to import or export is expressed.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-20", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 65–67", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Looking now at the text of section 13, the words “at any time” before the currency is retained under section 14 or forfeited under section 18 are, in the words of Canada Trustco, “precise and unequivocal.” There is no reason consistent with the purpose of the Act to read them down, especially in light of the broad disclosure obligations under the Customs Act. In fact, even if section 13 did not contain the words “at any time”, it may have been necessary to read those words into section 13 to give meaning to it: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 211-214.\n\nAgain, looking at the text, the obligation under subsection 12(1) is to report “the importation…of currency” over $10,000.00 CAD. Mr. Williams, having declared he was not intending to enter Canada, was not importing anything. As he was not importing anything, he had no report of importation to make under subsection 12(1).\n\nThe Minister submits that Mr. Williams’ subjective intention not to import the currency is irrelevant: Azouz v. Canada (Public Safety and Emergency Preparedness), 2009 FC 1222; Zeid v. Canada (Public Safety and Emergency Preparedness), 2008 FC 539; Hoang v. Canada (Minister of National Revenue), 2006 FC 182. I agree only insofar as the Minister suggests that a decision not to import must be expressed to the border services officer and that it is no defence for a traveller to argue that he or she did not intend to contravene the reporting requirement or had no knowledge they were in contravention. The cases cited stand only for these two propositions and neither justifies the seizure of Mr. Williams’ currency.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-21", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 68–69", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "Section 13 as I have interpreted it does not rely on a subjective intention not to import. To trigger section 13, as the parties agree, a person must express the decision. In substance, Mr. Williams expressed to the border services officer his decision not to import. By doing that act, he triggered section 13.\n\nIn this Court, Mr. Williams is not making any submissions about his intention. Rather he is submitting that because of his act of expressing his decision not to import, he cannot be taken in law to be importing currency. Arriving in Canada by accident, in substance he expressed his decision to turn around and go back to the United States right away. Thus, under subsection 12(1), he had no obligation to report “the importation or exportation of currency.” And thus, there was no basis for the seizure of his currency under section 18.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-22", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "para 70", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "The Minister also points to subsection 12(4) of the Act which requires travellers to “answer truthfully any questions asked by the officer in the performance of the officer’s duties and functions” under Part 2 of the Act and adds that Mr. Williams did fail to answer truthfully the officer’s question about how much currency he was carrying, a question that falls under Part 2 of the Act. But this is of no moment. The forfeiture of the currency under section 18 is available only on the basis of reasonable grounds to believe subsection 12(1) is infringed, not subsection 12(4). The text of section 13 does not make it contingent on the cross-border traveller making a report or making an accurate report; again, it says it can be invoked “at any time” before the currency is retained under section 14 or forfeited under section 18. And, as previously mentioned, recourses may exist under the Act and the Customs Act for Mr. Williams’ failure to answer questions truthfully, such as the obligation under subsection 12(4) of the Act: see, e.g., subsection 74(1) of the Act and sections 11(1), 153, 153.1, 160, 160.1 and 161 of the Customs Act. But none of those recourses permit the forfeiture of the unreported currency under section 18 of the Act.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-23", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "paras 71–75", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "To reiterate, this interpretation of section 13 does not turn it into something like a “get out of jail free” card for money launderers, terrorist financiers and other transnational criminals. The Act and section 13 occupy a small corner in the broader universe of obligations created by the Customs Act and the powerful investigatory and enforcement mechanisms that accompany it. Backed by the threat of significant financial and custodial consequences, border services officers wield wide-ranging powers under the Customs Act to question travellers without cause, search travellers and their possessions, seize those possessions, compel truthful responses, arrest travellers committing offences under the Criminal Code, R.S.C., 1985, c. C-46, and share information widely to protect the interests of Canadians and their institutions of government: see e.g., sections 11(1), 98, 99, 107, 110, 153, 153.1, 160, 160.1, 161, 163.5 of the Customs Act. These powers and penalties loom large over every cross-border traveller, including Mr. Williams.\n\nSection 13 performs a very limited function at the border: it protects a privacy interest—the amount of currency or monetary instruments in one’s possession—for individuals who are not importing currency or monetary instruments. It does not immunize travellers engaging in unlawful activities.\n\nFor the foregoing reasons, the seizure and forfeiture of Mr. Williams’ currency was not authorized by law.\n\nIt is not necessary to consider Mr. Williams’ alternative submissions under the Canadian Bill of Rights or the Charter.\n\nNothing in these reasons affects any recourse under the Customs Act that may exist against Mr. Williams on the facts of this case.", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fca-304112-24", - "doc_type": "caselaw", - "act_code": "2017 FCA 252", - "act_short": "Williams", - "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", - "marginal_note": "para 76", - "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", - "part": "Federal Court of Appeal", - "division": "", - "text": "For the foregoing reasons, I would allow the appeal, set aside the order of the Federal Court, grant Mr. Williams’ motion for summary judgment with costs of the action and costs here and below on the motion. Pre-judgment interest should run from the date of seizure until the return of the currency and should be calculated on the basis that the cause of action arose in Ontario in accordance with subsection 36(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. \"David Stratas\" J.A. “I agree. M. Nadon J.A.” “I agree. Wyman W. Webb J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2017-12-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" - }, - { - "id": "fc-37898-1", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 1–4", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "The question to be answered in this case is whether the Federal Court has jurisdiction under section 30 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the Act) to review a ministerial decision made under section 29 of the Act. I have concluded that the answer is no because the Act does not vest the Federal Court with appellate jurisdiction to review a section 29 ministerial decision.\n\nThe defendant, by notice of motion under Rule 220 of the Federal Courts Rules, 1998, SOR/98-106, and on consent of the plaintiff, sought an order directing the determination of a question of law. Madam Justice Tremblay-Lamer, by Order dated March 24, 2005, granted the request. FACTS\n\nThe parties submitted an Agreed Statement of Facts. A copy of that document is attached to these reasons as Schedule \"A\". For context, a recitation of the pertinent facts is set out here.\n\nThe plaintiff, Mr. Dokaj, is a Canadian citizen. On October 16, 2003, he was scheduled to travel from Dorval Airport (as it then was) in Montreal to Athens, Greece en route to Albania. At the time, he was in possession of approximately $25,950 in U.S. currency and $400 in Canadian funds. When asked by customs officials if he had in his possession more than $10,000 he answered that he did not. Customs officials, upon searching Mr. Dokaj, discovered the aforementioned currency in his wallet, coat pocket, and luggage. A customs officer seized the money and provided him with a \"Customs Seizure Receipt\".", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-2", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 5–6", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "Mr. Dokaj requested that the Minister review the seizure of the monies. The ministerial delegate, in correspondence dated March 16, 2004, rendered the following decision: After considering all of the circumstances, I have decided, under section 27 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, that there has been a contravention in respect of the currency which was seized. Under section 29 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the seized currency is held as forfeit. The ministerial delegate enclosed, in the correspondence, a copy of sections 26, 27 and 30 of the Act and commented \"[y]ou may find this information helpful should you wish to appeal this decision\".\n\nMr. Dokaj initiated an appeal by way of action by issuing a statement of claim, pursuant to section 30 of the Act, and requested monetary relief equal to the value of the seized currency less a penalty of $2,500. Mr. Dokaj admits, in the statement of claim, that he failed to declare the currency to the customs officials. He alleges that the ministerial delegate erred in law because she: (a) \"failed to investigate the source of the currency as documented by the solicitor acting for the plaintiff\"; and (b) \"failed to consider alternatives to forfeiture without terms of release pursuant to subsection 18(2) of the [Act]\".", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-3", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 7–8", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "The defendant Minister moved to strike the statement of claim on the basis that the Court's jurisdiction, under section 30 of the Act, is limited to reviewing the section 27 decision and it is without jurisdiction to entertain an appeal of a section 29 decision. A prothonotary concluded that the answer to the question was not plain and obvious and accordingly dismissed the motion. The prothonotary suggested that the proper procedure for adjudication would be a motion to determine a question of law. Hence, the Minister moved under Rule 220 and the Order of Madam Justice Tremblay-Lamer issued. ISSUE\n\nThe sole issue is the determination of the question: \"Does the Federal Court have jurisdiction pursuant to section 30 of the [Act] to review a ministerial decision issued pursuant to section 29 of the Act?\" THE RELEVANT STATUTORY PROVISIONS", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-4", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "para 9", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "The relevant statutory provisions are attached to these reasons as Schedule \"B\". For ease of reference, sections 25 to 30 of the Act are reproduced here. Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. 26. (1) If a decision of the Minister is requested under section 25, the Commissioner shall without delay serve on the person who requested it written notice of the circumstances of the seizure in respect of which the decision is requested. (2) The person on whom a notice is served under subsection (1) may, within 30 days after the notice is served, furnish any evidence in the matter that they desire to furnish. 27. (1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened. (2) If charges are laid with respect to a money laundering offence or a terrorist activity financing offence in respect of the currency or monetary instruments seized, the Minister may defer making a decision but shall make it in any case no later than 30 days after the conclusion of all court proceedings in respect of those charges. (3) The Minister shall, without delay after making a decision, serve on the person who requested it a written notice of the decision together with the reasons for it. 28.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-5", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "para 9", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "If the Minister decides that subsection 12(1) was not contravened, the Minister of Public Works and Government Services shall, on being informed of the Minister's decision, return the penalty that was paid, or the currency or monetary instruments or an amount of money equal to their value at the time of the seizure, as the case may be. 29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister shall, subject to the terms and conditions that the Minister may determine, (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada. The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it. (2) The total amount paid under paragraph (1)(a) shall, if the currency or monetary instruments were sold or otherwise disposed of under the Seized Property Management Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the currency or monetary instruments. 30. (1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-6", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "para 9", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "(2) The Federal Courts Act and the rules made under that Act that apply to ordinary actions apply to actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (3) The Minister of Public Works and Government Services shall give effect to the decision of the Court on being informed of it. (4) If the currency or monetary instruments were sold or otherwise disposed of under the Seized Property Management Act, the total amount that can be paid under subsection (3) shall not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the currency or monetary instruments. Loi sur le recyclage des produits de la criminalité et le financement des activités terroristes, L.C. 2000, ch. 17 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l'article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s'il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. 26. (1) Le commissaire signifie sans délai par écrit à la personne qui a présenté la demande visée à l'article 25 un avis exposant les circonstances de la saisie à l'origine de la demande. (2) Le demandeur dispose de trente jours à compter de la signification de l'avis pour produire tous moyens de preuve à l'appui de ses prétentions. 27. (1) Dans les quatre-vingt-dix jours qui suivent l'expiration du délai mentionné au paragraphe 26(2), le ministre décide s'il y a eu contravention au paragraphe 12(1).", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-7", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "para 9", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "(2) Dans le cas où des poursuites pour infraction de recyclage des produits de la criminalité ou pour infraction de financement des activités terroristes ont été intentées relativement aux espèces ou effets saisis, le ministre peut reporter la décision, mais celle-ci doit être prise dans les trente jours suivant l'issue des poursuites. (3) Le ministre signifie sans délai par écrit à la personne qui a fait la demande un avis de la décision, motifs à l'appui. 28. Si le ministre décide qu'il n'y a pas eu de contravention au paragraphe 12(1), le ministre des Travaux publics et des Services gouvernementaux, dès qu'il est informé de la décision du ministre, restitue la valeur de la pénalité réglementaire, les espèces ou effets ou la valeur de ceux-ci au moment de la saisie, selon le cas. 29. (1) S'il décide qu'il y a eu contravention au paragraphe 12(1), le ministre, aux conditions qu'il fixe : a) soit décide de restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; b) soit décide de restituer tout ou partie de la pénalité versée en application du paragraphe 18(2); c) soit confirme la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34. Le ministre des Travaux publics et des Services gouvernementaux, dès qu'il en est informé, prend les mesures nécessaires à l'application des alinéas a) ou b).", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-8", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 9–10", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "(2) En cas de vente ou autre forme d'aliénation des espèces ou effets en vertu de la Loi sur l'administration des biens saisis, le montant de la somme versée en vertu de l'alinéa (1)a) ne peut être supérieur au produit éventuel de la vente ou de l'aliénation, duquel sont soustraits les frais afférents exposés par Sa Majesté; à défaut de produit de l'aliénation, aucun paiement n'est effectué. 30. (1) La personne qui a présenté une demande en vertu de l'article 25 peut, dans les quatre-vingt-dix jours suivant la communication de la décision, en appeler par voie d'action devant la Cour fédérale à titre de demandeur, le ministre étant le défendeur. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s'appliquent aux actions intentées en vertu du paragraphe (1), avec les adaptations nécessaires occasionnées par les règles propres à ces actions. (3) Le ministre des Travaux publics et des Services gouvernementaux, dès qu'il en a été informé, prend les mesures nécessaires pour donner effet à la décision de la Cour. (4) En cas de vente ou autre forme d'aliénation des espèces ou effets en vertu de la Loi sur l'administration des biens saisis, le montant de la somme qui peut être versée en vertu du paragraphe (3) ne peut être supérieur au produit éventuel de la vente ou de l'aliénation, duquel sont soustraits les frais afférents exposés par Sa Majesté; à défaut de produit de l'aliénation, aucun paiement n'est effectué. THE POSITIONS OF THE PARTIES\n\nThe Minister takes the position that the Federal Court's jurisdiction under section 30 is limited to considering the section 27 decision. Consequently, the Court is without jurisdiction to deal with an appeal of the section 29 decision.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-9", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 11–13", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "Mr. Dokaj contends that the Federal Court's appellate jurisdiction under subsection 30(1) must necessarily include jurisdiction to hear an appeal from a decision made under section 29 of the Act. THE ARGUMENTS\n\nThe Minister's argument is two-pronged. First, based on a contextual approach to statutory interpretation, the right of appeal to the Federal Court contained in section 30 of the Act cannot reasonably be extended to include the Minister's decision as to sanction for a violation of subsection 12(1) of the Act. Section 30 provides that a person who requests a decision of the Minister under section 25 may appeal the Minister's decision. Section 25, in turn, refers to requesting a review for \"a decision of the Minister as to whether subsection 12(1) was contravened\". The appeal provided for in section 30 therefore relates solely to subsection 12(1). That subsection creates the obligation to report the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount.\n\nPut another way, an individual who contravenes subsection 12(1) may, under section 25, request a ministerial review. However, the provision for review (as specifically stipulated in section 25) relates to subsection 12(1). The Minister must render a decision as to whether subsection 12(1) was contravened. An appeal lies to the Federal Court with respect to the Minister's decision by virtue of section 30, but that section specifically stipulates that the appeal is with respect to a section 25 review. Approached from either direction, the result is the same. The appeal provided for in section 30 is concerned with a \"contravention\" of subsection 12(1).", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-10", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 14–15", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "The Minister bolsters this argument by reference to the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). It was Parliament's intention, according to the Minister, to institute an appeal mechanism harmonized with the Customs Act, an analogous statute with strikingly similar review mechanisms. Moreover, the administration and enforcement of the Act was entrusted to the same customs officials charged with the administration and enforcement of the Customs Act.\n\nFor example, both statutes allow an individual, from whom goods are seized by a customs official for contravention of the statute in question, to request a ministerial decision as to whether a contravention occurred. Additionally, when the Minister decides that either of the respective statutes has been contravened, a determination is made as to whether the sanction imposed by the customs official is appropriate. The Minister asserts that under the Customs Act, the second decision cannot be challenged by means of a statutory appeal to the Federal Court pursuant to section 135 of the Customs Act or otherwise.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-11", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 16–17", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "The Minister points to several instances where the Federal Court has concluded that its jurisdiction on a section 135 Customs Act statutory appeal is limited to determining whether or not there has been a contravention of the Customs Act that would justify the seizure. The Court is precluded from dealing with any other issues on such statutory appeals including reviews of decisions rendered by the Minister in relation to sanctions. Rather, the recourse available to a person who disagrees with the penalty imposed for contravening the Customs Act is an application for judicial review under section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7. The Minister urges the Court to interpret the Act as it has interpreted the Customs Act and confirm that a statutory appeal under section 30 of the Act is limited to a consideration of the Minister's section 27 decision that the Act was contravened for failure to report the seized currency. It is not permissible to add words where there is an acceptable interpretation without reading in words.\n\nMr. Dokaj claims that while the Minister's submissions regarding similarity between the two statutes are attractive, they are superficial and constitute an elevation of form over substance. The frailties include: a lack of regard to the effect of such decisions for citizens; resort to analogies that invite a review of the similarities between the statutes without consideration of the differences; and a failure to appreciate that the intention of Parliament is presumed to be based on reason and logic. Section 30 of the Act should be interpreted as being applicable to both section 27 and section 29 because both constitute the same decision.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-12", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 18–19", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "In Mr. Dokaj's view, once the Minister has determined that there has been a contravention of subsection 12(1), the Minister must, of necessity, proceed to section 29 to determine what sanction is to be imposed (the presumption being the return of the currency less any penalty unless there is a finding that the funds are proceeds of crime or of terrorist activity).\n\nConstruction in a strict grammatical sense, says Mr. Dokaj, is based on the presumption that the statute was drafted properly to achieve parliamentary purpose. While the legislative text is the source from which parliamentary intent is most likely inferred, the Court must look not to the text, but to the meaning of the statute. It is open to the Court to import words so long as it does not add to what is already implied by the statute. Parliament could not reasonably have intended two different mechanisms of review flowing from the same decision under subsection 12(1). If two reasonable interpretations can be found, the Court should adopt that which is more logical.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-13", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 20–21", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "Mr. Dokaj argues that where an obvious conflict exists between the letter and the spirit of the law, the court should undertake to interpret logically to give effect to legislative intent and override those written expressions incompatible with the purpose of the law. Moreover, section 24, the review provision of the Act, precludes review except as provided in sections 25 to 29. This, he says, is indicative of Parliament's intent to include both sections 27 and 29 under the statutory right of appeal in section 30. Since a section 29 decision, of necessity, flows from section 27, the two cannot be separated because the second decision is mandated by the making of the first decision. The two are inextricably intertwined and the appeal process must encompass all logical and correlative decision-making that follows from it.\n\nRegarding the Minister's position that the Act should be interpreted in the same manner as the Customs Act, Mr. Dokaj submits that to do so would be improper. The two statutes are similar in structure, but not in purpose. For instance, under the Customs Act, goods seized are automatically forfeited making it logical to preclude a review of penalty. In contrast, the Act does not entail automatic forfeiture; it requires return of the funds unless there are reasonable grounds for believing that the funds flow from terrorist activities or are proceeds of crime. Section 23 of the Act must be read in conjunction with subsection 18(2). The penultimate distinction between the Customs Act and the Act, according to Mr. Dokaj, is that under the former a penalty is purely discretionary whereas the latter dictates mandatory return unless subsection 18(2) is put into play.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-14", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 22–26", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "Mr. Dokaj contends that the Minister's interpretation results in a cumbersome and complex review mechanism whereby a person, from whom funds have been seized (who wishes to have the decision reviewed), must engage in two different proceedings on substantially the same facts. ANALYSIS\n\nIn Bell Expressvu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, Mr. Justice Iacobucci, at paragraphs 26 to 29, discussed the principles of statutory interpretation. Those paragraphs (citations omitted) state:\n\nIn Elmer Dridger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: ...I note as well that, in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment \"is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects\".", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-15", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 27–28", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article \"Statute Interpretation in a Nutshell\" (1938), 16 Can. Bar Rev. 1, at p. 6, \"words, like [page581] people, take their colour from their surroundings\". This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger's principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as \"the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter\"...\n\nOther principles of interpretation -- such as the strict construction of penal statutes and the \"Charter values\" presumption -- only receive application where there is ambiguity as to the meaning of a provision...", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-16", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "para 29", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "What, then, in law is an ambiguity? To answer, an ambiguity must be \"real\" ... The words of the provision must be \"reasonably capable of more than one meaning\"... By necessity, however, one must consider the \"entire context\" of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.'s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General),[1999] 1 S.C.R. 743, at para. 14, is apposite: \"It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids\" (emphasis added), to which I would add, \"including other principles of interpretation\". [24] Guided by these principles, I turn to the Act which is the result of an initiative that is not unique to Canada. The Financial Action Task Force (FATF), of which Canada is a member, is comprised of approximately 40 nations (all of them industrialized). FATF is committed to addressing, among other things, the sharing of information in relation to transnational crime. The Act received Royal Assent on June 29, 2000, and many of its provisions have been introduced piecemeal. [25] The objectives of the Act are set out in section 3 therein and include the following: (a) to implement specific measures to detect and deter money laundering and the financing of terrorist activities and to facilitate the investigation and prosecution of money laundering offences and terrorist activity financing offences, including ... (ii) requiring the reporting of suspicious financial transactions and of cross-border movements of currency and monetary instruments.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-17", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "para 29", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "(b) to respond to the threat posed by organized crime by providing law enforcement officials with the information they need to deprive criminals of the proceeds of their criminal activities, while ensuring that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves; and (c) to assist in fulfilling Canada's international commitments to participate in the fight against transnational crime, particularly money laundering, and the fight against terrorist activity. [26] Of particular concern, here, is the objective stipulated in sub-paragraph 3(a)(ii). Implementation of this objective was to have been achieved through Part 2 of the Act which provides for a currency reporting regime whereby importers and exporters of currency must make a report to a customs official whenever they import or export large quantities of currency or monetary instruments into or out of Canada. Part 2 of the Act became effective with the coming into force of the Cross-border Currency and Monetary Instruments Reporting Regulations, SOR/2002-412 (the Cross-border Regulations) on January 6, 2003. The relevant reporting requirements in this case (involving the exportation of currency) stem from subsection 12(1) and paragraph 12(3)(a) of the Act in conjunction with sections 2, 3, and 11 of the Cross-border Regulations. These provisions require every person who exports, from Canada, currency or monetary instruments worth $10,000 or more to report this exportation to a customs official.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-18", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "para 29", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "[27] When reports are made with respect to cross-border movements of currency or monetary instruments in excess of $10,000, the reports are forwarded to the Financial Transaction Reports Analysis Centre of Canada (FINTRAC) which apparently possesses expertise in tracking and analysing international currency and monetary instruments transfers. If patterns appear, FINTRAC may become suspicious that the funds constitute \"dirty\" money in which case information may be passed on to a law enforcement agency. [28] Notably, the Act does not prohibit the transporting of large amounts of currency. Rather, it requires that amounts exceeding $10,000 be reported. The obligation to report arises in all cases, i.e. whether the money is \"dirty\" or otherwise. [29] The scheme in relation to the transporting of more than $10,000 of currency or monetary instruments is contained in sections 12 through 39 of the Act and in the Cross-border Regulations. In circumstances where a person exports from Canada currency worth more than $10,000 and fails to report the exportation, subsection 18(1) of the Act provides that the currency is subject to seizure as forfeit, by a customs officer, if the customs officer believes on reasonable grounds that subsection 12(1) of the Act has been contravened. By virtue of subsection 18(2) of the Act, the customs officer must return the seized currency or monetary instruments less the prescribed penalty (which ranges from $250 to $5,000 under section 18 of the Cross-border Regulations) unless the officer has reasonable grounds to suspect that the currency is proceeds of crime or funds for terrorist financing.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-19", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 30–32", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "Section 23 of the Act stipulates that (subject to return under subsection 18(2) and the review provisions of sections 25 to 31) currency seized as forfeit under subsection 18(1) is automatically forfeited to Her Majesty in Right of Canada from the time of the contravention in respect of which it was seized and no act or proceeding after the forfeiture is necessary to effect the forfeiture.\n\nSection 25 of the Act permits either the person from whom the currency was seized or the lawful owner of the currency to request a decision of the Minister[1] as to whether subsection 12(1) of the Act was contravened, provided such a request is made in writing within 90 days after the date of the seizure. If such a request is made, the Commissioner[2] is obliged to serve that person with written notice of the circumstances of the seizure, pursuant to subsection 26(1) of the Act. The person is then entitled, under subsection 26(2), to provide any evidence in the matter that he or she wishes to submit provided that the evidence is tendered within 30 days of receiving the Commissioner's written notice.\n\nThe Minister is required, under section 27 of the Act, to make a decision with respect to whether subsection 12(1) of the Act was contravened. If the Minister decides that there was no failure to report, the currency or the assessed penalty must be returned to the person, pursuant to section 28 of the Act. If, on the other hand, the Minister decides that there was a failure to report, the Minister will, under section 29 of the Act, determine the appropriate sanction for the infraction, including whether to confirm the forfeiture (where the customs officer has determined that the currency or monetary instruments constitute proceeds of crime or terrorist financing).", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-20", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 33–35", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "Section 30 of the Act permits the person who requested a decision of the Minister to appeal that decision by way of an action in the Federal Court. The narrow issue is which decision is appealable, the section 27 decision, the section 29 decision, or both.\n\nWith respect, I do not share Mr. Dokaj's view that a decision under section 27 and a decision under section 29 constitute the \"same decision\". A reading of the provisions simply does not support such an interpretation. Section 27 requires nothing more and nothing less than for the Minister to decide whether subsection 12(1) was contravened. The fact that an affirmative response precipitates a review of the penalty which, in turn, results in another determination does not convert the two decisions into a single determination.\n\nThe decisions of the Minister pursuant to sections 27 and 29 are discrete decisions. One deals with contravention; the other deals with penalty and forfeit. Section 27 stipulates that the Minister shall decide whether subsection 12(1), i.e. the requirement to report, was contravened. The wording is unequivocal and leaves no room for doubt. Section 29 provides that, in circumstances where the Minister determines that there was a failure to report, the Minister is to review the quantum of the sanction imposed by the customs official under subsection 18(2), i.e. full forfeiture or a penalty ranging from $250 to $5,000. The Minister will either confirm the customs official's determination with respect to sanction or reduce it to some lesser penalty.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-21", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "para 36", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "What then of the appeal procedure provided for in section 30 of the Act? I share the Minister's view that the section provides for a statutory appeal in relation to the determination made under section 27. It does not permit an appeal of a decision made under section 29. For ease of reference, subsection 30(1), section 25 and subsection 27(1) are again reproduced. The emphasis is mine. 30. (1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant. 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. 27. (1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened. 30. (1) La personne qui a présenté une demande en vertu de l'article 25 peut, dans les quatre-vingt-dix jours suivant la communication de la décision, en appeler par voie d'action devant la Cour fédérale à titre de demandeur, le ministre étant le défendeur. 25.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-22", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 36–37", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l'article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s'il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. 27. (1) Dans les quatre-vingt-dix jours qui suivent l'expiration du délai mentionné au paragraphe 26(2), le ministre décide s'il y a eu contravention au paragraphe 12(1).\n\nThere is no ambiguity in the language. The Act authorizes an appeal in relation to a decision of the Minister under section 25. Section 25 relates only to a decision as to whether subsection 12(1) was contravened (the provision that imposes the obligation to report). It necessarily follows that the references to \"a decision\" and \"the decision\" in subsection 30(1) refer to the Minister's determination under section 27 of the Act. In my view, it cannot reasonably be construed in any other way. Consequently, the Federal Court's jurisdiction, pursuant to section 30 of the Act, is limited to reviewing the decision under section 27 of the Act. That decision is with respect to whether or not there was a contravention of the Act under subsection 12(1).", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-23", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 38–39", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "While other ministerial decisions taken in the context of a seizure under the Act, such as a decision under section 29, may be the subject of judicial review applications initiated under section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, they cannot be the subject of a statutory appeal brought pursuant to section 30 of the Act. Section 24 of the Act constitutes a strong privative clause that insulates, but does not immunize, decisions (other than those under section 27) from judicial review. Indeed the Minister takes the position that judicial review of such decisions is available and the existence and ambit of the privative clause is to be assessed in the consideration of the factors comprising the pragmatic and functional analysis. (see: Pushpanathan v. Canada(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).\n\nI agree with Mr. Dokaj that the result is one that is both awkward and inconvenient. I disagree, though, with his thesis that Parliament could not reasonably have intended two different mechanisms of review regarding the same decision. First, I have determined that the decisions are discrete. Second, I have concluded that the interpretation of the provision in question yields the result that Parliament's intention was to restrict the statutory appeal to decisions made under section 27 of the Act. Third, even in circumstances where the result can be viewed as unfair, if such a result is contemplated by the legislation, it does not displace Parliament's intent: Medovarski v. Canada (Minister of Citizenship and Immigration) 2005 SCC 51.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-24", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 40–41", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "My conclusion in this respect is supported by reference to the jurisprudence dealing with the analogous seizure review and appeal mechanism provided in the Customs Act. The similarity between the seizure review and appeal mechanism contained in the Act and that contained in the Customs Act is readily apparent. Specifically, the sections concord as follows: section 12 of the Act with section 12 of the Customs Act; section 18 of the Act with sections 110 and 117 of the Customs Act; section 23 of the Act with section 122 of the Customs Act; section 24 of the Act with section 123 of the Customs Act; section 25 of the Act with section 129 of the Customs Act; section 26 of the Act with section 130 of the Customs Act; section 27 of the Act with section 131 of the Customs Act; section 28 of the Act with section 132 of the Customs Act; section 29 of the Act with section 133 of the Customs Act; and section 30 of the Act with section 135 of the Customs Act.\n\nA review of these provisions indicates that Parliament intended that the seizure review and appeal mechanisms in the Act mirror and complement those found in the Customs Act so that the two regimes can operate harmoniously. The same basic scheme is to apply in relation to both Acts. It is also notable that Parliament entrusted the administration and enforcement of the cross-border currency reporting regime in the Act to the same customs officials who are assigned and experienced with the administration and enforcement of the \"goods reporting regime\" in the Customs Act.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-25", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "para 42", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "The Federal Court has concluded that its jurisdiction on a section 135 Customs Act statutory appeal is confined to determining whether there has been a contravention of the Customs Act that would justify the seizure. The Court is precluded from dealing with any other issues on such statutory appeals, including reviews of decisions rendered by the Minister in relation to sanctions. An individual who disagrees with the sanction imposed for contravening the Customs Act must resort to section 18 of the Federal Courts Act: ACL Canada Inc. v. Canada (1993), 107 D.L.R. (4th) 736 (F.C.T.D.); Time Data Recorder International Ltd. v. Canada (Minister of National Revenue - M.N.R.) (1993), 66 F.T.R. 253 aff'd. (1997), 211 N.R. 229 (F.C.A.); Nerguizian v. Canada (Minister of National Revenue - M.N.R.) (1996), 121 F.T.R. 241 (F.C.T.D.); He v. Canada (2000), 182 F.T.R. 85 (F.C.T.D.).", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-26", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 43–44", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "Mr. Justice MacKay, in ACL Canada Inc, supra, opined as follows: I note in passing that, if my interpretation of the Act is correct, there is an anomalous situation presented for anyone seeking to question the Minister's decisions in relation to seizures and forfeitures. The Act provides for an appeal of a decision of the Minister on the issue of whether there has been a contravention of the Act or regulations and such an appeal may be made by way of an action in this court within 90 days of notice of the decision. The exercise of discretion in imposing the penalty, like any other administrative discretion, even where there is a privative clause, is subject to judicial review in this court, but since amendments to the Federal Court Act effective February 1, 1992, relief must be sought by an application for judicial review, not by an action, to be commenced within 30 days of the decision sought to be reviewed, unless the court grants an extension of time to apply. The person affected by Customs seizures and penalties can only be confused by the two remedial processes Parliament has now provided under the two statutes. Parliament might well consider whether both decisions of the Minister, under ss. 131 and 133, should be subject to review in a single proceeding, by way of an appeal or on application for judicial review.\n\nJustice MacKay's invitation to Parliament was extended in 1993. The Customs Act has not been modified. When Parliament adopted the Act, some seven years later, it had the opportunity to create a single statutory appeal for decisions rendered under sections 27 and 29 of the Act, if it so desired, but it chose otherwise. That choice, having been taken by Parliament, must, in my view, be respected by the Court.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-27", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 45–46", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "Mr. Dokaj claims that there exists a major distinction between the Act and the Customs Act that justifies deviation from the jurisprudence relating to the Customs Act. That distinction is with respect to what he describes as \"automatic forfeiture\" under the Customs Act versus \"no automatic forfeiture under the Act\". He contends that the Act creates a presumption for return of the money and the provision is mandatory.\n\nThe short answer to this submission is section 23 of the Act which, like section 122 of the Customs Act, does provide for automatic forfeiture. It is correct that subsection 18(2) specifies that unless the customs official has reasonable grounds to suspect that the currency or monetary instruments constitute proceeds of crime or terrorist financing, the seized currency or monetary instruments shall, on payment of a penalty in the prescribed amount, be returned to the individual or the lawful owner. This subsection is analogous to section 117 of the Customs Act which allows for the return of seized goods if money is paid equal to a maximum of the value of the goods plus the duties owing. The only distinction between the provisions is that the Customs Act does not delineate a test to be applied by the customs official in deciding whether or not the goods should be returned. Rather, it permits the Minister to exercise discretion in this regard.", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-28", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 47–49", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "It is also true that section 133 of the Customs Act uses the word \"may\" to describe the various options available to the Minister, when reviewing the sanction for non-compliance imposed by the customs official, while section 29 of the Act uses the word \"shall\". In my view, that is a difference without a distinction. It is unreasonable to suggest that the Minister could choose not to render any decision under section 133 of the Customs Act after finding that a contravention had occurred. The word \"may\", in that context, must be interpreted as mandatory rather than permissive (see: Canada(Attorney General) v. Laidlaw (1998), 237 N.R. 1 (F.C.A.)).\n\nFinally, the fact that the privative clause at section 123 of the Customs Act refers to precluding review other than in the manner provided by section 129, while the privative clause at section 24 of the Act refers to precluding review other than in the manner provided by sections 25 to 30, in no way detracts from the clear and unambiguous language employed within those provisions. The similarities between the Act and the Customs Act far outweigh the minor distinctions. The overall scheme of both is the same and Parliament intended that they operate harmoniously.\n\nTo conclude, in my view, to interpret subsection 30(1) of the Act in the manner proposed by the plaintiff would require the insertion of words not included in the provision. Specifically, an amendment such as that set out below would be necessary. 30(1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision [and any subsequent decision under section 29] by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-37898-29", - "doc_type": "caselaw", - "act_code": "2005 FC 1437", - "act_short": "Dokaj", - "act_name": "Dokaj v. Canada (Minister of National Revenue)", - "section": "", - "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", - "marginal_note": "paras 50–51", - "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", - "part": "Federal Court", - "division": "", - "text": "Parliament chose not to insert such language and it is not for the Court to override Parliament's intent.\n\nIn the result, for the foregoing reasons, the answer to the question - does the Federal Court have jurisdiction pursuant to section 30 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 to review a ministerial decision issued pursuant to section 29 of that Act - is no. In the exercise of my discretion, I decline to award costs. ORDER THIS COURT ORDERS THAT the answer to the question set out below is \"no\". Does the Federal Court have jurisdiction pursuant to section 30 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 to review a ministerial decision issued pursuant to section 29 of that Act? \"Carolyn Layden-Stevenson\" Judge FEDERAL COURT NAME OF COUNSEL AND SOLICITORS OF RECORD DOCKET: T-1118-04 STYLE OF CAUSE: GJOVALIN DOKAJ v. MINISTER OF NATIONAL REVENUE PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: OCTOBER 4, 2005 REASONS FOR ORDER: LAYDEN-STEVENSON J. DATED: OCTOBER 24, 2005 APPEARANCES: MATTHEW McGARVEY FOR THE PLAINTIFF JAN BRONGERS FOR THE DEFENDANT SOLICITORS OF RECORD: SHORE DAVIS McGARVEY FOR THE PLAINTIFF OTTAWA, ONTARIO JOHN H. SIMS, Q.C. FOR THE DEFENDANT DEPUTY ATTORNEY GENERAL OF CANADA", - "current_to": "2005-10-24", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" - }, - { - "id": "fc-62413-1", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "paras 1–3", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "Robert Bo Da Huang [the Applicant] is self-represented and appeared with the assistance of an interpreter. He applies for judicial review of a decision made by a delegate of the Minister of Public Safety and Emergency Preparedness, dated May 24, 2012 [the Decision], in which she decided that: i) there had a been a contravention of s. 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 [the Act], and ii) that the currency which had been seized from the Applicant would be held as forfeit pursuant to paragraph 29(1)(c) of the Act. The Facts\n\nOn January 5, 2011, the Applicant was scheduled to fly from Vancouver to Hong Kong. When approached in the departures area of the Vancouver International Airport by a Canada Border Services Agency customs officer [the Officer], the Applicant admitted to carrying more than $10,000.00 in currency which he had not reported. A total of $15,760.00 in cash was found in the Applicant’s bag. It was not concealed but was organized into three bundles: one wrapped in elastic bands, one wrapped in a thin piece of paper and one loose bundle.\n\nFollowing an interview with the Applicant, the Officer decided to hold the seized currency as suspected proceeds of crime. The fact that the Applicant had previously been convicted of drug smuggling, had been unemployed since 2007 and had no other source of income since then were among the reasons provided by the Officer for his suspicions. The sum of $15,760.00 will be described as the “Seized Funds”.", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-2", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "paras 4–8", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "The Applicant contested the seizure to the Recourse Directorate and requested a Ministerial review pursuant to s. 25 of the Act. He provided the following explanation for the Seized Funds: (1) $ 6,700.00 was from the sale of his car; (2) $ 2,000.00 was “lucky money” given to him by his mother; and (3) the balance was his personal savings. He submitted a purchase agreement for the car, dated January 4, 2010 and a TD bank receipt indicating that the same amount had been deposited into his bank account.\n\nAn exchange with the adjudicator at the Recourse Directorate followed in which the Applicant was told that, although the $6,700.00 would be accepted as legitimate [the Legitimate Funds], he had failed to provide evidence to demonstrate an identifiable link between his savings and the “lucky money” and legitimate origins. This meant that the adjudicator still suspected that $9,060.00 of the Seized Funds was proceeds of crime. This amount will be described as the “Illicit Funds”. The Decision\n\nOn May 24, 2012, the Minister’s delegate informed the Applicant that all of the Seized Funds (i.e. $15,760.00) would be held as forfeit notwithstanding that only $9,060.00 was considered to be the Illicit Funds.\n\nThe reasons provide as follows: “Although there was evidence to support you received $6,700 from the sale of the vehicle, no additional corroborating evidence was provided to substantiate the legitimate origin of the remainder of the seized currency”.\n\nAt the hearing, held in Vancouver on May 21, 2013, counsel for the Minister conceded that the Respondent was satisfied that the Applicant had demonstrated that $6,700.00 of the Seized Funds was money earned from the sale of his car and did not represent proceeds of crime or funds used in the financing of terrorist activity. Jurisdiction", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-3", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "paras 9–11", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "The Applicant’s Notice of Application challenges not only the Minister’s decision to hold the currency forfeit under s. 29 but also the decision confirming the contravention of the Act pursuant to s. 27. However, s. 30 of the Act makes it clear that the question of whether the Act was contravened may only be challenged by way of an action in the Federal Court (Tourki v Canada (Minister of Public Safety & Emergency Preparedness), 2007 FCA 186 at paras 16-18; Kang v Canada (Minister of Public Safety & Emergency Preparedness), 2011 FC 798 paras 29-30). Thus, it is only the Minister’s decision to hold the Seized Funds forfeit pursuant to s. 29 that is open to challenge in this proceeding. The Issue\n\nIt became clear at the hearing that I considered the determinative issue to be whether s. 29 of the Act permits the Minister to hold forfeit only the Illicit Funds.\n\nSince the Respondent had no notice of the Court’s concern about this issue, the parties were asked to provide supplementary submissions. The Act", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-4", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "para 12", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "The following provisions of the Act are relevant: 3. The object of this Act is (a) to implement specific measures to detect and deter money laundering and the financing of terrorist activities and to facilitate the investigation and prosecution of money laundering offences and terrorist activity financing offences, including (i) establishing record keeping and client identification requirements for financial services providers and other persons or entities that engage in businesses, professions or activities that are susceptible to being used for money laundering or the financing of terrorist activities, (ii) requiring the reporting of suspicious financial transactions and of cross-border movements of currency and monetary instruments, and (iii) establishing an agency that is responsible for dealing with reported and other information; (b) to respond to the threat posed by organized crime by providing law enforcement officials with the information they need to deprive criminals of the proceeds of their criminal activities, while ensuring that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves; and (c) to assist in fulfilling Canada’s international commitments to participate in the fight against transnational crime, particularly money laundering, and the fight against terrorist activity. 12. (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. […] 18.", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-5", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "para 12", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "(1) If an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments. (2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities. […] 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. 29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister may, subject to the terms and conditions that the Minister may determine, (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada.", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-6", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "para 12", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it. (2) The total amount paid under paragraph (1)(a) shall, if the currency or monetary instruments were sold or otherwise disposed of under the Seized Property Management Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the currency or monetary instruments. 3. La présente loi a pour objet : a) de mettre en oeuvre des mesures visant à détecter et décourager le recyclage des produits de la criminalité et le financement des activités terroristes et à faciliter les enquêtes et les poursuites relatives aux infractions de recyclage des produits de la criminalité et aux infractions de financement des activités terroristes, notamment : (i) imposer des obligations de tenue de documents et d’identification des clients aux fournisseurs de services financiers et autres personnes ou entités qui se livrent à l’exploitation d’une entreprise ou à l’exercice d’une profession ou d’activités susceptibles d’être utilisées pour le recyclage des produits de la criminalité ou pour le financement des activités terroristes, (ii) établir un régime de déclaration obligatoire des opérations financières douteuses et des mouvements transfrontaliers d’espèces et d’effets, (iii) constituer un organisme chargé de l’examen de renseignements, notamment ceux portés à son attention en application du sous-alinéa (ii); b) de combattre le crime organisé en fournissant aux responsables de l’application de la loi les renseignements leur permettant de priver les criminels du produit de leurs activités illicites, tout en assurant la mise en place des garanties nécessaires à la protection de la", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-7", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "para 12", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "vie privée des personnes à l’égard des renseignements personnels les concernant; c) d’aider le Canada à remplir ses engagements internationaux dans la lutte contre le crime transnational, particulièrement le recyclage des produits de la criminalité, et la lutte contre les activités terroristes. 12. (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l'agent, conformément aux règlements, l'importation ou l'exportation des espèces ou effets d'une valeur égale ou supérieure au montant réglementaire. […] 18. (1) S’il a des motifs raisonnables de croire qu’il y a eu contravention au paragraphe 12(1), l’agent peut saisir à titre de confiscation les espèces ou effets. (2) Sur réception du paiement de la pénalité réglementaire, l'agent restitue au saisi ou au propriétaire légitime les espèces ou effets saisis sauf s'il soupçonne, pour des motifs raisonnables, qu'il s'agit de produits de la criminalité au sens du paragraphe 462.3(1) du Code criminel ou de fonds destinés au financement des activités terroristes. […] 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l'article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s'il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. 29.", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-8", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "paras 12–13", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "(1) S’il décide qu’il y a eu contravention au paragraphe 12(1), le ministre peut, aux conditions qu’il fixe : a) soit restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; b) soit restituer tout ou partie de la pénalité versée en application du paragraphe 18(2); c) soit confirmer la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34. Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en est informé, prend les mesures nécessaires à l’application des alinéas a) ou b). (2) En cas de vente ou autre forme d’aliénation des espèces ou effets en vertu de la Loi sur l’administration des biens saisis, le montant de la somme versée en vertu de l’alinéa (1)a) ne peut être supérieur au produit éventuel de la vente ou de l’aliénation, duquel sont soustraits les frais afférents exposés par Sa Majesté; à défaut de produit de l’aliénation, aucun paiement n’est effectué. The Statutory Context\n\nSubsection 12(1) of the Act requires individuals to report the importation or exportation of currency or monetary instruments equal to or greater than the prescribed amount. The Cross-Border Currency and Monetary Instruments Reporting Regulations, SOR/2002-412 [the Regulations] sets the prescribed amount at $10,000.00.", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-9", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "paras 14–16", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "Subsection 18(1) of the Act permits an officer to seize as forfeit currency or monetary instruments if there are reasonable grounds to believe that there has been a contravention of s. 12(1). However, the seized currency “shall” be returned to an individual upon payment of the penalty prescribed in the Regulations unless the officer has reasonable grounds to suspect that the funds are proceeds of crime or used for financing terrorist activity (together, the Suspicions). If the officer does hold such Suspicions, then the funds remain forfeit.\n\nIn my view, this section provides the foundation for seizure and it clearly sets out Parliament’s intention: if there is a failure to report, a penalty is payable but Canada will only seize for forfeit funds which are subject to the Suspicions. It is noteworthy that there is nothing in this section which precludes the retention of a portion of the seized currency or monetary instruments if an officer is satisfied that only a portion is suspicious.\n\nSection 25 permits a person from whom funds were seized to request a Minister’s decision about whether there was a contravention of s. 12(1), i.e. a failure to report. Under s. 29, if the Minister decides that such a contravention occurred, the Minister may return the currency or monetary instruments or confirm that they are forfeited. It is of note that s. 29 does not expressly preclude the return of a portion of seized funds once their legitimate origins have been established. Discussion", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-10", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "paras 17–19", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "The Applicant argued that the Decision was unreasonable because it ignored the additional corroborating evidence provided to substantiate the legitimacy of the Illicit Funds. However, having reviewed the evidence submitted by the Applicant and the record before the Minister, it is my view that it was reasonable for the Minister to hold forfeit the amount said to be the Applicant’s personal savings and the money he received from his mother.\n\nRegarding the Legitimate Funds, the Respondent submits in supplementary submissions, dated June 11, 2013, that the principles of statutory interpretation, namely the modern approach to statutory interpretation and the “implied exclusion” principle, lead to the conclusion that s. 29 does not grant the Minister discretion to return a portion of the Seized Funds to the Applicant. The Applicant also filed supplementary submissions, dated June 19, 2013, in which he disagreed with the Respondent’s position saying that it was unfair. He now asks that only the Legitimate Funds be returned to him.\n\nThe Respondent says that in Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at paras 26-27 (SCC), the Supreme Court of Canada confirmed that the modern approach to interpreting statutes requires that the words in legislation be read in their entire context and in their grammatical and ordinary sense harmoniously with the legislation’s scheme and object and the intention of Parliament. The Respondent argues that because there is no reference in either s. 29 or elsewhere in the Act to the partial return of seized currency, it is apparent that the Parliament did not authorize a partial return of seized unreported funds.", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-11", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "para 20", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "The Respondent also relies on the Supreme Court’s statements in Bell ExpressVu regarding the applicability of other statutory principles when there is ambiguity about the meaning of a provision. If s. 29 is deemed ambiguous, the Respondent submits that the “implied exclusion” principle applies. It stipulates that where legislation expressly provides for something in one provision, it is to be assumed that the same meaning does not apply where it is not mentioned in another provision. In this case, the Respondent says that Parliament’s intention not to provide for a return of a portion of seized funds in paragraph 29(1)(a) is manifest when contrasted with paragraph 29(1)(b) which allows the Minister to remit “any penalty or portion of any penalty…” [emphasis added] to an individual. The Respondent argues that the differential treatment of these proximate concepts, found mere subparagraphs apart, is a strong indication that Parliament had in fact turned its mind to the issue of partial relief for seized funds but decided against such a measure.", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-12", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "paras 21–22", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "Counsel for the Respondent further submits that this Court has specifically addressed this issue and determined that s. 29 does not permit partial relief from forfeiture. The issue was directly addressed by Mr. Justice Rennie in Admasu v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 451. The applicant in that case had failed to report just over $14,000.00 as he was boarding a flight for Ethiopia via Amsterdam. The Recourse Directorate accepted that $5,000.00 of the seized currency had a legitimate origin but refused to return that amount because the applicant had failed to identify a legitimate source for all of the seized currency. Mr. Justice Rennie noted the difference in language between paragraph 29(1)(a) and paragraph 29(1)(b) and concluded that the Act does not permit partial forfeiture of seized funds. He repeated this conclusion in Dhamo v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 443 at paras 16 and 33 where he said that it is not possible for the Minister to grant partial relief from forfeiture.\n\nIn Mohammad v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 148, Mr. Justice Martineau reached the same conclusion and Madam Justice Gleason has quoted Mr. Justice Rennie’s conclusion with approval although she did not find it necessary to decide the issue on the facts of her case, see Tran v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 600.", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-13", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "paras 23–25", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "The Respondent stresses the importance of judicial comity and urges me to follow these decisions. As noted by Mr. Justice Marc Noël in Allegran Inc. v Canada (Minister of Health), 2012 FCA 308, the doctrine of comity seeks to promote certainty in the law by preventing the same issue from being decided differently by different judges of the same court.\n\nThe Respondent submits that it is only where there are “strong reasons to the contrary” that decisions of judicial colleagues should not be followed (Apotex Inc. v Pfizer Canada Inc., [2013] FCJ No 562 at paras 13-14 (FC); Altana Pharma Inc. v Novopharm Ltd., 2007 FC 1095 at para 36). According to the Respondent, this has been interpreted to meant the presence of one of the following factors: -Subsequent decisions have affected the validity of the impugned judgment; -It is considered that some binding authority in case law or some relevant statute was not considered; -The judgment was unconsidered, a nisi prius judgment given in circumstances familiar with all trial judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.\n\nThe Respondent submits that none of these factors are present in the current case and thus there is no reason to depart from the four recent judgments of this Court.", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-14", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "paras 26–27", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "However, in Allegran Inc., supra at paragraph 48, the Federal Court of Appeal indicated that a judge of this Court may depart from conclusions of law by another judge of the Court where he or she is convinced that a departure is necessary and can articulate cogent reasons for doing so. This Court has also acknowledged an exception to the principle of judicial comity where a judge is of the view that, if a previous decision of the Court were followed, it would create an injustice (Almrei v Canada (Minister of Citizenship and Immigration), 2007 FC 1025 at para 62).\n\nWith great respect to my colleagues, I am unable to agree with their conclusion that, because the Act specifies in paragraph 29(1)(b) that a portion of the penalty may be returned, it follows that a portion of the seized funds which is legitimate may not be returned under paragraph 29(1))(a) because that paragraph does not refer to a “portion”.", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-15", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "para 28", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "My inability to agree is based on the following points which, in my view, constitute “strong reasons to the contrary”. I note that none of these points were referred to in the earlier Federal Court decisions: i. The objectives of Act are set out in s. 3 and confiscating legitimate funds does not further those objectives. In Sellathurai v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 255, the Federal Court of Appeal considered the Minister’s exercise of discretion under s. 29 of the Act. In that regard, it said at paragraph 53 that “The Minister’s discretion must be exercised within the parameters of the Act and the objectives which Parliament sought to achieve by that legislation”. In my view, it would not be reasonable for the Minister to exercise his discretion in favour of holding the Legitimate Funds forfeit; ii. The penalty for this Applicant’s failure to report the Legitimate Funds is $250.00 according to s. 18(a) of the Regulations. Confiscation of $6,700.00 effectively imposes a draconian penalty not mandated by the Act; iii. In my view, if Parliament had intended to confiscate the Legitimate Funds it would have stated that fact in unequivocal terms. Although counsel for the Respondent was given the opportunity to make submissions on this issue, the Court was not provided with any legislative history showing that Parliament intended to appropriate such funds; iv. If the Applicant had had the documents about the sale of his car at the airport, the Officer would have been required by s. 18(2) of the Act to return the Legitimate Funds at that time subject to payment of the prescribed penalty. Accordingly, it makes no sense that it is open to the Minister to confirm the forfeiture of those funds at a later date. v.", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-16", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "para 28", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "The interpretation advanced by the Respondent could lead to absurdly punitive results. For example, if $100,000.00 was seized and $99,000.00 was later shown to be legitimate, the Respondent would nevertheless say that the Minister has no discretion to return the $99,000.00 under paragraph 29(1)(c) of the Act. In Re: Rizzo & Rizzo Shoes Ltd., [1998] 1 SCR 27 (SCC) at paragraph 27, the Supreme Court of Canada noted that “It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences.” Absurdity is defined in the decision to include interpretations that lead to inequitable consequences and those which are incompatible with the objects of the legislation. vi. Lastly, although the word “portion” appears in paragraph 29(1)(b), it is used in reference to the penalty which, according to the Regulations, cannot be more than $5,000.00. In my view, the interpretation of paragraph 29(1)(a), which could determine the fate of large sums of money, should not be based solely on the language used in a penalty provision. In other words, contrary to the Respondent’s submissions, I do not find that the penalty for failing to report and the forfeiture of suspicious funds are “proximate concepts”. This being so, I am not persuaded that the implied exclusion principle of statutory interpretation is applicable. Conclusion", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fc-62413-17", - "doc_type": "caselaw", - "act_code": "2013 FC 729", - "act_short": "Da Huang", - "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", - "marginal_note": "para 29", - "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", - "part": "Federal Court", - "division": "", - "text": "For all these reasons, it is my conclusion that the Decision to confirm forfeiture of the Seized Funds including the Legitimate Funds was an unreasonable exercise of discretion. ORDER THIS COURT ORDERS that The Decision is hereby set aside and the Applicant’s request for the return of the Legitimate Funds is to be reconsidered by the Minister in accordance with these reasons. “Sandra J. Simpson” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1219-12 STYLE OF CAUSE: ROBERT BO DA HUANG v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: May 21, 2013 REASONS FOR ORDER AND ORDER: SIMPSON J. DATED: June 28, 2013 APPEARANCES: Robert Bo Da Huang FOR THE APPLICANT Philippe Alma FOR THE RESPONDENT SOLICITORS OF RECORD: Robert Bo Da Huang Self-Represented Vancouver, British Columbia FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada Vancouver, British Columbia FOR THE RESPONDENT", - "current_to": "2013-06-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" - }, - { - "id": "fpslreb-520990-1", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 1–6", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor, Mark Menzies, is a border services officer at the Canada Border Services Agency (“the Agency”) working at the Blue Water Bridge Port of Entry in Sarnia, Ontario. He began his employment in 1996 as a customs inspector, as the position was then known, and had 18 years of service when he filed this grievance to challenge the imposition of a 20-day disciplinary suspension.\n\nOn March 2, 2015, the grievor failed to report to work for his “midnight shift”. Upon receiving a call from his supervisor, he made immediate arrangements to come to work and was on site, ready to work, an hour after the start of his scheduled shift.\n\nThe grievor had a significant disciplinary record that included 6 prior incidents of failing to report to work, as well as multiple incidents of other kinds of misconduct, for which he had received written reprimands and suspensions of 2, 5, 10, and 15 days. None of the prior disciplinary actions had been grieved.\n\nThe grievor acknowledged that his failure to report to work violated the Agency’s Code of Conduct and was unacceptable conduct warranting discipline. However, he took issue with the 20‑day suspension he received, which he considered excessive.\n\nAccordingly, the only issues for the Board to determine are whether the disciplinary action imposed was excessive and, if so, what lesser disciplinary action should be substituted.\n\nI have determined that the 20‑day suspension is excessive and substitute a 4‑day suspension.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-2", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 7–9", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The Board heard testimony from Sebastian Marschner, currently the regional manager of the Agency’s Trusted Trader programs, who was a superintendent in the commercial operations section at the relevant time, and from Robert Long, currently the chief of commercial operations, who was then the acting chief. The grievor testified on his own behalf.\n\nMr. Marschner was the superintendent on duty who reported the incident. He confirmed at the hearing that the grievor had failed to report for his “midnight shift”, which was scheduled from 23:10 on March 2 to 08:00 on March 3, 2015. When Mr. Marschner called him at 23:30, the grievor said that he thought that he was working an afternoon shift, realized his error, apologized for it, and said that he would be in as soon as he could. Mr. Marschner reported at the time, and testified at the hearing, that the grievor reported for duty ready to work (meaning fully uniformed and armed) at 00:10 hours on March 3, 2015, one hour after the start of his scheduled shift.\n\nWhen Mr. Marschner reported the incident, Mr. Long asked him to verify if there had perhaps been a shift change that might explain the grievor’s failure to report to work. There had been no shift change. Ultimately, he tasked Mr. Marschner with conducting an investigation.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-3", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 10–12", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On March 17, 2015, Mr. Marschner conducted an investigation, the purpose of which was to obtain more information and to give the grievor an opportunity to provide any additional considerations that should be taken into account. When asked if management should consider any mitigating circumstances, the grievor apologized again. He stated that it had been nearly two years since his last failure to report and that he would make every effort not to repeat this conduct. He raised no other explanation or mitigating circumstances.\n\nOn April 9, 2015, Mr. Marschner conducted a pre-disciplinary meeting, the purpose of which was to present his preliminary findings and to receive any additional information that should be considered before any disciplinary decision was made. Mr. Marschner reviewed the facts and conveyed his finding that the grievor’s failure to report to work was a violation of the sections of the Agency’s Code of Conduct dealing with neglect of duty and hours of work. He gave the grievor an opportunity to respond to those findings and to present any further mitigating circumstances. The grievor responded that he had nothing to add.\n\nMr. Marschner testified that typically, he would have led the process through to the end; that is, he would have decided upon a disciplinary action and imposed discipline. However, in this case, it was clear that the discipline would be more than five days’ suspension, which is the longest suspension that an Agency superintendent can impose. Therefore, some time after the investigation, he turned the file over to Mr. Long.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-4", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 13–15", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "However, Mr. Marschner could not recall when, how, or by whom the decision to do that was made. He testified that when considering discipline, management generally consults with labour relations specialists throughout the process. He would have been involved in the decision-making process, relaying what had taken place and the results of the investigation, but he did not recall making that decision or making any recommendations about a specific disciplinary action.\n\nOn May 11, 2015, Mr. Long conducted the disciplinary meeting. The record of the meeting lists the mitigating and aggravating factors considered as follows: … · The following mitigating factors were considered: Ø Length of service — 18 years; your CSD is February of [sic] December of 1996 Ø Demonstrated remorse - you were genuine and sincere in your apology for the failure to report for duty Ø Employee response to management’s investigation of alleged misconduct - you have been fully cooperative in all meetings and exchanges with management with respect to this investigation · The following aggravating factors were considered: Ø This is your eighth incident of discipline. The most recent was in 2014 which was a suspension without pay for a duration of 15 days or 112.5 hours due to misconduct. Ø Your failure to report for duty makes it difficult for the employer to manage its operations efficiently. …\n\nMr. Long explained that twice a year, employees use their seniority to bid on the shifts they want. When all shifts are filled, they are notified by email, and the shifts are posted on a centrally located bulletin board. Changes can then be made to the schedule at the request of either management or an employee, and an updated schedule is posted weekly. Employees know their schedule months in advance.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-5", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 16–17", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Long explained why failing to report for work is a serious matter for the Agency and how it can significantly impact operations. He said that especially on a midnight shift, a failure to report can make things very difficult, as the staff complement is reduced. A failure to report creates a significant amount of work for the superintendent, who should be making shift schedules, responding to stakeholders, and dealing with any other issues that arise. Instead, the superintendent must spend time calling the employee who has failed to report for duty. If the superintendent cannot reach the employee, they are obliged to carry out a wellness check. This entails going to the employee’s residence with another officer, which takes time and further depletes the staff complement on site.\n\nThe superintendent may try to call another employee to come in on overtime. This is a complex procedure and can take hours, especially for a “midnight shift” as it is typically difficult to have anyone come in at that time. Or the superintendent may have to shut down a commercial line or try to borrow an officer from the travellers operation. The absence may affect secondary inspections, which must be done by two officers for safety reasons, thus impacting health and safety in the workplace if two officers are not available.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-6", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 18–20", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "There is no system for logging in — border services officers are treated like law-enforcement officers. They are simply expected to be there. Unexpected absences can put their colleagues in an uncomfortable position as it is up to them to notify a superintendent of any absence. Since they do not want to do that, they will sometimes choose to say nothing and instead close a lane or take some other action. At times, superintendents are not even aware that an officer has failed to report until traffic backs up or other problems occur.\n\nMr. Long said that while some jobs are not time sensitive as to when the work is done, it is not so for border services officers. Arriving an hour late does not necessarily avoid problems. If the lines cannot be covered and trucks are backing up, then the Agency is not meeting its obligations to its stakeholders. That can result in calls and complaints, some of which would be to the Agency’s president or vice president. However, Mr. Long confirmed that he had received no report of any actual impact on operations arising from the incident on March 2, 2015.\n\nMr. Long testified that he decided on the disciplinary action. He said that Mr. Marschner would have consulted with the Agency’s regional labour relations section and that at some point, he would have realized that the disciplinary action would be more than a 5‑day suspension and, therefore, would have to go to Mr. Long. However, like Mr. Marschner, he could not recall when, how, or by whom this was determined.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-7", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 21–23", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Long testified that the purpose of discipline is not to punish but rather to be corrective and that he applied the principle of progressive discipline. He confirmed what he had written on the notice of disciplinary action — that to determine the disciplinary action, he had considered all relevant facts and policies, as well as any aggravating or mitigating circumstances. He elaborated that the policies he considered were the Agency’s discipline policy and guidelines for managers, as well as the Treasury Board’s guidelines for discipline.\n\nHe recalled that the main aggravating factor was the grievor’s substantial disciplinary record, especially the severity of the most recent disciplinary action, which had been a 15‑day suspension. As he understood progressive discipline, this established the starting point for the next disciplinary action which would have to be at least one step higher in severity. Mr. Long acknowledged that progressive discipline had not been applied that way in the past and indicated that he did not know why but assumed that previous management had simply applied it incorrectly.\n\nMr. Long did say that there was some flexibility to skip steps; for example, for very serious unacceptable behaviour, one could impose a 10‑day suspension in the absence of any prior disciplinary record. Therefore, the only other possibility open to him would have been to skip a step and impose a 25- or 30-day suspension, but he saw no need to do that in the circumstances.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-8", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 24–26", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Although he could have chosen a more severe disciplinary action, Mr. Long did not believe that there was any flexibility to go in the other direction — to impose anything less severe than the last disciplinary action imposed. Nor did he feel that he could impose a suspension of the same length as the previous one, that is, another 15- day suspension. Neither were half-steps available; for example, he could not impose a 16‑day suspension. Although 1‑ and 2‑day suspensions were available at the lower rungs of the disciplinary ladder, at the higher levels, the increment was 5 days, and the next step could only be 20 days.\n\nMr. Long said that there were many mitigating factors, such as the grievor’s 18 years of service and the fact that he was remorseful. The one that weighed most heavily for Mr. Long was that the grievor had fully co-operated with management throughout the whole process. When he imposed the 20‑day suspension, he was aware of the significant financial impact and tried to mitigate it to some extent by delaying its start until after an upcoming holiday, so that the grievor would not lose statutory holiday pay.\n\nThe grievor testified on his own behalf. He candidly advised that he had no independent recollection of the events, given the amount of time that had passed, but that he did not dispute any of the documents that recorded these events. He confirmed that he had failed to report to work as described by the deputy head’s witnesses. He did not dispute that that conduct warranted discipline. He took issue only with the severity of the disciplinary action.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-9", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 27–29", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "He testified that he had been under the impression that he was working afternoons rather than “midnights”. Asked how that could have happened, the grievor speculated that he could have looked at the wrong section of the schedule or simply copied it down wrong in his book. The grievor confirmed that when asked for mitigating factors in the investigation meeting, he had responded that it had been almost two years since his last failure to report, that he had apologized and that he had promised to make his best efforts to not repeat the mistake. He confirmed that he was then asked if he had anything to add, and that he had not added anything.\n\nThe grievor testified that he knew that he had made a mistake and that it was a violation of Agency policy and warranted discipline. However, he thought that he might receive a 2‑ or 3‑day suspension. Given the amount of time that had passed since his last failure to report, he did not think that his behaviour was serious enough to warrant a 20-day suspension.\n\nIn the grievor’s experience, management looked back to prior disciplinary action for conduct of the same type to determine disciplinary action. For example, the notice of disciplinary action he received for his 15‑day suspension said that any future behaviour “of this nature” could result in more serious discipline. Based on his experience when disciplined in the past, he assumed that management would look to his last disciplinary action that dealt with a failure to report to work, and progress from there.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-10", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 30–32", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "From the way it had been previously handled, he believed that similar policy violations were grouped together. Failures to report would be treated as a “stream” or a “business line”, while complaints from the public or legislative offences, for example, were considered different streams. Discipline was meted out based on the nature of the unacceptable conduct. When he had been disciplined for five “lates”, they were all grouped, and he had received the combined disciplinary action of a 2‑day suspension.\n\nThe grievor testified that he thought that “the punishment should fit the crime” as that principle is drummed into border services officers. They are directed to facilitate the lawful movement of goods and people across the border and are reminded that a traveller’s previous enforcement action is not relevant when looking at a new infraction of a different type. He felt that that was only right and that it should apply to employee discipline as well.\n\nThe grievor testified about serious personal issues that he had been experiencing at the time and for which he had sought help after these events. He said that his union representative raised this at the first level of the grievance process, as recorded in the notes of that meeting, as follows: “There are also some ongoing, personal issues at home which are confidential. These should also be considered as mitigating factors” [emphasis in original]. The grievor testified that the information was phrased that way because he wanted management to be aware that he was experiencing personal issues, but he was not prepared to divulge their nature at that time.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-11", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 33–35", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor was not involved in the third-level grievance meeting. However, the documents show, and it is not disputed, that his union representative raised the issue that the deputy head should have given the grievor’s personal issues more consideration when determining the disciplinary action.\n\nThe grievor testified that after these events, he received help from friends to deal with some of his personal issues, sought treatment from doctors for medical issues, and several years later, after he was diagnosed with a sleep disorder, he requested an accommodation from the Agency. The accommodation was to work a steady day shift to avoid the difficulty of changing his sleep cycle from days to afternoons to midnights. He noted that this change had helped a great deal and that he has had no subsequent late arrivals or failures to report to work. He sought to introduce medical records from several doctors he had consulted. However, the deputy head objected to their admissibility. I will address that objection later in this decision.\n\nThe grievor described the same operational impacts of a failure to report as had the deputy head’s witnesses, adding that it could also negatively impact fellow officers waiting to be relieved from their shifts. Nevertheless, he also said that in his view, being one hour late was not that serious and that the seriousness of a failure to report could be assessed in two ways. In certain circumstances, the impact on operations can be significant, but a failure to report to work is not necessarily serious when considered for the purpose of discipline. He had never heard about any resulting impact on operations and therefore, did not feel that this incident of failing to report to work was very serious.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-12", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 36–37", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Although the grievor referred to his failure to report for work as being “late”, he acknowledged on cross examination that he did not know he was supposed to be at work and that his absence could have been a good deal longer than one hour had he not received the call from Mr. Marschner.\n\nBefore this incident the grievor had received disciplinary actions nine times for various types of behaviour, as follows: · On June 27 and August 17, 2009, he received written reprimands for two separate violations of the firearms handling procedures. · On October 17, 2010, he received a written reprimand for revealing confidential Agency matters to the public and engaging in public criticism of the Agency. · On February 3, 2012, he received a 2‑day suspension for 2 incidents of smoking while on duty, one of which also involved delaying a traveller, which resulted in a complaint. · On February 28, 2012, he received a 5‑day suspension for two negative interactions with travellers. · On November 15, 2012, he received a written reprimand for failing to attend court as the Crown’s essential witness, resulting in the Crown’s case being dismissed. · On April 15, 2013, he received a 10‑day suspension for a negative interaction with a truck driver and one incident of failing to report to work. · On October 17, 2013, he received a 2‑day suspension for 5 incidents of failing to report to work. All the incidents were similar to the one at issue — he failed to report, was phoned by the Agency, and reported for work shortly after that. The 5 incidents occurred on October 9, 2011, November 9, 2011, September 12, 2012, March 23, 2013, and August 27, 2013. · On September 4, 2014, he received a 15‑day suspension for an extremely serious negative interaction with a driver.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-13", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 38–40", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor did not dispute any facts relating to those prior incidences of discipline. He said that there might be a few factors with which he disagreed but confirmed that he had chosen not to grieve any of them.\n\nThe deputy head argued that the post-discipline medical records that the grievor sought to introduce in evidence should not be admitted because he had not disclosed them in advance contrary to the Board’s pre-hearing disclosure requirements; their introduction changed the nature of the grievance and therefore offended the principle established in Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.); the information in them was untested hearsay; and they were not relevant to the period in question.\n\nThe deputy head did not suggest that the late disclosure was intentional but argued that pre-hearing disclosure requirements allow parties to prepare adequately for a hearing and that the late disclosure hindered its ability to make a fulsome argument. This raised an issue of procedural fairness. The deputy head did not dispute that it was provided with the documents as soon as the grievor received them but maintained that nevertheless, there was an element of surprise, as it had no knowledge that the grievor had even sought them.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-14", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 41–42", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The deputy head also submitted that a grievor cannot argue a new or different grievance at adjudication (see Burchill). The grievor tried to reconfigure the grievance to something that had not gone through the grievance process. The notes of the meeting held at the first level of the grievance process reflect that his union representative mentioned that the grievor was having “personal issues” but that they were confidential. He acknowledged that he had not wanted management to have any further information about his personal issues. The deputy head argued that the grievor could not have it both ways; he could not cite confidentiality and then ask the Board to consider issues of which management had no knowledge. There was no mention of a medical defence during the grievance process and introducing medical records at adjudication would amount to raising new grounds for the grievance.\n\nThe deputy head also submitted that the medical information was untested hearsay. It consisted of the clinical notes of four different medical professionals, none of whom testified. The deputy head asked the Board to draw an adverse inference against the grievor, given his failure to call any of the doctors as witnesses and to simply testify himself about the documents’ contents.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-15", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 43–44", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The deputy head also argued that the records were not relevant as they only began in June 2015, after both the misconduct and the disciplinary action had taken place. The grievor’s testimony confirmed that timing — he said that he first saw doctors only after these events. As cited by the Board in Peterson v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 29, the Supreme Court of Canada stated in Cie minière Québec Cartier v. Quebec (Grievance arbitrator), [1995] 2 SCR 1095 at para. 13, that a decision maker can rely on subsequent-event evidence only if it is relevant to the issues and sheds light on the reasonableness of a decision at the time at which that decision was made. If the 20-day suspension was justified at the time management imposed it, the Board cannot rely on later occurrences to annul that suspension on the sole ground that subsequent events render such an annulment fair and equitable, in the Board’s opinion.\n\nIn this case, management was not aware of any medical issues at the time it made the decision to give the grievor a 20-day suspension, and even if it had been aware of any such issues, no medical information or diagnosis was available as the grievor had not yet seen doctors. Nothing in the grievor’s medical records indicates that any diagnosis relates to the period of the misconduct, and there is no way of knowing if any such diagnosis existed at that time. The deputy head cited Tobin v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 76, for the proposition that management must craft a disciplinary action based on the best evidence available to it at the time.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-16", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 45–48", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The deputy head submitted that nothing was unreasonable about progressing from a 15‑ to a 20‑day suspension. The aggravating factors included the grievor’s disciplinary record (see Riche v. Treasury Board (Department of National Defence), 2013 PSLRB 35, in which a disciplinary history, none of which was grieved, was considered an aggravating factor).\n\nThe grievor had had nine incidents of discipline and more incidents of misconduct (some of the notices of discipline referred to more than one incident). None had been grieved or disputed in any way.\n\nAlthough the incident at hand was only one hour of lateness, the grievor acknowledged that it could have been considerably more had he not received a call from the superintendent as he did not realize that he was supposed to be at work. The evidence was clear as to the operational impact of an employee not showing up for a shift and why it is considered to be serious unacceptable conduct.\n\nMitigating factors were considered — the grievor’s length of service, his remorse, and especially his co-operation with the whole process. The personal and medical issues raised at the hearing as possible mitigating factors were not raised prior to the Board hearing, so management could not have taken them into account. The grievor did not testify to any link between his personal issues and his failure to report to work. He reiterated at the hearing that he simply got the schedule wrong.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-17", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 49–50", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The deputy head submitted that the principle of progressive discipline was properly applied and referred to Brown and Beatty, Canadian Labour Arbitration, 5th edition, at para. 7:72 (Rehabilitative Potential), and in particular to the portion which reads, in part, as follows: … The theory, very simply, is that by progressively increasing the severity of disciplinary sanctions for persistent misconduct, an employee will be encouraged to reform. Such a system enhances the fairness and efficacy of discipline as a corrective tool by ensuring that employees are not punished more harshly than necessary and are not caught by surprise.…\n\nThe deputy head argued that the Treasury Board’s Guidelines for Discipline, the Agency’s Guidance for managers with respect to discipline, and the Agency’s Discipline Policy all speak to the idea of progressive discipline; that is, discipline should be imposed in increasing levels of severity. And Mr. Long testified that the purpose of discipline is not to punish but rather to be corrective and that he applied the principle of progressive discipline.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-18", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 51–52", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The deputy head cited Reid-Moncrieffe v. Deputy Head (Department of Citizenship and Immigration), 2014 PSLRB 25, for the proposition that the principle of progressive discipline means that discipline at increasing levels of severity can be imposed in the context of different kinds of misconduct. In that case, Ms. Reid‑Moncrieffe had received a 25‑day suspension for conflict-of-interest and preferential-treatment issues, then a 30- day suspension for making long-distance calls at very minor cost. Her employment was then terminated for twice failing to report for work. An adjudicator noted that if the modest phone calls had led to the first disciplinary action, things would have been different, but as her most recent disciplinary action had been the 25‑day suspension, it was impossible to conclude that a 30-day suspension was unwarranted. Further, the adjudicator upheld 1 of the 2 absences as justification for terminating Ms. Reid‑Moncrieffe’s employment, and again, he said that although that misconduct alone would not warrant termination, having upheld the 30-day suspension, it was impossible to conclude that termination was unreasonable as the next step.\n\nThe deputy head argued that although the grievor’s last disciplinary action was about a driver complaint and not a failure to report to work, it did not preclude applying progressive discipline. Going from 15 to 20 days suspension was reasonable as the failure to report to work did not occur in isolation. Even if reporting to work one hour late could be considered not serious (with which the deputy head did not agree), the validity of the suspension depended on the grievor’s whole disciplinary record plus any aggravating and mitigating circumstances.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-19", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 53–57", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Between 2009 and 2014 the grievor had gone from a written reprimand to a 15‑day suspension. As well, there had been multiple failures to report to work, and by March 2, 2015, an increased level of discipline was warranted because the prior disciplinary action had not been successful.\n\nThe grievor’s position was that the parties were not as far apart on the issue of the admissibility of his medical records as the deputy head’s submission suggested.\n\nThe grievor acknowledged that technically, the Board’s pre-hearing disclosure policy had not been followed, but argued that he had substantively complied with it by giving the deputy head the documents as soon as possible. As well, the deputy head had alleged no specific prejudice as a result.\n\nAs for Burchill, the fact that the grievor experienced personal issues was raised at the first and third levels of the grievance process. His personal circumstances were a live factor throughout the grievance process, and management should have given it more weight.\n\nThat said, the grievor did not put his medical records forward as a medical defence. He did not argue that it was unfair of management to discipline him because he had a disability. Rather, he merely asked the Board to consider his challenging personal circumstances at the time, as the Board did in Desjardins v. Deputy Head (Shared Services Canada) and Treasury Board (Shared Services Canada), 2020 FPSLREB 43, when it found that the grievor in that case was understandably not focussed on being in perfect compliance with his employer’s letter of instruction, due to challenging personal circumstances.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-20", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 58–60", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor offered his medical records in this case only to corroborate his testimony about his personal circumstances and state of mind at the time, to help the Board evaluate the blameworthiness of the conduct and, to a certain extent, his disciplinary record. In Cie minière Québec Cartier, an adjudicator found that an employer had been justified in imposing a disciplinary action on the facts it had at the time but nevertheless relied on new evidence to overturn that disciplinary action. That is not what is asked of the Board in this case. The grievor asked the Board to consider the medical evidence as a mitigating factor only if it finds that management imposed an excessive disciplinary action and that, therefore a lesser disciplinary action must be preferred.\n\nThe grievor also noted that in Tobin and Peterson, post-discipline medical evidence was admitted. In Peterson, the Board specifically found that the evidence was relevant and therefore could be considered.\n\nMr. Long’s testimony was clear; in his mind discipline always went one way — one could never impose less than the last disciplinary action previously imposed. He saw the grievor’s prior 15‑day suspension as controlling. The 20-day suspension was the only disciplinary action he considered imposing because in his view, it was the next step. It is impossible to reconcile this with Mr. Long’s written statements and testimony that he considered all the aggravating and mitigating factors.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-21", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 61–63", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "What does it mean to consider the aggravating and mitigating factors in this context? Certainly, Mr. Long considered the grievor’s length of service and remorse, and he especially appreciated the grievor’s co-operation with the process. However, none of that influenced his decision. Mr. Long effectively fettered his discretion based on his understanding of the Treasury Board’s and the Agency’s policies and guidelines; however, the notion of progressive discipline upon which he based his decision is not found in those documents. Rather, the starting point when assessing discipline is always the behaviour itself, and then the aggravating and mitigating factors are considered.\n\nThe grievor could reasonably expect that lateness in reporting to work would be considered relatively less serious than the prior misconduct involving direct interaction with a driver that had resulted in a 15‑day suspension. Management’s discretion was fettered, and as a result it discounted the mitigating factors and overweighted one aggravating factor (the previous 15‑day suspension).\n\nThe notice of disciplinary action for the grievor’s previous lateness in reporting to work states that any future behaviour “of this nature” could result in increasing discipline, up to and including termination. Accordingly, even in its communications with the grievor, management acknowledged silos of conduct that while not watertight, indicate that the starting point is the nature of the conduct, with the severity of disciplinary action to be adjusted up or down from there.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-22", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 64–66", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As for mitigating factors, the grievor was a long-service employee and was generally recognized as a good border services officer. He has demonstrated significant improvement with respect to attending work as scheduled since being disciplined in October 2013 for five failures to report. This speaks to his rehabilitative potential. He was remorseful and fully co-operative with the process right up to and including the hearing before the Board.\n\nThe March 2, 2015, incident was not premeditated, and although being late with no good reason is serious in the abstract, this incident was not serious in the fact — nothing bad happened as a result, and short-staffing was acknowledged as a day-to-day issue. As well, the grievor’s personal life was in serious disarray at the time, and while it does not excuse the incident, it can and should be considered.\n\nThe grievor’s disciplinary record constitutes an aggravating factor to be considered, but it is not a controlling factor. All the serious disciplinary actions related to interactions with drivers. The 10‑day suspension had been followed by a 2‑day suspension for 5 incidents of failing to report to work. The disciplinary action for the March 2, 2015 incident should have progressed primarily from that 2‑day suspension. And the length of that suspension would suggest that the appropriate disciplinary action for the current incident should be a 1‑ or 2‑day suspension or perhaps a written reprimand considering the mitigating factors.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-23", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 67–69", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The decision in Canadian Food and Allied Workers Union, Local P-162 v. Wm. Scott & Company Ltd. (1976), [1977] 1 Canadian LRBR 1 (BC LRB) (“Wm. Scott & Company Ltd.”), which dealt with a disciplinary termination of employment, and the many decisions that followed and applied it to discipline, have established that the Board should pose three distinct questions when analyzing a disciplinary grievance: 1. Did the employee’s conduct warrant a disciplinary action? 2. If so, was the disciplinary action imposed excessive? 3. If it was, what alternative measures should be substituted?\n\nAt page 4, Wm. Scott & Company Ltd. provides a list (not intended to be comprehensive, but nevertheless useful) of factors to consider when addressing the first two questions. It states that one must consider the seriousness of the behaviour, whether it was premeditated or spontaneous, whether the employee had a long-standing and good record of service, whether progressive discipline was attempted, and whether the disciplinary action was consistent with the employer’s established policies or whether the employee was singled out for harsh treatment.\n\nThe deputy head bears the burden of proof in this matter; however, the grievor acknowledged that his failure to report to work was misconduct that warranted discipline. Therefore, the deputy head had to establish only that the disciplinary action it imposed for the misconduct was not excessive. The Board’s task is to determine whether the disciplinary action was excessive and, if so, what alternative measures should be substituted.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-24", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 70–71", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor testified to personal and medical issues for which he sought assistance after he received the 20-day suspension for the March 2, 2015, incident. He sought to introduce his medical records. The deputy head objected to their admissibility on several grounds, as outlined earlier. I heard the medical evidence, subject to it being admitted formally into the evidence before me and reserved my ruling as to its admissibility.\n\nThe deputy head argued that the late disclosure of the grievor’s medical records breached the Board’s pre-hearing disclosure requirements and was detrimental to the deputy head’s ability to prepare its case, thus raising an issue of procedural fairness. It asked the Board to use its discretion to refuse to admit the evidence on that basis. I note however that the deputy head alleged no specific prejudice that it suffered as a result, and that any element of surprise could have been addressed by the deputy head requesting a short or long adjournment. In the interest of ensuring that the grievor is afforded the opportunity to put all potentially relevant information before the Board, I would not rule the evidence inadmissible for a mere technical breach of the disclosure requirements.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-25", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 72–73", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I do not agree with the deputy head that the grievor breached the Burchill principle and tried to change the nature of the grievance after its referral to adjudication. This is a disciplinary grievance, and the onus is on the deputy head to justify the appropriateness of the disciplinary action. As well, the deputy head was made aware of the existence of potentially relevant personal issues at the first and third levels of the grievance process. Although the grievor did not divulge any details at that time, management was alerted, and the deputy head cannot have been taken by surprise when these issues were raised again at adjudication.\n\nThe deputy head submitted that the grievor’s medical records are hearsay evidence and that they are incomplete, lack context, and are untested without a doctor’s testimony to speak to them. The grievor argued that he did not seek to introduce them to establish a medical defence to his misconduct, but only to corroborate his testimony, and help the Board consider his personal circumstances as a mitigating factor, should it determine that a lesser disciplinary action would be appropriate. I agree that the grievor’s medical records are hearsay. As hearsay evidence is admissible in an administrative hearing, I do not rule them inadmissible on that basis, although I do note that they would not be of significant use to the Board without some explanatory and contextual testimony.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-26", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 74–76", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "However, I agree with the deputy head that the records are not relevant as they do not relate to the time period surrounding the incident of March 2, 2015. Although the grievor’s testimony suggested a link between what he experienced at that time and what the medical professionals recorded when he belatedly sought treatment, it is a tenuous link at best. I find that the grievor’s medical records are not sufficiently relevant to be admitted as evidence and therefore allow the deputy head’s objection on that basis. Accordingly, the grievor’s medical records do not form part of the Board’s record of these proceedings. I further note that even were they to be admitted, the weight that could be accorded them would be minimal without a doctor’s testimony linking the information contained in them to the period in question.\n\nThe Executive Director of the Board’s Secretariat will ensure that no copies of the grievor’s medical records (provisionally identified as Exhibits 3 and 4 during the hearing held on June 14 to 16, 2022) remain in the Board’s records of these proceedings.\n\nThe grievor had a significant disciplinary record when the March 2, 2015, incident of failing to report to work occurred. He had been progressively disciplined and had received several written reprimands as well as 2‑, 5‑, 10‑, and 15‑day suspensions. It was clear on the evidence that the last suspension of 15 days, was the reason he received a 20‑day suspension for misconduct that while serious, was certainly not serious enough on its own to warrant such a severe penalty.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-27", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 77–79", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Long was forthright in his testimony that he imposed a 20‑day suspension because the grievor had already had a 15‑day suspension, although it was not for failing to report to work. Mr. Long acknowledged that discipline had not been meted out that way in the past. However, he testified that his understanding of the principle of progressive discipline as outlined in the applicable policies and guidelines mandated such an approach. He felt that the prior 15‑day suspension was the controlling factor as to the severity of the disciplinary action to impose.\n\nMr. Long did say that there was flexibility to skip steps; for example, for very serious unacceptable behaviour, one could impose a 10‑day suspension in the absence of any prior disciplinary record. Therefore, as he saw it, the only other possibility open to him would have been to skip a step and impose a 25- or 30-day suspension, but he saw no need to do that in the circumstances.\n\nAlthough he could have chosen a more severe disciplinary action, Mr. Long did not believe that there was any flexibility to go in the other direction — to impose anything less severe than the last disciplinary action imposed. Nor did he feel that he could impose the same length of suspension as the previous one – 15 days. Half-steps were also not available. Mr. Long did not believe he could impose a 16‑day suspension which would be more severe than the previous 15 days. Although 1‑ and 2‑day suspensions were available at the lower rungs of the disciplinary ladder, at the higher levels, the increment between steps was 5 days. The next step could only be 20 days.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-28", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 80–81", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Long’s interpretation of progressive discipline is known as a lock-step approach. A disciplinary action is determined by simply going to the next step of the disciplinary ladder, regardless of the nature or seriousness of the behaviour. This kind of approach to discipline has long been rejected, even when it is mandated by an employer’s policy. But no such approach is mandated in this case. Although Mr. Long was clearly under that misapprehension, the applicable policies and guidelines do not mandate, or even imply a lock-step approach.\n\nFor example, the Treasury Board’s Guidelines for Discipline state this: … 4. Determining appropriate disciplinary action Each incident of alleged misconduct is considered on the basis of individual merit. Based on the circumstances, in management’s opinion, what corrective measures are necessary to correct the undesirable behaviour? The application of disciplinary measures is not to be punitive.… Mitigating circumstances, such as the employee’s length of service, past record, the seriousness of the offence, and the unique circumstances of each situation, may require variations in management’s response to seemingly similar offences. Whatever the response, disciplinary actions depend on the nature of the offence, the attendant circumstances, and any mitigating factors…. 5. Flexibility and application of discipline It is recommended to avoid the rigid equation of offences and disciplinary measures. Disciplinary action of a progressively more serious nature may be warranted when there are repeated incidents of misconduct. … [Emphasis added]", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-29", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 82–84", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Similarly, the Agency’s Guidance for managers with respect to discipline states this: … Flexibility and Application of Discipline Rigid equation of offences and disciplinary measures should be avoided. Disciplinary action of a progressively more serious nature is warranted for repeated incidents of misconduct or for a single act of serious misconduct. Determining Appropriate Disciplinary Measure Each incident of alleged misconduct must be considered on a case-by-case basis. Based on the circumstances, in the manager’s opinion, what corrective measures would be necessary to correct the unacceptable behaviour? The application of disciplinary measures should not be punitive in nature but rather corrective…. Mitigating circumstances, and the unique circumstances of each situation, may require variations in the manager’s response to seemingly similar offences.… … [Emphasis added]\n\nThe Agency’s Code of Conduct, Chapter 4, entitled, “Disciplinary Measures and Resolutions of Issues pertaining to the Code of Conduct”, states this: “A decision regarding disciplinary measures will be determined on a case-by-case basis taking into consideration the nature of the breach and the seriousness of the misconduct” [emphasis added].\n\nThese policies and guidelines clearly convey that they are not based on, and do not mandate, a lock-step approach. To the contrary, they stress that determining an appropriate disciplinary action must be done on a case-by-case basis and must be based on the nature of the offence and the specific circumstances of each situation. Nor do they suggest that suspensions must occur in pre-determined steps of 1, 2, 5, 10, 15, 20, 25, and 30 days, regardless of the nature of the behaviour.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-30", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 85–86", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The deputy head pointed out that the applicable policies and guidelines refer to disciplinary actions “in order of increasing severity”. It is true that the Treasury Board’s Guidelines for Discipline document prefaces its definition section as follows: “In order of increasing severity, disciplinary measures are as follows …”. It then lists and defines the different kinds of disciplinary actions that may be imposed, in the following order: oral reprimand, written reprimand, suspension, financial penalty, demotion, and termination. However, this simply explains that the order in which they are listed indicates their relative severity, as understood by the employer. A written reprimand comes after an oral reprimand on the list because it is considered to be a more severe disciplinary action. The Agency’s Discipline Policy reproduces the same list of disciplinary actions in its definition section to indicate by their placement on the list how the Agency views their relative severity.\n\nNothing in these policies and guidelines restricts management’s options for determining the length of a suspension by suggesting that it must always be longer than the last one or that it must increase by specific increments. The policies and guidelines say nothing that suggests a lock-step approach, but even if they did, as the policies of some employers do, it would clearly be an incorrect application of the principle of progressive discipline. The proportionality of a disciplinary action must always be assessed in light of the nature and the specific circumstances surrounding the behaviour that needs to change.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-31", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "para 87", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The decision in United Steel Workers of America, Local 5795 v. Iron Ore Company of Canada (2015), 262 L.A.C. (4th) 400 (NL) (“Iron Ore”), dealt with the impact of an employer’s lock-step discipline policy. Although the policies and guidelines applicable at the Agency do not have any lock-step requirement, Mr. Long, was under the impression that they did. Accordingly, the analysis in Iron Ore is relevant to this matter. In Iron Ore an arbitrator canvassed several prior decisions and analyzed the case before him as follows: … 122 Arbitrator Oakley in Iron Ore Co. of Canada and USW, Local 5795 (Winters), Re, (Lorne Winters) notes that the Progressive Discipline Policy of the Employer does not require the imposition of the penalty at the next step in the progressive discipline system. He also noted that an Arbitrator is not bound by the Progressive Discipline Policy when reviewing the penalty. In that case he refused to uphold the discharge of the Grievor, even though the Grievor had proceeded through step 4. 123 Brown and Beatty note at p.7-167 of their text that typically Arbitrators look at employment histories in which the employee persists in the same kind of misconduct more seriously than those that are marked by a series of different offences. In an extreme case, the earlier misconduct may be so minor and/or different from the final culminating incident that it may not count against the employee at all. 124 In Calgary (City) v. C.U.P.E., Local 37 (2010), 196 L.A.C. (4th) 225 (Alta. Arb.) (Tettensor) it was stated that notwithstanding the employer’s lock-step progressive discipline system (ie. next step on system applied even if unrelated misconduct), arbitrators should consider the specific circumstances to determine whether the discipline is reasonable.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-32", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "para 87", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "125 The Arbitrator in that case wrote in referring to the decision of Arbitrator Adams in the Livingston Industries Ltd. case, “he noted such models provide certainty for the parties to allow them to regulate their affairs without the need for excessive arbitral intervention”, but he also recognized that Adams also noted “that employers are constrained by the legal requirement of just and proper cause”. 126 That is most certainly the case with Arbitrators and in my view one must never lose sight of the fact that the system is a construct of management, not of the parties and that we are not dealing with something enshrined in the Collective Agreement. 127 In Calgary (City) v. C.U.P.E., Local 37 there is a further reference to Livingston Industries Ltd. and the Arbitrator notes that it states “the system can’t be determinative of the outcome. Arbitrators have an obligation to consider the specific circumstances of the misconduct in weighing whether the discipline falls within the reasonable range of employer responses.” 128 The Arbitrator in Calgary (City) v. C.U.P.E., Local 37 noted in the case before him that the City reserved the right to jump a step when this is justified by the nature of the misconduct. In his view the lock step approach should also be tempered when this is warranted by the circumstances. 129 I agree. … 132 Though the Policy states that violations of different rules shall be considered the same as repeated violations of the same rule for purposes of progressive discipline in that it demonstrates a pattern of misconduct, I conclude that blind and inflexible adherence to that is not appropriate when talking about correcting behavior. 133 The problem that needed addressing in this case was absenteeism.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-33", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "para 87", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Not calling in on time was clearly related to that. A seatbelt infraction was not. While one should not discount the seatbelt infraction entirely, in my view it cannot be and should not be accorded the same degree of weight as if that one day suspension had been for absenteeism or for not providing advance notice that he was going to be absent. 134 The level of discipline imposed in March should, in my view, have reflected that he was being disciplined only for not providing one hours [sic] advance notification that he was going to miss a shift and not as well for unjustified absenteeism. It should also, in my view, have reflected that his previous suspension was not for absenteeism or failing to provide timely advance notification but for something entirely different. … 138 In Etobicoke General Hospital v. O.N.A., 1977 CarswellOnt 702 (Ont. Arb.), the majority of a Board chaired by Arbitration [sic] Brandt distinguished between the significance of a record for an offence entirely unrelated to the offence committed on the occasion of the culminating incident and one which was related and because it was unrelated treated the culminating incident as standing alone. 139 The fact that the impact is just as great on the Employer if one does not provide advance notification as if one fails in that respect and is as well unjustifiably absent, and the fact that the seat belt violation should not be entirely discounted, are in my view adequately addressed by a suspension of three (3) days, the pinnacle of step 3 discipline. This was discipline greater than the one day suspension that had previously been imposed. …", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-34", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "para 88", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As cited in Iron Ore, an arbitrator in Canadian Union of Public Employees, Local 37 v. Calgary (City), 2010 CanLII 96455 (AB GAA), also addressed this issue in a case in which an employer had a lock-step disciplinary policy in place, as follows: … 110 … While I accept that arbitrators should give weight to an employer’s system of progressive discipline for the reasons outlined in the Livingston case, I also accept, as Arbitrator Adams states, that the system can’t be determinative of the outcome. We have an obligation to consider the specific circumstances of the misconduct in weighing whether discipline falls within the reasonable range of employer responses. The City reserves the right to jump a step when this is justified by the nature of the misconduct. In my view, the lock step approach should also be tempered when this is warranted by the circumstances. 111 … taking all of the circumstances here into consideration, I am of the view that imposing a penalty which places a twenty-five (25) year employee one (1) step from termination, which under the lock step approach could be relatively minor misconduct, for calling in late, is excessive and offends my sense of justice and equity. In my view a reasonable response would have been the imposition of another two (2) day suspension. …", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-35", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 89–90", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Long seemed to have a good deal of empathy for the grievor and was well aware of his obligation to determine and consider all the mitigating circumstances. His first response upon being notified of the incident was to ask if perhaps there had been a shift change that might explain the grievor’s failure to report to work. When he imposed the 20‑day suspension, he delayed its start until after an upcoming holiday, so that the grievor would not lose statutory holiday pay. It was clear that Mr. Long approached the matter and the grievor in good faith and with every intention of reaching a just determination. However, in my view, he incorrectly interpreted and misapplied the principle of progressive discipline and the applicable policies and guidelines.\n\nIn fact, it appears that the Agency might have misapplied the principle of progressive discipline and the applicable policies and guidelines even before the file reached Mr. Long. The evidence revealed that in the normal course, Mr. Marschner would have retained the file through to completion. As superintendent, he would have determined and imposed the disciplinary action, if it was a 5‑day suspension or less. It was determined at some point that it would definitely be more than 5 days, and therefore, the file was taken out of his hands and passed to Mr. Long. However, neither manager knew or could recall exactly how or by whom this decision was made. They both speculated that it likely arose from a discussion that Mr. Marschner would have had with a labour relations representative, with whom he would have consulted in the normal course.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-36", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 91–93", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "This gap in the evidence suggests that the decision that the discipline would definitely be more severe than a 5‑day suspension was made before anyone decided what the discipline would be. Further, it was not made by either Mr. Long or Mr. Marschner but was either made or recommended by someone else. Therefore, it is more likely than not that Mr. Long’s misunderstanding of the principle of progressive discipline and the applicable policies and guidelines was not his alone.\n\nWhoever determined the severity of the discipline did so before Mr. Marschner had an opportunity to make his own determination after considering all the circumstances and the mitigating and aggravating factors. Mr. Marschner testified that he was involved and passed on the information from the investigation but did not recall making any recommendation about discipline. Therefore, it is more probable than not that the decision to refer the matter up the ladder was based on the same assumption that Mr. Long made — that the principle of progressive discipline should be applied in a lock-step fashion based simply on the severity of the last disciplinary action imposed.\n\nI note again the Wm. Scott & Company Ltd. list of factors to be considered. As already mentioned, that list is not comprehensive, but it is nevertheless useful. The first factor listed is the seriousness of the behaviour at issue which must be considered first and foremost.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-37", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 94–97", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Had the grievor’s behaviour been a negative interaction with a traveller or truck driver, behaviour for which he had already received 5‑, 10‑, and 15‑day suspensions, then a 20‑day suspension might not have been excessive, depending, of course, on all the circumstances and the mitigating and aggravating factors. But this was not a negative interaction with a traveller. While there is no doubt that failing to report to work is a serious matter that can negatively impact operational safety and efficiency, it is simply not in the same league as negative interactions with drivers.\n\nThe grievor had also had prior incidents of failing to report to work, but the last one (on August 27, 2013) had occurred almost two years prior to the March 2, 2015, incident. And while both witnesses called by the deputy head, and even the grievor to some extent, spoke to the seriousness of a failure to report to work in the border services context, the best evidence of the relative seriousness of this behaviour is the previous discipline that the grievor received for it — a combined 2‑day suspension for five distinct incidents.\n\nIt is also telling that management waited until five such incidents had accumulated over a period of two years before imposing any discipline for them. The grievor was disciplined in October 2013 for failures to report to work in 2011, 2012, and much earlier in 2013. This suggests that had the fifth incident not occurred, the first four failures to report to work would likely have resulted in no discipline at all.\n\nFurther, he had received that 2‑day suspension after receiving suspensions of 5 and 10 days for more serious matters. Clearly, as Mr. Long acknowledged, management had not previously applied progressive discipline in a lock-step manner.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-38", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 98–100", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In these circumstances, the principle of progressive discipline would be correctly applied by primarily considering the prior combined 2‑day suspension for the five distinct similar incidents of failing to report and progressing from there, rather than jumping off from the 15‑day suspension that had been imposed for very serious behaviour of a completely different nature.\n\nHowever, this is not to say that progressive discipline would dictate simply going to the next step after the combined 2‑day suspension for five distinct failures to report while not considering the prior discipline received for other, more serious, behaviour. The grievor suggested that if five distinct similar prior incidents resulted in a combined 2‑day suspension, then proportional discipline for the March 2, 2015 incident would be a 1‑ or 2‑day suspension, or possibly even a written reprimand. I disagree.\n\nWhile a significant disciplinary record for conduct of a different nature does not automatically constitute the starting point, neither should it necessarily be completely discounted. The jurisprudence is clear that while disciplinary actions should not be imposed in a lock-step fashion, prior discipline for different types of behaviour need not be ignored but rather, where appropriate, can be considered as an aggravating factor.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-39", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 101–103", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Neither witness for the deputy head testified that the grievor was not a good employee. To the contrary, Mr. Marschner said that he was a good officer. Nevertheless, the fact remains that he had a substantial disciplinary record that cannot be ignored simply because it largely consisted of behaviour of a different nature than the failure to report to work. The grievor’s negative interactions with travellers and drivers, firearms violations, failure to attend court, and public criticism of the Agency do not paint a picture of an employee who cared greatly about his job, took discipline seriously, or learned from his mistakes. The grievor testified that he did not dispute the underlying behaviour that had resulted in these prior disciplinary actions and that while he might have disagreed with some of the details, he confirmed that he had chosen not to grieve them.\n\nAccordingly, I have considered the grievor’s substantial disciplinary record as a significant aggravating factor. I have also considered the mitigating factors that management considered: the grievor’s length of service, his remorse, and his co-operation with the process.\n\nAlthough I did not admit the grievor’s medical records into evidence, I considered the grievor’s testimony about his personal and medical issues. However, the grievor did not draw any link between these issues and his failure to report to work on March 2, 2015. For example, although he was diagnosed with a sleep disorder much later, and although he testified to having trouble sleeping at the time, he did not suggest that he failed to report to work on March 2, 2015, because of it. He said that he simply got the schedule wrong, either by reading the wrong section of the master schedule or by copying it down in his book incorrectly.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-40", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 104–107", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Although it is not hard to appreciate that the grievor’s personal circumstances meant that his life was in significant disarray and that that may well have contributed to the likelihood of him getting his work schedule wrong, no evidence established any such link, not even his own explanation as to what happened on March 2, 2015.\n\nAccordingly, considering the nature of the grievor’s conduct on March 2, 2015, the operational difficulty that such conduct can create, the mitigating factors of remorse and co-operation, as well as the aggravating factor of a significant disciplinary record, I find that the 20-day suspension was excessive. A 4‑day suspension will be substituted as an appropriate disciplinary response.\n\nThe grievor requested a confidentiality order with respect to his medical records given the sensitive personal and medical information in them. These documents were provisionally identified as Exhibits 3 and 4 during the hearing pending my ruling on their admissibility. They were not formally entered in evidence. As I have allowed the deputy head’s objection to their admissibility and declared that they do not form part of the Board’s record of these proceedings, the grievor’s request for a confidentiality order is moot.\n\nFor its part, the deputy head requested a confidentiality order with respect to Exhibit 2 (the grievor’s work schedule) due to security concerns should information about the scheduling process of the border services officers be made public.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-41", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 108–109", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Requests for confidentiality orders must be considered and analyzed in the context of the open court principle, a fundamental principle that applies to all Board hearings. In Sherman Estate v. Donovan, 2021 SCC 25, at para. 38, the Supreme Court of Canada reformulated the applicable legal analysis so as to require the party seeking a confidentiality order to establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order sought would outweigh its negative effects.\n\nThe Court noted that this new formulation preserves the essence of the Dagenais/Mentuck test (see Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, and R. v. Mentuck, 2001 SCC 76), as redefined in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-42", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 110–111", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The Board has considered security-related requests for confidentiality in various contexts. For example, in Douglas v. Treasury Board (Correctional Service of Canada), 2020 FPSLREB 51 the Board was asked to seal exhibits that had been introduced to show the physical setup for grievors with respect to an accommodation. They consisted of pictures and a floor plan of a federal correctional facility and the request to seal them was based on security concerns. Citing the Dagenais/Mentuck test as redefined in Sierra Club the Board concluded that: [64] The Board adheres to the open-court principle in its hearings and decision making. Its files are publicly accessible. However, some situations warrant a confidentiality order …. [65] Preserving the security of a penitentiary is a valid concern that outweighs the public’s interest in the proceedings. …. Making those public could create a risk for [the Nova Institution for Women]. The pictures and floorplan constitute Exhibit E-2, and that exhibit shall be sealed.\n\nEnsuring security at the border is an important public interest and I accept, on a balance of probabilities, that public access to the grievor’s work schedule — that is, to the work schedule of a border services officer at the Blue Water Bridge Port of Entry — poses a serious risk to the security of the border. I find that nothing short of shielding the grievor’s work schedule from public access would prevent a risk to the security of the border. Therefore, sealing the grievor’s work schedule is the only reasonable option available to Board. In my view, the beneficial effect of sealing the grievor’s work schedule in these circumstances far outweighs the negative effect on the right of the public to access the Board’s record in this matter.", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-520990-43", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 94", - "act_short": "Menzies", - "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", - "marginal_note": "paras 112–118", - "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "For all these reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe deputy head’s objection to the admissibility of the grievor’s medical records into evidence is allowed and I declare that they do not form part of the Board’s record of these proceedings.\n\nI order the Executive Director of the Board’s Secretariat to ensure that no copies of the grievor’s medical records (provisionally identified as Exhibits 3 and 4 during the hearing held on June 14 to 16, 2022) remain in the Board’s records of these proceedings.\n\nThe 20‑day suspension is replaced by a 4‑day suspension.\n\nI order the deputy head to pay the grievor the 16 days’ salary and benefits to which he would have been entitled but for the 20-day suspension, less the usual deductions.\n\nExhibit 2 (the grievor’s work schedule) is sealed.\n\nI will remain seized for 60 days from the date of this decision with respect to all questions related to calculating the amounts due under paragraph 116 of this decision. November 17, 2022. Nancy Rosenberg, a panel of the Federal Public Sector Labour Relations and Employment Board", - "current_to": "2022-11-17", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" - }, - { - "id": "fpslreb-521231-1", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 1–4", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On March 12, 2018, the employment of Anne Kline (“the grievor”) was terminated by her employer, the Canada Border Services Agency (“CBSA”, “the employer”, or “the respondent”) for disciplinary reasons. The termination letter cited two grounds, one of which was withdrawn at the outset of the hearing. The remaining ground is as follows: … … you failed to issue, or cause to be issued, the final verification report relating to the tariff classification of certain products imported by [the company] in a timely manner, despite it being your responsibility to do so, resulting in a loss of duties in excess of $25,000,000 as a result of the expiration of statutory time limits on recovery …. …\n\nThe letter went on to conclude that the grievor’s “… gross negligence, serious and significant lack of judgment and insubordination have irreparably breached the bond of trust …”. Ms. Kline grieved the termination on March 26, 2018, and that grievance was ultimately referred to the Federal Public Sector Labour Relations and Employment Board (“the Board”) for adjudication.\n\nFor the reasons that follow, the grievance is allowed.\n\nThe employer requested a sealing order for third-party business records, and the anonymization of the third-party’s name. The grievor requested a sealing order for her tax records and the redaction of her SIN (social insurance number) and PRI (personal record identifier) numbers. These requests were unopposed.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-2", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 5–6", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The “Dagenais/Mentuck” test (see Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; and R. v. Mentuck, 2001 SCC 76) requires that a document be sealed only if the potential harm of disclosure significantly outweighs its benefits (see Pajic v. Statistical Survey Operations, 2012 PSLRB 70; and Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41). More recently, the Supreme Court of Canada reformulated the test in Sherman Estate v. Donovan, 2021 SCC 25, at paragraph 38, to require the party seeking a confidentiality order to establish that (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.\n\nIn this case, the identification of a business and disclosure of its records may cause it harm. The records contain confidential financial and manufacturing information that could unfairly advantage competitors. The reasoning in this matter does not depend on these records, nor on the identity of the business. Thus, the salutary effect of the sealing and redaction orders requested outweighs the public interest in open proceedings. At an August 17, 2020, pre-hearing conference, I ordered the business records sealed and the third party’s name anonymized. It is referenced in this decision as “the company”. Similarly, the risk to the grievor from disclosing her PRI, SIN, and tax records outweighs any public interest in disclosure. Her tax records were ordered sealed, and her SIN and PRI have been redacted.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-3", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 7–8", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The events at issue occurred between June 2012 and March 2018, first within the Trade Programs Directorate (“TPD” — not to be confused with the Trade Policy Division (“the Policy Division”), a division within the TPD) and its Functional Guidance Unit (“FGU”) and, after a 2014 reorganization merged the TPD with another directorate, within the newly formed Trade and Anti-dumping Programs Directorate (“TAPD”). Much of the evidence about the TPD’s and the TAPD’s structure and activities, and the organizational changes during the events at issue, was undisputed.\n\nI granted a joint request to exclude witnesses. These were the employer’s witnesses: · Susan Hague (at the time of the events at issue, and to avoid confusion, throughout this decision, referred to as Ms. Leblanc), Director, Policy Division, TPD/TAPD, December 2012 to May 2014, who reported to the grievor. · Dino Pezoulas, Senior Advisor, FGU, August 2012 to November 2014, and Acting Manager, FGU, Policy Division, TPD/TAPD, January 2013 to January 2014 and May 2014 to November 2014, who reported to Ms. Leblanc while he was a manager on an acting basis. · Kelly Bartlett, Senior Program Officer (subsequently Senior Program Advisor), Tariff Classification Policy (Food, Plant, and Animal Area), Policy Division, TPD/TAPD, November 2007 to July 2018, who reported to Mr. Pezoulas and then to Mark Grant, a manager. · Shawn Riel, Special Advisor to the Director General and Executive Director, TAPD, April 2014 to December 2014. · Brent McRoberts, Director General, TAPD, March 2014 to March 2017. · John Ossowski, President, CBSA, December 2016 to June 2022. · Michel Séguin, BMCI Consulting Inc. (“BMCI”).", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-4", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 9–11", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "For ease of reference, information about CBSA employees who did not testify but who were frequently referenced is provided in the following table: Name Title Relevant period Manon Gilbert Strategic Advisor, Director General’s Office, TPD & TAPD July 2013 to December 2014 Mark Grant Manager, FGU, Policy Division, TAPD February 2014 to April 2014 and December 2014 to February 2017 Brad Loynachan Director, Policy Division, TAPD, who succeeded Ms. Leblanc June 2014 to August 2018 Catarina Ardito-Toffolo Director, Trade Compliance Division, TAPD March 2014 to March 2016 Richard Wex Associate Vice-President, Programs Branch Vice-President, Programs Branch February 2013 to December 2013 December 2013 to September 2015 Peter Hill Associate Vice-President, Programs Branch December 2013 to July 2018\n\nThe termination grounds relate to a file handled at times by a CBSA regional office, the grievor, and multiple TPD/TAPD employees. The file concerned the company’s importation of two similar products with the technical names “BF11” and “PC/SS”; both are informally called “plastic cream”, as they contain a product that also answers to this description.\n\nIn 1992, the grievor was appointed as a PM-01 customs inspector at Revenue Canada. She rose through the CBSA’s ranks for over two decades, assuming her first managerial role, in the Prohibited Importations Unit, in 2005. In 2007, she became an EX-01 director. In December 2012, she became the EX-02 director general of the TPD.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-5", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 12–14", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Before the TAPD was created, the grievor was responsible for a team of 114 employees, with 6 direct reports: 2 directors (including the FGU’s director), 1 manager, and 3 administrative staff. She oversaw a budget of $65 million, as well as the agency’s policy, compliance, and quality-assurance work related to trade programs.\n\nThe grievor regularly dealt with sensitive files. A file could be sensitive for many reasons, including a high amount of duties, or the potential for media attention, for economic impact, or for litigation. Her approach on these files was to ensure that she had her “ducks in a row”, that briefings were properly done, that the CBSA’s position was factually supported, and that the CBSA’s senior leadership was well engaged on the issues, so that the CBSA was ready to address public, legal, media, or political responses arising from a sensitive file. The grievor reviewed and approved briefing notes when there was a need to make the CBSA’s president and others aware of an issue or file. In her testimony, she spoke about her directorate’s work knowledgably, with clarity and precision, while acknowledging that she lacked the technical expertise of a subject matter expert.\n\nThe FGU provided expert guidance on imported goods classification, which is central to determining the duties payable. When classifying an imported good, its state as it crosses the border is a central consideration. FGU employees have subject-matter expertise for specific goods, and they advise CBSA regional officers.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-6", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 15–18", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "After importation, CBSA regional offices can conduct tariff compliance verifications (“verifications”) to confirm that an importer applied the correct classification. Verification decisions are released by the regional office and can increase or decrease the duties owed if the original classification was incorrect. During the events at issue, the CBSA undertook between 2000 and 3000 verifications annually. Verification decisions can be appealed, but all duties owing must be paid before an appeal is initiated. If a verification decision results in duties owing, the CBSA can retroactively collect duties for up to 4 years before the decision was rendered. This 4-year rule is critically important for this grievance.\n\nThe FGU provided advisory support for regional officers’ verification questions. Arriving at a correct classification could involve laboratory (“lab”) analysis, research, and reviews of past verification decisions. Ms. Bartlett, an FGU dairy expert, provided technical support on the recurring topic of what constituted a dairy good.\n\nImporters also have the option of requesting an advance ruling to confirm a classification before an importation is made. Unlike verification decisions, advance rulings are released by the FGU and had, at that time, a 120-day service standard. The FGU did not have service standards for its verification support.\n\nThe FGU manager (a position sometimes held by Mr. Pezoulas on an acting basis, and then, after February 2014, by Mr. Grant, also on an off-and-on acting basis) reported to the Policy Division director (from December 2012 to May 2014, Ms. Leblanc, and from June 2014 to August 2018, Mr. Loynachan), who reported to the grievor, as the TPD’s executive director, and then to the grievor and Mr. McRoberts, as the TAPD executive team.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-7", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 19–20", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Ms. Leblanc was forthright about her limited trade policy experience. She candidly admitted that she felt overwhelmed by the work and learning curve in her new role. In contrast to Mr. Pezoulas, Ms. Bartlett, and the grievor, she did not speak with clarity or precision about the company’s file or the FGU’s work. As just one example of many factual imprecisions, on cross-examination, Ms. Leblanc initially stated that she believed that the company contested an advanced ruling and then reversed herself. In comparison to other witnesses, Ms. Leblanc had little depth of understanding of the issues related to the imported products, although she did recall that Mr. Pezoulas and Ms. Bartlett “had tried to explain plastic cream” to her. Her capacity for recall contrasted sharply with that of the FGU witnesses and the grievor who, despite their differing views of the best course of action in the company’s file, had similar recollections of events, with minor inconsistencies that were attributable to the passage of time. Ms. Leblanc’s lack of recall appeared to be rooted in her limited understanding of the company’s file and the FGU’s work rather than in any failure of transparency or honesty on her part.\n\nMs. LeBlanc’s testimony described a sometimes-strained relationship with the grievor, who she felt had cut her out of meetings. She indicated that neither she nor the grievor were involved in day-to-day FGU work, including the work on the company’s file. She and Ms. Bartlett confirmed that FGU files were not usually brought to the grievor before or after the merger, unless her intervention was needed. Ms. Leblanc confirmed that when the grievor gave input, it was often on sensitive files.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-8", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 21–23", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On sensitive FGU files, the grievor might give the FGU guidance, direct the FGU’s next steps, or approve a proposed action plan. Ms. Bartlett acknowledged that her role did not include deciding when a briefing note was ready to be sent. She estimated that she and the grievor worked on about 25 briefing notes during the years in which they worked together.\n\nIn a June 2012, letter, the CBSA advised the company of a verification of their 2011 plastic cream imports. The company had classified those imports as non-dairy products. The CBSA asked the company to provide product samples; information on how the imported products were manufactured, used, and stored; and information on what processing took place after importation. The company provided more information in August 2012. The CBSA’s Greater Toronto Area Region requested functional guidance for the company’s verification in September 2012. In October 2012, a lab analysis was also requested. All this occurred before the grievor’s involvement in the company’s file.\n\nIn November 2012, an interim report proposed a dairy product classification for the company’s plastic cream imports. This had the potential to increase the duties owed, possibly by tens of millions of dollars, for 2011 and on an ongoing basis. All witnesses testified to the fact that this amount was exceptionally large. The company responded on January 18, 2013, with a report from Dr. Art Hill, Chair of the Department of Food Science at Guelph University (not to be confused with Peter Hill, Associate Vice-President, Programs Branch, CBSA, who will be mentioned later). Dr. Hill pointed to what he called “uncertainties” in the CBSA’s analysis, the conclusions of which he disputed.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-9", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 24–25", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Pezoulas and Ms. Leblanc first became involved with the company’s file in early 2013, roughly concurrent with their arrivals in the FGU. Further functional guidance was requested in May 2013. Mr. Pezoulas stressed repeatedly in his testimony that all the necessary work was completed on the company’s file, and that the FGU had already given functional guidance, before he arrived as a manager. In his view, the verification officer had done her due diligence and had come to the FGU to confirm her findings. Mr. Pezoulas briefed Ms. Leblanc on the company’s file, and during the first half of 2013, they discussed it at meetings. Sometime in 2013, Ms. Leblanc began to include the company’s file among the topics of her recurring bilateral meetings (“bilats”) with the grievor.\n\nIn the spring of 2013, the company requested a meeting with the CBSA. On July 11, 2013, the grievor, Mr. Pezoulas, Ms. Bartlett, and other CBSA employees met with the company president, his legal counsel, and Dr. Hill. Meetings with importers were rare and were usually about large sums of duties. For Mr. Pezoulas, it was his first meeting of this nature with an importer. At the meeting, the company stressed that the proposed classification would have catastrophic impacts on its business and community. It argued that the manufacturing process altered the imports in a way that was relevant to their classification and cited prior verification decisions. In its opinion, Dr. Hill’s report confirmed that the imports were not cream or preparations of cream but were food preparations of other fats, derived from milk. As such, in the company’s opinion, they were not dairy products.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-10", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 26–27", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Ms. Bartlett testified about the disagreements between the CBSA and the company as to plastic cream’s proper classification, which included factors such as the product’s ingredients and how they could be stored, separated, and used. To simplify some of the technical considerations, the grievor provided an analogy; if bread is made with eggs, it is still classified as bread, because the eggs are mixed indistinguishably into the loaf. But if a festive braided loaf, decorated with hard boiled eggs in their shells, is imported, the loaf will be classified both as bread and as an egg product, because the eggs are distinguishable and separable. For plastic cream, the technical considerations turned in part on whether the dairy products in plastic cream were integral or separable and if separable, at what temperature and in what proportions.\n\nAfter the meeting, Ms. Bartlett reviewed Dr. Hill’s report, to ensure that the CBSA’s conclusions were in line with this new information. Both the CBSA lab and the FGU agreed that the new information did not change the proposed classification. However, for the grievor, there were still information gaps that made it impossible to definitively resolve the differing views of the CBSA and the company. She felt that the FGU was well placed to obtain the information required to close those gaps.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-11", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 28–29", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Given the millions of dollars of duties at stake, a briefing note was required before the region could issue a verification decision. As the company had underscored at the July 2013 meeting, the retroactive duties could have wide-ranging impacts, including company bankruptcy, mass layoffs, regional economic slowdowns, political attention, auditor general scrutiny, and possible media attention on which the CBSA might be called to comment. Before being sent to the CBSA’s president, briefing notes were thoroughly vetted and then signed off by designated executives. The grievor or, after his arrival, Mr. McRoberts was the ultimate signatory on the briefing note. Work on the briefing note started in the fall of 2013.\n\nIn the early fall of 2013, Mr. Pezoulas went to Ms. Leblanc’s office. He was concerned that the file was not advancing. He did not believe that there were mistakes in the CBSA’s interim report or that there would be problems if the verification decision was issued. Ms. Leblanc suggested that they raise the issue directly with the grievor. On September 26, 2013, Mr. Pezoulas emailed the grievor, copying Ms. Leblanc, Ms. Bartlett, and others, stating that he and Ms. Bartlett had concluded that the company’s new information did not change the CBSA’s proposed classification. It was unusual for someone at Mr. Pezoulas’ level to write directly to a director general, but he was concerned about missing the four-year window for 2011 duties (which would start to close as of January 1, 2015). He recommended that the regional office issue the verification decision, noting that the company had the right to appeal.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-12", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 30–31", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor’s response was that she “most definitely” did not agree with this proposal. She noted that it was a highly significant verification that would garner attention. She did not feel that the CBSA had its “ducks in a row”. Mr. Pezoulas then asked to meet with her, in short order, to discuss next steps. She declined, stating that her presence was not needed, and instead asked that “[y]ou guys” (presumably those copied) formulate a plan for Ms. Leblanc to present to her. Later in the same email exchange, the grievor told Ms. Leblanc this: “These are your files and I expect you and your staff to stay on top of them and handle them appropriately.”\n\nThe grievor asked the FGU to obtain more information about plastic cream’s manufacturing process. In her opinion, there was no definitive answer to outstanding questions about how plastic cream was made and used. On that basis, she did not understand how the FGU could recommend closing the file. To resolve these concerns, she recommended directly contacting the company and the two United States (U.S.) manufacturers of the imports.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-13", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 32–34", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Pezoulas recalled an informal discussion in fall 2013 with the grievor and Ms. Bartlett about next steps. The grievor said that they could call or visit the U.S. manufacturers, pursuant to North American Free Trade Agreement (“NAFTA”) provisions. Ms. Bartlett was clear in her testimony that she considered contacting the U.S. manufacturers to be an atypical option. She doubted that they would willingly assist the CBSA and saw no way to rely on NAFTA provisions, a view which she confirmed with her colleagues at the time. In October 2013, the grievor requested an update and an internal meeting among herself, Mr. Pezoulas, and others, so that the plan could be finalized. Despite Ms. Bartlett’s misgivings, on October 30, 2013, letters were sent to the two U.S. manufacturers requesting manufacturing process details.\n\nMs. Leblanc had the impression throughout this time that the grievor thought that the staff had “to do their homework” and ascribed a highly negative tone to the grievor’s comment in an email to her that the staff needed to do “the actual work.” Ms. Bartlett recalls that the grievor told her the team had to “dig deeper”.\n\nReplies from the U.S. manufacturers came in late 2013. The grievor found these inconclusive. Both manufacturers suggested that the CBSA contact the company for more information. In December 2013, Ms. Leblanc told the grievor that her team was confident that they could finalize and send the briefing note so that the region could issue the verification decision.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-14", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 35–36", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The FGU again sought the CBSA lab’s opinion in December 2013. By January 2014, the lab and the FGU indicated that nothing that had been received changed their original opinion that plastic cream was a dairy good. Once all this was done, Mr. Pezoulas and Ms. Bartlett felt that there was enough information to move the briefing note forward. The grievor did not share this view.\n\nAt some point after replies were received from the U.S. manufacturers, Ms. Bartlett and Mr. Pezoulas dropped by the grievor’s office and ended up walking with her on her way to catch a cab. She talked informally with them about the information that was still missing and about ways to obtain it. The manufacturers could be visited in person, travelling by car, although the process involved in setting this up might take months. The company might be able to arrange an invitation to the manufacturers. The grievor again suggested that it might be possible to use NAFTA provisions, in the spirit of brainstorming ideas. She expected the FGU to figure out how to secure the necessary information. Although the lab already had the ingredients of the imports, it did not have the manufacturing process steps. The grievor considered this to be a central vulnerability identified by the company at the July meeting.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-15", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 37–38", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to the compliance verification officer’s record of events, on February 4th and 7th, 2014, the region was notified by emails that the FGU had outstanding questions and was drafting a letter to the company to clarify processing. More work was also done on the briefing note in February 2014. Ms. Bartlett said that working on briefing notes with the grievor was often challenging, as the grievor made multiple edits and stylistic rewrites (a tendency also remarked on by others), but Ms. Bartlett also noted that this was not an issue for the company’s briefing note. She confirmed that on the company’s file, the grievor simply did not think that the CBSA had all the required information. Ms. Bartlett reviewed the follow-up options with Mr. Pezoulas. She testified that with Eric Trudel, Manager, Verification, they considered a site visit. She did not recall whether the grievor was told that the FGU was not pursuing further follow-up options. The briefing note was put on hold, pending the receipt of more information.\n\nThe FGU had already started working on a communications package for the verification decision. In Ms. Bartlett’s view, there was no valid explanation for the briefing note not being issued after January 2014. As far as Ms. Leblanc was concerned, when a draft briefing note was sent to the grievor in February of 2014, no outstanding file work remained. This testimony was entirely consistent with several emails entered into evidence. The emails also show that the grievor did not agree with these opinions. But no evidence indicates that Ms. Leblanc or anyone else told the grievor that no further work was being done on the company’s file.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-16", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 39–41", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As part of a reorganization in 2014, some CBSA directorates were merged and were to be “team managed” by pairs of EX-03 and EX-02 executives. Nine directorates were merged into directorates managed jointly by an EX-02 and an EX-03. In March 2014, Mr. McRoberts was appointed the director general of the newly formed TAPD, which merged the previous TPD and another directorate. The new directorate included 183 employees. The FGU remained within the TAPD.\n\nThe grievor had been the EX-02 director general of the TPD. After the merger, she became the EX-02 executive director of the TAPD, managing the TAPD with Mr. McRoberts. Her performance goals and Mr. McRoberts’ were identical. Her former office was given to him. Several witnesses, including the grievor, noted that even though her group and level were unchanged, this effectively diminished her leadership. She no longer signed off on briefing notes; this responsibility was transferred to Mr. McRoberts, who had final sign off on all TAPD files.\n\nOther personnel changes occurred at roughly the same time. In March 2014, Ms. Ardito-Toffolo became the director of the Trade Compliance Division. In this role, she had regular bilats with Mr. McRoberts and the grievor to discuss ongoing files. In June 2014, Ms. Leblanc was replaced by Mr. Loynachan.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-17", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 42–43", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. McRoberts stated that “functionally”, both he and the grievor reported to Mr. Wex, but he also indicated that the grievor reported to him and that he alone provided the direction for the TAPD. On cross-examination, Mr. McRoberts conceded that the grievor reported to Mr. Wex, for her performance assessment, but continued to stress that he alone was responsible for the TAPD. He said that in his first discussion about the TAPD with Mr. Wex, Mr. Wex told him that the TPD had had “a lot of issues, as far as the ADM’s office was concerned.” Mr. McRoberts did not know if these issues had ever been discussed with the grievor. He testified that it had been said that the TPD was the “worst performer” at the CBSA, in terms of timely task completion (although he had no firsthand knowledge of the source or basis of this remark), and that the grievor had interpersonal skills gaps and performance challenges. Because of this, Mr. Wex wanted a “checks and balances” system, although Mr. McRoberts did not elaborate on what this entailed.\n\nMr. McRoberts noted repeatedly in his testimony that the grievor held herself out as a trade expert and that she was recognized by her peers as such. He stressed that he relied on her. His goal was to “leverage” her expertise while addressing her performance deficiencies. As a first example of these deficiencies, Mr. McRoberts said that the grievor insisted on personally reviewing “things such as” ATIP releases, and these ended up piling up on her desk.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-18", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 44–45", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor said that the ATIP backlog stemmed from a 2014 spike in ATIP requests. Mr. McRoberts conceded that this in fact had been the case. He went on to say that she had no faith in her directors or reporting managers and that she went through everything they did, page by page. These statements were at odds with emails adduced in evidence and the testimonies of others, which show the grievor delegating and asking others to prepare plans and carry out work. Mr. McRoberts added that he changed how the TAPD worked, which then cleared up the ATIP backlog. No evidence supported this statement; nor were documents introduced to demonstrate the operational changes or positive impacts that Mr. McRoberts described.\n\nAs a second example of the grievor’s performance deficiencies, Mr. McRoberts stated that routinely, she questioned people about security-form particulars, such as family contact information. In his opinion, this showed poor prioritization and delegation. When it was put to him that she had about 10 security forms to review annually and that she was legally obligated to personally sign off on them, he made vague comments about the Protected B status of the forms “possibly” meaning that they had to go straight to security once completed, instead of being reviewed by the grievor. No other information was provided.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-19", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 46–48", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. McRoberts implied repeatedly that the TAPD merger was either exclusively or largely due to problems specific to the grievor. When asked about whether the merger was part of a broader restructuring, he said that he had no recall of that. When his attention was drawn to a quarterly report documenting the broader restructuring, at first, he steadfastly maintained that he had no memory of the other CBSA departmental mergers. When pressed, he reluctantly recalled a few of the changes and then testified on redirect examination that none of the other changes involved mergers, even in the face of documentary references to departmental “consolidations.” This was one of several moments, others of which are detailed later in this decision, when Mr. McRoberts’ statements lacked consistency and transparency.\n\nThe company’s file appeared on several bring-forward (“BF”) lists throughout 2014. In early 2014, Ms. Leblanc began reporting to Mr. McRoberts and had bilats with him instead of the grievor. She provided Mr. McRoberts with a full briefing, which she stated likely included the company’s file, while the grievor was on vacation; there was a further technical meeting on the company’s file after the grievor returned. Because of the grievor’s experience, she continued to give direction, as needed, on the company’s and other complex files.\n\nMs. Leblanc believed that the grievor was upset by the merger and that she felt pushed aside. For Ms. Leblanc, the ongoing delay on the company’s briefing note felt like deliberate stalling. Every time the company’s file was on a meeting agenda, Ms. Leblanc felt that she and the grievor ended up “in a personal venting session”, with the result that “nothing got action”.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-20", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 49–50", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "From April to December 2014, Mr. Riel was the special advisor to the grievor and Mr. McRoberts. He also viewed the company’s file as stalled. Working with Ms. Gilbert, whose BF lists for the grievor included the company, he tried to support the completion of the company’s file, in part through conversations with the grievor. When Ms. Leblanc left in May 2014, the briefing note remained outstanding.\n\nMr. Riel testified that in 2014, he attended meetings with the grievor, Ms. Gilbert, and Mr. McRoberts at which the company’s file was referenced, and from these meetings, he understood that there was an outstanding question on the manufacturing process. Mr. McRoberts testified that he had no recall of these discussions. This appears highly improbable, for several reasons. The company���s file was sufficiently significant for Mr. McRoberts to be briefed on it on his arrival at the TAPD. It was already the subject of a draft briefing note, and a high value of duties was involved. Mr. Riel recalled Mr. McRoberts being concerned about progress on the company’s file and further described pressure being brought to bear to advance it. This is inconsistent with Mr. McRoberts’s lack of recall of the company’s file being discussed at meetings he had with the grievor. At bilats, according to Mr. Riel, when Mr. McRoberts pushed the grievor on the file’s progress, she always replied that she was waiting for information. Mr. McRoberts recalled none of this. He had repeated difficulties recalling matters described by other witnesses, in this instance and others.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-21", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 51–53", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. McRoberts also either had little recall or displayed little understanding about subjects including whether duties must be paid before a file is appealed, what files were typically handled by the FGU, and whether there was an outstanding question on the company’s file at the time of the grievor’s eventual departure to work on the CBSA Assessment and Revenue Management Project (“CARM”) or on her subsequent departure on paid leave.\n\nSometime before he left the FGU in the fall of 2014, Mr. Pezoulas took the unusual step of reaching out directly to Mr. McRoberts, to express concerns about the possibility of missing the four-year window for retroactive duties. He bypassed his manager, who at that point was Mr. Loynachan, and the grievor, to whom Mr. Loynachan reported. He indicated to Mr. McRoberts that in his opinion, the file was complete and defensible, and that the briefing note was ready to be sent.\n\nMr. McRoberts stated in his testimony that he understood that the grievor was both “leading the file with the help of the team” and “stick-handling” (a hockey metaphor connoting control, maneuvering, or hands-on contact) the file by herself. When asked if he could have advanced the file when Mr. Pezoulas came to him with concerns in 2014, Mr. McRoberts said that he was not at all sure when concerns had been raised with him, despite having testified to the timing of Mr. Pezoulas’ concerns the day before. When his attention was drawn to the contradiction with his testimony of the previous day, he backtracked and said that he was not sure about the nature of the concerns that had actually been raised.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-22", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 54–55", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. McRoberts also testified that for most of 2014, he was unaware of how the four-year rule worked. Although this assertion is consistent with his overall tenuous grasp of many matters, as well as his spotty capacity for recall, this statement strains credulity; he had been briefed on the file, and it was discussed with him at many points by many players. It is improbable that none of these discussions referenced the critical four-year rule until the end of 2014.\n\nThere were also inconsistencies in Mr. McRoberts’ testimony on his authority to move the briefing note forward. As a further answer to the question of whether he could have advanced the company’s file in response to Mr. Pezoulas’ concerns in 2014 or indeed at any time, he said that he wanted the grievor’s “blessing” before forwarding the briefing note. He then vaguely referenced the file’s political importance and sensitivity as the reasons for waiting for the grievor’s green light. On cross-examination, he conceded that it was within the scope of his managerial role to be able to consider and make conclusions about those issues. Mr. Riel described Mr. McRoberts as “looking for the grievor’s approval” because the file was “her responsibility”. Mr. Riel also noted that had Mr. McRoberts moved the briefing note forward, the file would have been resolved sooner.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-23", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 56–58", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In his testimony, Mr. McRoberts stressed that part of the reason he did not move the file forward was that the grievor said that she alone had the knowledge required for the file, “because she knew the partners and the players.” In his view, although they received the same information about the file (a fact corroborated by other witnesses) she treated the company’s file as her own. He trusted her expertise. To him, she was a perfectionist; she delegated reluctantly and liked to control information.\n\nThe grievor’s testimony, which was consistent with those of Ms. Leblanc, Mr. Pezoulas, and Ms. Bartlett on this issue, was quite the opposite. These witnesses agreed that she did not do any of the substantive work on the file herself, including drafting the briefing note; rather, she guided those doing and overseeing the substantive work, corrected any deficiencies that she identified when called upon, and expected the FGU director, and the FGU managers, to update her as the file progressed.\n\nIn October 2014, Mr. McRoberts went on vacation, and the grievor was the director general on an acting basis. Evidence differed on the meaning of an October 10, 2014, email in which the company’s file was included in a list consisting of 24 file names. These files were to “be completed” before Mr. McRoberts returned from vacation. No detail whatsoever about the task completion being ordered is provided on the list for any of the files referenced, although the 3-sentence email notes that “Manon [Gilbert] has the context and details for most of the items.”", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-24", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 59–60", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to Mr. McRoberts, this email meant that the briefing note should have been finalized and ready for his sign off on his return. However, he also indicated that some of the items on the list were ongoing projects that would not have been completed until after he returned from vacation. The grievor testified that she understood that the fact that the company was on the list meant that progress or an update was expected on the file.\n\nOn November 14, 2014, the grievor discovered that her file on the company was missing from her desk. She sent a short email to Ms. Gilbert and Mr. Riel with the subject line, “Did we ever close [the company]”. In the email, she notes that she had asked for a follow-up with the manufacturers. Mr. Riel replied that neither he nor Ms. Gilbert recalled anything about reaching out to exporters. Mr. Riel committed to following up with Mr. Loynachan. After removing the grievor from the email thread, Ms. Gilbert asked Mr. Pezoulas when the grievor requested exporter information and whether she did so verbally or by email. Mr. Pezoulas replied that letters had already been sent to the exporters.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-25", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 61–62", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As 2014 closed, so did the window for full retroactive duties for the 2011 calendar year. Had the verification decision been issued in 2014, collecting retroactive duties for the full 2011 calendar year would still have been possible. Mr. McRoberts testified that at the end of 2014, the grievor said that the company’s file was nearly complete, and they were still working with the lab and waiting for more tests. Nothing in her testimony, or that of any others, suggests that lab results or other tests were expected or sought at that time. Witnesses who might have been able to corroborate Mr. McRoberts’ statement, such as Mr. Loynachan and Mr. Grant, were not called to testify. Further, Mr. McRoberts’ recall was inconsistent, or inaccurate, at other points, as already noted. As such, I do not find any evidence that meaningfully supports a finding that the grievor told Mr. McRoberts that lab results or tests were still pending at the end of 2014.\n\nMr. McRoberts testified that the delays in the company’s file were due to “something like” sabotage by the grievor, possibly because of the titular downgrade of her position. He felt that he did not receive the full story on files. He alluded to meetings and correspondence of which he was unaware, without providing details. He felt that he had provided the grievor with many chances “to mesh and bond and be on the same page.” When that did not work, he had to be become more assertive and go line-by-line on deliverables. Again, no details were provided.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-26", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 63–65", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In January of 2015, the grievor was called to a meeting, without prior notice, and was told that she would immediately begin working full-time on CARM. She took no files or workload with her when she started her CARM work; nor was she asked to continue working on TAPD matters, although her communications with Mr. McRoberts continued. In his testimony, Mr. McRoberts painted the grievor’s reassignment to CARM as a last chance for her to prove herself, given her performance challenges and gaps. Her involvement with the company’s file ended. With each day that passed in 2015, the possibility of collecting retroactive duties for imports before the corresponding date in 2011 was lost.\n\nJust over 10 months after the grievor’s assignment to CARM, the company’s TAPD file was closed. The verification decision was issued on November 17, 2015, shortly after the briefing note had been forwarded to the CBSA president. The lost duties were calculated at $26 006 621.\n\nMr. McRoberts testified that Ms. Ardito-Toffolo, who had begun working on the company’s file in October 2014, “rebuilt the file” after the grievor left and said that many meetings were held before finalizing the verification decision, “to examine questions and issues”. He praised Ms. Ardito-Toffolo highly, in his testimony, for the long hours she worked on the file. She did not testify. He further testified that after the grievor’s departure, it took 10 months to issue the decision, because they “had to go through the whole file again”, and “the file was such a mess”. When asked for specifics, he indicated that they “couldn’t find” the legal counsel letters, lab reports, or records of calls and meetings. He also testified that the grievor had also left other files in disarray. The grievor denied this.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-27", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 66–67", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The statements about the disarray in the company’s file are not consistent with the testimony of other witnesses. Evidence from other CBSA witnesses indicated that the substantive file would have been with the FGU rather than with the grievor, whose “file” would have included her personal notes and emails, many of which would have been to or from either Ms. Leblanc, Mr. Loynachan, or FGU staff. Further, the documents that Mr. McRoberts cited would have existed elsewhere, where they had originated; the lab would have had a copy of its own report, and the FGU, which had the working file, would have had copies of its correspondence, as would have had the region. Mr. McRoberts himself either had access to, or was in possession of, all of the documents the grievor had received. Even if I were to accept that the grievor’s file was disorganized and that documents were missing from it, how gathering the documents again would have taken 10 months is entirely unclear. At different points, Mr. McRoberts stated that the $26 million loss occurred because the briefing note was not issued in 2013, when it and the file were fully ready to go forward.\n\nThe verification decision was the subject of applications to the Canadian International Trade Tribunal and the Federal Court. They were discontinued before decisions on the merits were rendered. It was not contested that the amount of lost duties ultimately might have been the subject of settlement discussions between the CBSA and the company.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-28", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 68–69", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. McRoberts confirmed in cross-examination that as far as he knew, the grievor was never told that prioritization and delegation were performance issues for her. These issues are also not reflected in her performance evaluations. The performance review process included an annual performance rating based on a performance management agreement (“PMA”) and a mid-year meeting to review progress on annual goals. Performance pay documents (based on performance reviews that were also introduced into evidence) reflected the following performance ratings: · 2008-2009: “met all” · 2009-2010: “succeeded” · 2010-2011: “surpassed” · 2011-2012: “surpassed” · 2012-2013: “succeeded” · 2013-2014: “succeeded minus”\n\nFor the 2014-2015 fiscal year, the grievor received a performance rating of “does not meet”, which was mailed to her at home while she was on leave with pay.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-29", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 70–71", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "It was uncontested that the “surpassed” rating is given to less than 5% of executives. In the performance management agreement dated June 17, 2014, beside the question, “Based on this evaluation is a Performance Improvement Plan necessary?” “no” was checked. On the same form, the grievor’s individual rating was “succeeded minus”, and her corporate rating was “succeeded”. The document indicates that a “succeeded minus” can apply to newly appointed executives. The rationale provided for this in the grievor’s testimony was that in their first, partially complete year, new executives may not be able to achieve all their goals. But it is also clear from the form that this was not the only possible reason for a “succeeded minus” rating. Such a rating may also apply when performance expectations have not been fully met. Further, the form lists other possibilities in addition to those two. Mr. Wex, who could have resolved this ambiguity, was not called as a witness.\n\nThe grievor’s 2012-2013 end-of-year feedback indicates that at the mid-year review, people management and openness to trade-program transformation were discussed as growth areas. It further states that she had since demonstrated a willingness to further develop these leadership competencies. She indicated that in the meeting to discuss the 2012-2013 performance management agreement, sometime before the signature in June on the document itself, Mr. Wex gave her positive feedback, and she felt good about what she had accomplished in her first year in her new role.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-30", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 72–74", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In a March 31, 2015, performance meeting with Mr. Wex and Mr. Hill, the grievor received positive performance feedback on topics, including her arrival at CARM, for which she had provided her input in advance. Nothing was said about the company’s file. Mr. McRoberts confirmed in his testimony that he gave her no formal or informal warnings on the company’s file or on any other matter and that there was no discipline or any performance improvement plan of which he was aware for her performance generally or for the company’s file. He indicated that those were questions for Mr. Hill or Mr. Wex to answer. Mr. Wex was responsible for the grievor’s performance evaluations. Neither of these individuals testified.\n\nOn April 8, 2015, the grievor was convened to a meeting with Mr. Wex and Mr. Hill, which occurred immediately. She was told that her conduct at a meeting in the context of CARM had been unacceptable. Mr. Wex told her to go home immediately and to do the following: “think about what you’ve done”, while the CBSA contemplated the next steps. She was not provided with particulars about her problematic conduct. The company’s file was not discussed, and the meeting was limited to CARM issues.\n\nThe grievor was stunned by the meeting. She had received no advance notice of the agenda and at first was unclear as to the topic of discussion. She saw Mr. McRoberts immediately after the meeting and was told to distance herself from CBSA employees, which was challenging, because most of her social circle was built around the CBSA. In the days that followed, she had a surgical procedure and went on sick leave. While she was in hospital, Mr. Wex called to tell her to remain at home after her sick leave ended.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-31", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 75–77", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On April 27, 2015, Mr. McRoberts attached a “Management issues timeline” to an email ultimately forwarded to CBSA’s internal investigation unit. This timeline focused on the grievor’s management style and interactions with staff, as well as issues related to CARM. The company was not mentioned in the summary of management issues.\n\nIn summer 2015, the grievor received her first ever “does not meet” rating on her performance evaluation, which was for the 2014-2015 fiscal year. No feedback about that rating was provided; nor was any supporting evaluation provided. In August 2015, she retained legal counsel. When the grievor’s recovery was complete, she called Mr. Wex and stated that she was ready to go back to work. She was told to await further information, which was promised by October 30, 2015. October came and went, but no new information arrived.\n\nMr. McRoberts testified that Mr. Wex, who left the CBSA in September 2015, asked him for a report on the grievor’s performance issues before his departure. Mr. McRoberts replied that the CBSA “needed to engage an independent third party”. According to Mr. McRoberts, Mr. Wex agreed. Mr. McRoberts also referenced consultations with Mr. Hill and the CBSA’s Labour Relations branch. In early 2016, Michel Séguin, the president of BMCI and an experienced independent third-party investigator, was engaged to complete a “performance report.” Mr. McRoberts described Mr. Séguin as working very autonomously and professionally.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-32", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "para 78", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "While from the evidence and from his testimony, Mr. Séguin’s work appears to have been well organized, precisely documented, and highly professional, how he was independent or autonomous remains unclear. His statement of work does not outline an independent investigation. In a March 21, 2016, initial discussion with Mr. Séguin, Mr. McRoberts told him that because of the grievor’s poor performance, tens of millions of dollars had been lost. He also told Mr. Séguin that in March, there had been an internal investigation of the grievor’s harassment, bullying, and abuse of authority. Mr. McRoberts also told Mr. Séguin that the grievor’s life was her job and that she was financially independent. Her testimony that after the termination, she struggled to afford the counselling support previously covered by her employment benefits, ran directly counter to this assertion and was not challenged by the employer.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-33", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 79–81", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to Mr. Séguin, the scope of his mandated tasks from Mr. McRoberts included reviewing “about an inch” of documents given to him by Mr. McRoberts’ assistant, putting them in order, and selecting those relevant to the issues that Mr. McRoberts had identified. These documents did not include the full company file; nor did they include the grievor’s file or notes. On that basis, Mr. Séguin provided a chronology of events and interviewed these eight witnesses, who were identified by Mr. McRoberts: Marion Whitford, Janice Jacquard, Mr. Riel, Mr. Pezoulas, Zaina Sovani, Ms. Ardito-Toffolo, Mr. McRoberts, and Ray Bonnell. Mr. Bonnell was an employee in the employer’s internal investigation unit, who investigated ultimately unfounded harassment allegations against the grievor. The relevance of his work to the company’s file, the CARM allegations, or the performance-related allegations was never explained.\n\nMr. Séguin testified that his task was not to investigate wrongdoing but rather to compile documents accompanied by witness interview summaries. These summaries were not appended to the final version of the resulting report and were not adduced in evidence. Ultimately, the CBSA’s internal legal counsel described BMCI’s task as “… to assist with the production of the report.”\n\nMuch of Mr. Séguin’s work related to termination grounds that the employer has since withdrawn. He did not interview the grievor, Ms. Leblanc, Mr. Loynachan, Mr. Hill, or Mr. Grant; nor did he have any information from them about their involvement in the company’s file. Despite this, Mr. McRoberts repeatedly described Mr. Séguin as “an independent third party”. This description does not match the evidence received at the hearing.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-34", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 82–83", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In another instance of Mr. McRoberts’ poor powers of recall, he testified that he was entirely unaware that the grievor was never interviewed by Mr. Séguin. Mr. McRoberts conducted no interviews of his own; nor did he ask the grievor for more information or documents or for any witnesses whom she might have considered relevant. He would not confirm Mr. Séguin’s statement that Ms. Jacquard, his administrative assistant, had provided documents to Mr. Séguin. Initially, he had no recall whatsoever of his office ever providing any documents. Mr. McRoberts eventually conceded that Ms. Jacquard might have given documents to Mr. Séguin but maintained that he had no memory of instructing her to; nor did he have any idea of who else might have provided these instructions.\n\nMr. McRoberts acknowledged that Mr. Séguin indicated that he did not feel that his work could be described as an investigation; rather, it was a report based on the documents provided. Despite this, Mr. McRoberts stated in evidence that he stayed “at arm’s length” from the entire process and that he took a “firm stance” (implying opposition to this idea, of which there was no evidence) that he would not write the “investigation report.” Mr. McRoberts further indicated in evidence that he had not wanted to interfere with Mr. Séguin’s “investigation methodology”. At other points, he described Mr. Séguin’s product as a “fact-finding, performance report” rather than as a misconduct investigation.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-35", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 84–85", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Séguin authored a report (“the McRoberts Report”) that he provided to Mr. McRoberts and that he then edited, as directed by Mr. McRoberts, who signed the McRoberts Report. Mr. Séguin’s name does not appear on it. The McRoberts Report’s preamble states that its objective is “to provide a chronology of events”. Mr. McRoberts testified that he was “completely out of the loop” after the McRoberts Report, dated April 14, 2016, was “issued”. The McRoberts Report has 3 sections: the company’s file (summarized in a 4-page narrative citing 15 attachments), CARM, and timely assignment completion. The termination letter did not cite timely assignment completion. Termination grounds related to CARM were withdrawn at the hearing.\n\nOn April 19, 2016, the grievor’s counsel received the first details of the allegations against her, including harassment allegations that were ultimately determined unfounded and performance allegations on which the employer did not rely in its termination letter. Included with the letter was the chronology of overdue tasks that were attached to the McRoberts Report. She had never before seen the McRoberts Report allegations, and she had learned of the harassment allegations in her one brief call with Mr. Séguin on March 24, 2016, to the surprise of them both; Mr. Séguin had assumed that the grievor must have known of the harassment allegations against her. She was never interviewed about the harassment allegations or with respect to the McRoberts’ Report. Eventually, she received a letter that stated that those allegations were unfounded.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-36", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 86–88", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "She was also surprised by the performance concerns in the McRoberts Report. She already knew that there was an issue with her CARM assignment because she had been told as much at the April 8, 2015, meeting with Mr. Wex, but this was the first time she heard about issues related to the company’s file. She did not believe that she had mishandled the file, and she did not know what had happened to the file after she left. For her, the McRoberts Report was hurtful and gut-wrenching. She believes that it is fortunate that she already had professional support in place by that time, given the personal impact that she experienced.\n\nSometime after a July 2016 letter, from the grievor’s legal counsel to the CBSA, the grievor met with the CBSA’s general counsel and the vice-president of Human Resources at the offices of her legal counsel. At several points before her employment was terminated, she asked to meet with the CBSA’s president, a request which was never granted. She testified that even at this late stage, she had hope that if she could tell her side of the story, she would be given a fair hearing, and her statements would be considered.\n\nThe grievor was terminated on March 12, 2018, after having been on leave with pay for nearly three years (since April 8, 2015). Mr. Ossowski testified that her failings on the company’s file were as follows: · she was the responsible executive when “$25 million” in duties were lost; · although there was more than enough evidence to send the “assessment”, she persisted in asking more questions; · many of her files were not properly managed; and · she did not trust her staff and had poor communications skills.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-37", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 89–91", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Ossowski indicated that the grievor dug in, to “rag the puck” (a hockey metaphor connoting delay). In his view, it was clear to anyone what the imported product was and how it should be classified. She should have relied on the team, given the amount of money owing. Instead, she chose to do nothing. There was a lack of communication with her superiors and gross negligence.\n\nMr. Ossowski understood that the staff had distrusted and feared the grievor. He felt that it was reasonable to infer that the stalling on the file was deliberate. He cited the reputational impact for the CBSA as well as the impact on the company and the lack of a level playing field within this commercial sector generally. He understood that there was a pattern of non-responsive behaviour that he stated was reflected in her performance assessments. Whether or not the harassment case was founded, as far as he was concerned, it was clear that the grievor did not absorb feedback well on any of these issues. No examples of feedback on the company’s file, or any file, dating from the period before she left the workplace were provided by Mr. Ossowski; nor were such examples provided by any other witness.\n\nAccording to Mr. Ossowski, there was no possibility of remorse or rehabilitation; the grievor had already been given opportunities to change, including the reorganization of the TPD and the “fresh start” at CARM, but she demonstrated neither self-awareness nor self-reflection, despite “receiving feedback many times.” Mr. Ossowski noted that her performance appraisals had dropped when she became an EX-02. Her years of service were considered but given what he described as the insubordination on the CARM file, as well as the bullying and the aggressive leadership style, termination was appropriate.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-38", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 92–94", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Ossowski relied on what he called “the McRoberts Investigation” (which he described as “appropriate and thorough”) and the grievor’s response when he made the decision to terminate her, as well as briefings from his legal team. He admitted to having no firsthand knowledge of the following: · why the merger occurred and what, if anything, was said to the grievor about her performance at that time; · who directed the FGU or the grievor’s role in relation to FGU work or whether the FGU had told her that it was not following her directions; · the veracity of the harassment allegations or whether harassment concerns were shared with the grievor before the harassment report was issued.\n\nMr. Ossowski was unclear on why the company’s file was flagged for verification, what position the FGU had taken, and how or why the grievor had become involved. He offered no comment or explanation about the lack of any disciplinary consequences for Mr. McRoberts and Ms. Ardito-Toffolo, despite the fact that between January and November 2015, they also did not take actions to issue the briefing note, and despite the fact that the majority of the $26 million of lost duties related to periods after the grievor had been transferred to CARM.\n\nMr. Ossowski admitted that the grievor’s termination was based on both the CARM incident and the handling of the company’s file and that he considered the other allegations in the McRoberts Report, as well as the harassment allegations. He did not recall whether he was aware when the grievor was terminated that the harassment allegations had been determined unfounded. He admitted to knowing that she was not subjected to a performance plan but maintained nonetheless that there were performance issues with her.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-39", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 95–97", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Ossowski indicated that he was unaware that the grievor was not interviewed in the McRoberts Investigation. He said that if Mr. McRoberts and the grievor disagreed, he preferred Mr. McRoberts’ version, indicating that others agreed with Mr. McRoberts, so he assumed that Mr. McRoberts’ opinion must have been correct. He was unaware that Mr. McRoberts had not written the McRoberts Report. He also did not know that the consultant did not have access to the grievor’s notes and emails. Mr. Ossowski testified that he never saw the July 15, 2016, letter from the grievor’s counsel asking to meet with him and that he remained unaware of that request. He was further unaware that she was told that this request had been denied.\n\nThe grievor testified that she felt completely blindsided by the events that occurred during this entire period, starting with being sent home in April 2014. Starting at that time, she sat at home and thought about what she might have done differently, with no contact with former colleagues who had been her friends. She spent a long and very lonely year waiting for the allegations to arrive. She felt isolated and demoralized. As the months and then years of wondering and waiting dragged on, and ultimately lead to her termination, she relied on professional help to get through what became “an extremely dark period” in her life.\n\nHer life had been largely centred on her work, and her CBSA career mattered deeply to her. She continues to experience difficulties with self-confidence. She second-guesses herself and struggles to trust others. The fear that what she experienced may recur remains with her and continues to affect her in the workplace; she described it as an unreasonable level of paranoia.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-40", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 98–100", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor has also experienced a sense of loss. She had progressed steadily, had won awards, and had been selected for special programs. She had remaining goals and ambitions that she states she is now unlikely to attain; as she put it, due to the lost years, “the runway is too short”. She described all those impacts as cutting deep and lasting long. She has since found new employment in the federal public service. Her job search was impeded by the fact that she was forthright that her CBSA employment had been terminated.\n\nNo one other than the grievor was disciplined in relation to the company’s file. Mr. McRoberts had what he described as “not the most pleasant meeting of my career” with the CBSA’s president and others, in the wake of the completion of the company’s file. When asked for details of this meeting, Mr. McRoberts replied with this: “I don’t want to get into it because of political issues”, and offered only that they talked about ensuring that timelines were met.\n\nThe employer has proven serious misconduct warranting the grievor’s termination. Alternatively, a lengthy unpaid suspension would be appropriate. There is no basis for aggravated or punitive damages. The benefits flowing from reinstatement will suffice if reinstatement is ordered.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-41", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 101–103", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor was not a long-term executive. Her 2013-2014 performance review set out people management and trade transformation as growth areas. The employer’s position is that the 2013-2014 “succeeded minus” rating reflected her performance. Mr. McRoberts’ testimony was that the new management model came about to reduce her responsibility, in part due to performance problems, such as people management. Her emails to staff were sometimes terse, as seen in her comment that “… staff need to do the actual work …”, and in her occasional use of capital letters. Rejecting staff recommendations was part and parcel of these poor communication practices. These performance difficulties contributed to missed deadlines. As emails entered in evidence set out, she was repeatedly reminded about deadlines, starting in 2014.\n\nThe entire situation could have been avoided in 2013 after the company was told to provide information about the manufacturing process. It should have been motivated to provide any information that would stop the reclassification, to avoid duties. If evidence existed that could have convinced the CBSA, the company would and should have provided it. The grievor failed to turn her mind to this.\n\nIn September 2013, Mr. Pezoulas told the grievor that the company’s information did not change the reclassification. He was well aware of the file. He wanted the final verification decision to be issued; he said that the company could always appeal it. The grievor wanted to wait for more complete manufacturing process information, but the U.S. manufacturers would not voluntarily share that information. At that point, the grievor should have relied on the internal recommendation and accepted it.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-42", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 104–105", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "From January 2014 onwards, the company appeared on a weekly BF system. Ms. Bartlett, a dairy product specialist, stated that by early 2014, when the new lab results were in, even if Dr. Hill was right about the fat globules separating in manufacturing, it would not have affected the reclassification. At that point, the briefing note should have been sent. There was no reason to wait. This is the second point at which the grievor continued to ask for inconsequential information. The only hope for that information — that a U.S. manufacturer might open its premises to the CBSA — was unrealistic. On February 28, 2014, Ms. Leblanc sent the grievor a draft briefing note. This was yet another chance to issue the verification decision. The decision to chase unneeded information without a follow-up was out of step with the grievor’s executive role. Seeking more information was an error in judgment.\n\nThe grievor was disingenuous or careless about the information that she gave Mr. McRoberts from January to November 2014. In November 2014, she asked Ms. Gilbert and Mr. Riel if the CBSA had ever closed the company’s file, implying that she was unaware of the file’s status. Even so, she continued to act as if the file was on track, and she was just awaiting more information. She should have been aware that the four-year deadline was approaching. It should have been clear to her that a decision had to be issued without further delay. A good file that allowed for the full recapture of duties would have been better than a perfect file that missed the deadline for that recapture.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-43", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 106–109", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In her testimony, the grievor said that she wanted to test the veracity of the information that had been received. This was a shift from what she said to the FGU at the time of the events in question. It impacts her reliability and judgment; asking for information that one does not have and verifying information that one has are very different things.\n\nBy the time the grievor went to CARM, the company’s file had been her responsibility for two years. She should have issued the briefing note before she left. She is responsible for all losses up to the verification decision date because her inaction set the stage for the losses that occurred in the months after she left for CARM. Mr. McRoberts should not have had to pick up the file. He was not a trade expert. He was not part of discussions with Ms. Leblanc or the company. The grievor had the leadership role and therefore is responsible, as noted.\n\nAs for why it took about 10 months after the grievor left to issue the verification decision, Mr. McRoberts said that the file had to be rebuilt and that the timelines were impacted because she had left other files in disarray. Although her file was available to others, they could not just pick up where she left off.\n\nThe McRoberts Report was not issued until about a year after the grievor left because the verification decision was not completed until November 2015. The employer could not know the scope of the damage until then. Mere months after the company’s file was completed in November 2015, contact was made with Mr. Séguin.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-44", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 110–112", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer can assess conduct in context and against a reasonable standard. In this case, the context and standard were provided by the Customs Act (R.S.C., 1985, c. 1 (2nd Supp.)) and the employer’s Reassessment Policy, which states that an importer’s obligation to correct duties for imported goods ends four years after importation. In the absence of a precisely defined service standard, common sense applies. The grievor’s lack of accountability and the way she tried to shift the blame to others are both of concern.\n\nFew labour precedents address gross negligence, which is the applicable principle in this case. Hildebrand v. Fox, 2008 BCCA 434, a common law action for negligence that arose in an employment context, reminds that when misconduct lacks conscious wrongdoing, gross negligence may still be found in departures from normal standards of conduct. Such departures can include loss of life, serious injuries, or grave damage. Stevenson v. First Nations University of Canada Inc., 2015 SKQB 122, which involved multiple instances of criminality, fraud, and financial impropriety by a person in a position of leadership and trust, reinforces the same concepts. The misconduct in that case raised questions about honesty; the same questions arise in this case. The issue is whether the grievor’s actions were a marked departure from the norm.\n\nThe concept of careless work is akin to gross negligence. If damage or disruption occurs in an employee’s domain, the employee must explain the causes. In this case, volition, recklessness, and negligence all supported imposing a severe penalty. A profound lack of judgment is the equivalent of gross negligence.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-45", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 113–115", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor’s failures on the company’s file included: · disregarding the FGU’s fall 2013 and winter 2014 recommendations and continuing to attempt to verify the manufacturing process; · placing too much weight on the company’s opinion and accepting the company’s arguments when the CBSA’s subject matter experts disagreed; · failing to follow up on her request for more information or to establish next steps; and · not being accountable, given the sums at stake, and taking no steps to accelerate the process, including while she was at CARM and on leave.\n\nEven if the grievor was not fully responsible, she was sufficiently responsible to warrant her termination. Her testimony shifted to minimize her responsibility, which impacts her credibility. The grievor tried to shift accountability for follow-ups to Mr. Riel. She said that she had faith in her staff but did not accept their recommendations. She did not know if they had closed the company’s file, despite telling Mr. McRoberts that it was on track. Mr. Pezoulas, Ms. Bartlett, Ms. Leblanc, Mr. Riel, and Mr. McRoberts all agreed that nothing else had to be done on the file.\n\nAlthough Mr. McRoberts knew that a deadline was approaching, he did not know that it would not be met, based on the grievor’s assurances. He believed that the company’s file would be completed in time. She did not provide him with details on the file. She was the respected trade expert. He did not understand the risks until he was fully briefed. He did not warn or counsel her because he believed that she was in control of the work. Her lack of forthrightness, minimization, unacceptable lack of follow-up, and failure to accept responsibility irrevocably broke the bond of trust.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-46", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 116–118", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Honda Canada Inc. v. Keays, 2008 SCC 39 at paragraph 59, (“Honda”) notes that aggravated damages apply for foreseeable mental distress due to the manner of the termination. These damages can also serve to punish malicious or egregious conduct, which must stand on its own as an independent actionable wrong for punitive damages to apply (see Whiten v. Pilot Insurance Co., 2002 SCC 18 at paras. 79, 82, and 83). Punitive damages are awarded to punish unfairness and bad faith and conduct so malicious and outrageous that it deserves punishment (see Honda at paras. 56, 57, and 62; and Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30 at para. 63).\n\nSpruce Hollow Heavy Haul Ltd. v. Madil, 2015 FC 1182 (“Spruce Hollow”), sets out the test for aggravated and punitive damages at paragraphs 81, 82 and 119 to 121. Termination is inherently unpleasant. This predictable unpleasantness is not a basis for aggravated or punitive damages. The grievor’s distress was within the ambit of what is predictable on termination. Although medical evidence is not a precondition for aggravated damages, more is required than the grievor demonstrated, including an itemization of the harms that she suffered.\n\nAn award of punitive damages must contemplate the lowest amount that is rationally required for deterrence. Compensatory damages can also punish an employer. Proportionality links considerations of compensatory, aggravated, and punitive damages (see Whiten, at para. 74 and 109 to 119; Greater Toronto Airports Authority v. Public Service Alliance Canada Local 004, 2011 ONSC 487 at paras. 125 to 127).", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-47", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 119–120", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor did not point to any identifiable prejudice. She was on paid leave while she was off work. There are reasons that the disciplinary process took a full year. There is no evidence that her ability to reply to the employer’s allegations was impaired and no evidence that it prolonged the investigation. There were lengthy settlement discussions.\n\nThe termination closely followed the end of the harassment investigation. The facts in this case are distinguishable from those in other aggravated- and punitive-damages cases. In Lyons v. Deputy Head (Correctional Service of Canada), 2022 FPSLREB 95, at paragraphs 12 to 14, the Board found deliberate intent by the employer to prejudice the grievor by misleading the Board. Employer conduct was the primary cause of severe symptoms of ill health as well as an inability to return to work. None of that applies in this case. Robitaille v. Deputy Head (Department of Transport), 2010 PSLRB 70 (“Robitaille PSLRB”) (upheld in 2011 FC 1218 (“Robitaille”)); and Greater Toronto Airports Authority are similarly distinguishable.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-48", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 121–122", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer cited the following cases in support of its position: Alberta Treasury Branches v. Cam Holdings LP, 2016 ABQB 33; Bahniuk v. Canada Revenue Agency, 2012 PSLRB 107; Basra v. Canada (Attorney General), 2010 FCA 24; Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419; Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62; D’Cunha v. Deputy Head (Correctional Service of Canada), 2019 FPSLREB 78; Fidler; Finlay v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 59; Gannon v. Treasury Board (National Defence), 2002 PSSRB 32 (overturned on other grounds in 2004 FCA 417); Greater Toronto Airports Authority; Hildebrand; Honda; Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA); Spruce Hollow; Robitaille PSLRB); Robitaille; Stevenson; Stokaluk v. Deputy Head (Canada Border Services Agency), 2015 PSLREB 24; Viner v. Deputy Head (Department of Health), 2022 FPSLREB 74; Whiten; and Brown and Beatty, Canadian Labour Arbitration, 5th ed. (2019) at ch. 7, s. 36.\n\nThe employer has not proven misconduct by the grievor, who was never counselled, warned, or disciplined or told that she was mishandling the company’s file. The Touchette v. Deputy Head (Canada Border Services Agency), 2019 FPSLREB 72, decision stresses that no deference is owed to an employer’s decision or investigation process, even when an investigation occurred. The grievor should be reinstated with all benefits, with aggravated and punitive damages for the employer’s callous and egregious behaviour. If the Board finds otherwise, at most, what should apply is a short suspension, given the multiple mitigating factors of long service, no discipline, an isolated incident, and strong performance.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-49", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 123–125", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer’s disciplinary process violated the fundamental principles of just-cause discipline. Ontario Store Fixtures v. C.J.A., Loc. 1072 (Phinn), 1993 CanLII 16809 (ON LA), emphasizes the importance of progressive discipline (at paras. 29 and 30). Timely discipline is essential; lost documents and faded memories may result otherwise, and the corrective function is lost. When other implicated employees receive no penalty for actions attracting discipline, the discriminatory result is inconsistent with just cause.\n\nAn employer is held strictly to its disciplinary grounds. The termination letter states that the grievor’s failure to act resulted in a “$25 million loss” and cites gross negligence and lack of judgment on her part. Mr. Ossowski testified that the termination was based not just on the company’s file but also on the grievor’s poor performance and CARM issues, as well the harassment allegations. Some of these factors were inappropriate for him to even consider.\n\nBecause gross negligence requires a marked departure from the norm, it is important to understand the TAPD’s normal practices. The grievor’s role did not include file work, from which she was two managerial levels removed. She provided leadership and ensured that sensitive files were properly handled. The day-to-day case work was done by Ms. Bartlett, who reported to Mr. Pezoulas or Mr. Grant. When pressed, Ms. Bartlett agreed that certain considerations did not factor into her work, such as a political or an economic impact. These considerations were addressed at the executive level.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-50", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 126–128", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In this context, was the grievor’s behaviour with respect to the company’s file a marked departure from the norm? She was updated and provided guidance, as was typical on high-impact files. She discussed the file at bilats with Ms. Leblanc and told Ms. Leblanc that the file required more work, to ensure due diligence. She asked Ms. Leblanc to direct the staff to carry out that work. This was consistent with her role. She expected the team to carry out her directions and to address her concerns. There was no shift in what she was looking for at any point in the file’s history.\n\nMs. Leblanc had minimal recollection of her conversations in 2014 with the grievor or of the nature of the follow-up directions or what she did with them. Mr. Pezoulas recalled that what he had to do was secure a fuller response from the manufacturers and hold a team meeting. Ms. Bartlett knew that the grievor wanted more information. Ms. Bartlett and Mr. Pezoulas had more meetings; Ms. Bartlett testified that Mr. Pezoulas and Mr. Trudel looked into the possibility of a site visit. Ms. Bartlett did not look into other options for pursuing the manufacturing process.\n\nWhen it was put to Ms. Bartlett that in February 2014, she understood that she had been told to do more work to close the manufacturing issue, she acknowledged that this was true. Despite all the evidence of follow-ups and bilat meetings variously involving the grievor, Ms. Gilbert, Mr. McRoberts, and Mr. Riel, there is no evidence that the FGU ceased work on the company’s file. As importantly, the grievor was never told that the FGU had decided to stop working on the file.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-51", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 129–130", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "No evidence supports a mishandling of the file or gross negligence. Mr. Grant worked on the file from February 2014 onwards. He was not called as a witness. Mr. Loynachan replaced Ms. Leblanc in June 2014. He met with the grievor and Mr. McRoberts from that point onwards. He did not testify. Mr. Wex supposedly said that the grievor had been given feedback and opportunities to improve. He did not testify, and her performance ratings do not align with that narrative. Nothing communicated to her orally suggested poor performance; nor does the evidence indicate that Mr. McRoberts performance-tracked her. She was clear; the company’s files were never mentioned in these reviews. The employer could have called witnesses with direct knowledge of performance problems or file-management issues but did not.\n\nThe grievor testified that she gave Mr. McRoberts a full briefing when he arrived at the TAPD. They met regularly, to discuss the BFs managed by Ms. Gilbert and Mr. Riel. This was a standard practice. The grievor believed that the necessary steps to advance the file were occurring and that Ms. Gilbert and Mr. Riel were promoting its progress. The grievor was waiting for a response, which would have allowed her to recommend that Mr. McRoberts sign the briefing note. The choice of when to sign off always sat with him; he could have signed off at any time. He agreed that the file was highly sensitive and that it had to be fully vetted. Like her, he knew that the verification decision had to be well supported and that the company was likely to litigate. He shied away from signing off on the briefing note without her approval. But that is what a senior executive is supposed to do; they are supposed to gauge risks and make the final call.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-52", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 131–133", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. McRoberts had conversations with the grievor throughout 2014. He could not recall the briefings on the company’s file, and he had no clear understanding of what she was waiting for, but he did recall directions to the FGU to do more work. This does not support an argument that she misrepresented the file’s status. Sometime in the fall of 2014, Mr. McRoberts learned about the four-year rule and then did nothing whatsoever with this critical information. He gave no directions, specific or otherwise, to the grievor; nor is there evidence that he asked her about the deadline. At some point in 2014, Mr. Pezoulas raised concerns with him about finishing the file. Yet, there is no evidence that Mr. McRoberts followed up with the grievor after that. He was content to let things play out.\n\nAlthough Mr. McRoberts already knew that duties would be lost if the decision was not issued by January 1, 2015, he took almost 10 additional months after the grievor’s departure to send the briefing note. Like her, he wanted a complete, defensible file. He said that Ms. Ardito-Toffolo would know what work was accomplished in those 10 months; the employer chose not to compel her testimony.\n\nMr. Ossowski said that the lost duties were a major factor in the termination. They almost all resulted from the months during which Mr. McRoberts waited and the grievor was not involved with the file. Employer witnesses were asked if an earlier decision would have resulted in a fuller duties recapture. This question was put to Mr. Pezoulas, Mr. McRoberts, and Ms. Bartlett; they all replied in the affirmative. Mr. McRoberts let the duties slip away. Despite this, the employer attributes responsibility for the lost duties to the grievor alone.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-53", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 134–135", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "There was little evidence on the disciplinary process. On March 31, 2015, the grievor had a positive performance meeting; the company’s file was not mentioned, and at that point, her involvement with the file had already ended. A week later, she was called to a meeting by Mr. Wex, and due to issues related to CARM, she was sent home. Mr. Wex gave her no details, explanation, or additional feedback. She left the meeting in shock. In summer 2015, she received a “does not meet expectations” performance evaluation, with no explanation, and despite the positive March performance meeting that took place just before she was sent home. In September 2015, she received a package vaguely alleging misconduct and performance issues. This was the first time any problem other than CARM was brought to her attention.\n\nDespite securing legal counsel and seeking information, the grievor heard nothing more until April 14, 2016, when she was sent two final reports. The first included multiple harassment allegations that she had never seen before. The second was the McRoberts Report.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-54", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 136–137", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The McRoberts Report is not an investigation report. Mr. McRoberts told Mr. Séguin at the outset that the grievor had lost the employer millions of dollars. Mr. Séguin was handed documents selected by Mr. McRoberts and was told to put them in order and to turn them into a narrative. He called employees if their testimony appeared relevant from the documents that he had been handed or if a document was unclear. He did not interview the grievor, Mr. Loynachan, Mr. Hill, Mr. Wex, or Mr. Grant. Mr. Séguin did not look at the whole file; nor did he look at the grievor’s file. Both were highly relevant. It was not a fair or investigative process, but nonetheless, Mr. Ossowski relied on it, mistakenly believing that it was an investigation. Basing a conclusion on an improper process displays callous disregard, which was exacerbated by undue delay. This was a breach of procedural fairness.\n\nWhen the two reports were dropped on the grievor in April 2016, she was blindsided. She had just spent a long, lonely year speculating, wondering, and worrying. Reading the harassment allegations and the McRoberts Report was gut-wrenching. Her first input was her legal counsel’s written response to the completed report. Mr. Ossowski dismissed it out of hand because it did not match the McRoberts Report. When the grievor asked to meet with Mr. Ossowski, her request was refused. She was given one chance to meet with the CBSA’s Human Resources branch. Six weeks later, the termination letter cited harassment allegations because Mr. Ossowski said they were “serious”, even though they had already been dismissed.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-55", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 138–139", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "For the grievor, this had huge career, emotional, and financial impacts. The impact of the entire process has cut deep. She now second-guesses everything, has trust issues, and worries that a similar situation might recur. She lacks self-confidence. Given her age, the lost years mean that certain executive opportunities she might once have enjoyed will never be available to her.\n\nNegligence is not typically a labour law concept. In Schenkman v. Treasury Board (Public Works and Government Services Canada), 2002 PSSRB 62, the grievor was terminated for gross negligence. The grievance was allowed because there was insufficient evidence to substantiate the allegations. In Manitoba v. Manitoba Government and General Employees’ Union, [2002] M.G.A.D. No. 56 (QL), a 30-year employee was terminated due to a file backlog, delay, and failure to close files. The employer had tried suspensions and performance management before turning to termination. The arbitrator noted that the grievor gave unchallenged evidence that his explanations were not unreasonable and that failing to keep up with the workload alone does not amount to misconduct. The events required for performance-related discipline did not occur in the file.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-56", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 140–141", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Pugh v. Deputy Head (Department of National Defence), 2013 PSLRB 123, concerned two suspensions. There was a written document with performance expectations, but the performance expectations were unreasonable. The employer did not consider the grievor’s explanation. Concern was expressed in the decision about assumptions and hearsay evidence. In Saint-Amour v. Treasury Board (Fisheries and Oceans), PSSRB File No. 166-02-27502 (19971104), the grievor was suspended due to negligence. The adjudicator noted that errors in judgment do not necessarily warrant disciplinary action. As for negligence, the case discussed an exercise of discretion in a way that the employer did not ultimately prefer. Matters cannot be assessed with 20-20 hindsight; nor should they be subjected to speculation.\n\nGross negligence requires a marked departure from normal standards, typically including wanton, wilful conduct and an utter lack of care. The standards must be clear and reasonable. Cases referenced by the employer set out how grave the departure from normal standards must be. Brazeau involved fraud and concealment. Stokaluk involved criminal activity. Gannon involved deliberate lies about qualifications. Stevenson involved fraud and dishonest conduct. None of this applies in this case. The grievor’s conduct was in line with standard CBSA practices and was within the reasonable exercise of her discretion.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-57", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 142–143", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Multiple considerations had to be balanced with respect to the company’s file. The grievor fulfilled her oversight role and took areas of concern seriously. She was briefed and discussed the file. She gave direction and trusted staff to do the file work. She used the standard follow-up process. She ensured that the briefing note would be ready as soon as new information was received. When her personal file disappeared, she followed up immediately. She was never told that work on the file had stopped and had no way of knowing if her directions were being ignored.\n\nOne indicator that her approach was reasonable is the fact that Mr. McRoberts and Ms. Ardito-Toffolo essentially took the same approach after the grievor ceased her involvement with the file. Had it been essential to issue the verification decision immediately and had the file been ready to advance since 2013, as alleged, Mr. McRoberts could have forwarded the briefing note immediately, and the lost duties would have been almost entirely avoided. In this sense, the penalty that the grievor received was discriminatory and inconsistent. This also runs counter to the employer’s argument that the grievor’s approach was a marked departure from normal procedures. It is more logical to conclude that the file was not yet complete in January of 2015 and that it was more important to be thorough and accurate than to rush it through. No evidence set out that the grievor’s actions cost taxpayers millions of dollars, which is essential to the case against her.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-58", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 144–145", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Before an employer contemplates discipline based on careless work, it must provide the employee with counseling and warnings. In this case, there were none. The grievor was left to handle the file as she thought best, which is what she did, and she did so transparently. Her actions were consistent with her level of responsibility and were informed by appropriate concerns. The employer knew what she was waiting for and knew what she was telling the team and gave every appearance that it all was acceptable. If it was dissatisfied with her work, it could have counselled her through warnings or directions to handle the file differently. Instead, over multiple rounds of performance reviews, the company’s file was never raised. The employer cannot now state that her actions on the company’s file constituted misconduct.\n\nRecently, in Lyons, the Board canvassed issues related to aggravated and punitive damages. The facts in this case point to a lesser amount of damages than occurred in Lyons, but the principles are the same. The principles set out in Honda apply, based on the employer’s unfair, bad-faith, and unduly insensitive conduct, which denied the grievor’s right to natural justice. Lyons speaks of jumping to conclusions and relying on serious but ultimately unfounded allegations. It also speaks of impugned motives and intent and months and years of disciplinary process.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-59", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 146–148", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Lyons also discusses the harm caused by employer actions. In cases without medical evidence, the range of damages is generally in the order of $25 000 to $35 000. These damages cover frustration, hurt feelings, and stress rather than medical issues. Aggravated damages related to physical and psychological exhaustion were assessed at $20 000 in Mattalah v. Treasury Board (Department of Foreign Affairs, Trade and Development), 2018 FPSLREB 13.\n\nThe wrongful action in this case was the unfair, insensitive, and bad-faith approach to discipline. Procedural fairness was lacking in the entire process. The employer threw every allegation it could muster at the grievor, without supporting facts, and made personal attacks about bullying and abuse. Only one of those allegations is before the Board. The termination was based on a narrative report, which was driven by a predetermined conclusion. The grievor’s feedback was never seriously considered. She was terminated in part based on unfounded harassment allegations and bald assertions that were repeated at the hearing. Without foundation, Mr. Ossowski called her behaviour deliberate; Mr. McRoberts called it sabotage.\n\nThe grievor detailed the harms that these actions caused. Are these harms worse than what is predictable in the wake of a typical termination? When she was first sent home, she was devastated; she was blindsided, lonely, and isolated. She resorted to counselling. She is still working to regain trust, as happened in the Mattalah case. The $25 000 to $35 000 range for aggravated damages is appropriate in this case.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-60", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "para 149", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Had the employer really wanted to understand the company’s file, it could have properly investigated the conduct and actions of everyone involved. The only logical inference to be drawn from the employer’s course of action is that it already knew the answer it wanted. This is clear from how the McRoberts Report was prepared. Unlike the Robitaille case, the grievor in this case was never even interviewed. The failure to undertake an investigation and including harassment allegations — which the employer said were unfounded — among the termination grounds deserves censure. This sophisticated employer knows the procedures for a just-cause termination and chose not to follow them. This cut to the core of the grievor’s identity. Therefore, the appropriate amount of punitive damages is $50 000 to $75 000. She requested that the Board remain seized of any award, and she seeks salary, performance pay, interest, vacation and severance, benefits, sick leave, and out-of-pocket expenses for the buyback of pensionable time post-termination.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-61", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 150–152", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor relied on these authorities: Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1976] B.C.L.R.B.D. No. 98 (QL); Touchette; Ontario Store Fixtures Inc.; Brown and Beatty, Canadian Labour Arbitration, 5th ed., at paragraphs 7:7 and 7:70; Aerocide Dispensers Ltd. v. United Steelworkers of America, [1965] O.L.A.A. No. 1 (QL); Schenkman; Manitoba; Pugh; Saint-Amour; Beaulne v. Treasury Board (Transport Canada), [1997] C.P.S.S.R.B. No. 100 (QL); Lyons; Mattalah; Robitaille PSLRB; Robitaille; Saadati v. Moorhead, [2017] 1 S.C.R. 543; Tipple v. Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 110, Tipple v. Deputy Head (Department of Public Works and Government Services), 2010 PSLRB 83; Knight v. Parrish & Heinbecker, Ltd., [2006] C.L.A.D. No. 293 (QL); and Paquette v. TeraGo Networks Inc., 2016 ONCA 618.\n\nThe allegation of discriminatory discipline as a mitigating factor, giving Mr. McRoberts co-responsibility with regard to the company’s file, is unsupported by the evidence. Mr. McRoberts’ role was to operationalize the merger. His focus was on operational issues such as people management, stakeholder relations and financial matters. In this context, he wanted to leverage the grievor’s knowledge and expertise. He never said that he was jointly responsible for files. No evidence set out that Mr. McRoberts was as responsible as the grievor was for the losses that occurred. The grievor was the responsible manager on the company’s file.\n\nThe force with which Mr. McRoberts and Mr. Ossowski stated that the grievor was a bully was overstated. Mr. Ossowski did acknowledge in his testimony that the harassment allegations were ultimately dropped.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-62", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 153–156", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor referred in evidence to the company’s file being on her to-do list. But at each 2014 BF meeting, the file’s status remained the same. It is clear from the November 2014 emails that neither Mr. Riel nor Ms. Gilbert had heard of the request for more manufacturer information, so the grievor then explained to Mr. Riel what she had requested. If she had already told him, why would she have had to explain it again? As for the grievor’s assertion that no one made her aware that the information that she sought on the files was not coming, there is insufficient evidence to support it. The Board never heard from Mr. Grant at the hearing, to prove that no one made her aware. The grievor should have relied on Ms. Bartlett and trusted her expertise.\n\nIt is beyond the Board’s jurisdiction to review matters arising in the disciplinary investigation which were not advanced at the hearing as grounds for discipline.\n\nProgressive discipline is not appropriate in this instance because such discipline should only be considered where the misconduct is insufficient to warrant termination. Here, the termination of employment was warranted.\n\nDiscipline and termination of employment made under the authority of s. 12(1) of the Financial Administration Act (R.S.C., 1985, c. F-11) must be for cause. The test consistently applied in disciplinary and termination matters before the Board was established in Wm. Scott. When applying that test, I must determine whether, on the balance of probabilities, the employer has proven the misconduct relied on for discipline. If the misconduct is proven, I must decide whether the discipline was excessive and, if so, what penalty is appropriate.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-63", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 157–159", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grounds for discipline are that the grievor: … … failed to issue, or cause to be issued, the final verification report relating to the tariff classification of certain products imported by [the company] in a timely manner, despite it being your responsibility to do so, resulting in a loss of duties in excess of $25,000,000 as a result of the expiration of statutory time limits on recovery …. …\n\nThe termination letter also cites gross negligence, serious and significant lack of judgment and insubordination. At the hearing, the employer clarified that the insubordination grounds related only to the CARM file and were unrelated to the allegations about the company’s file. As mentioned, the termination grounds related to CARM were withdrawn at the hearing.\n\nTypically, culpable failures to comply with workplace orders are characterized as insubordination (see Chauvin v. Deputy Head (Offices of the Information and Privacy Commissioners of Canada), 2012 PSLRB 66; and Samson v. Deputy Head (Department of Justice), 2019 FPSLREB 40). In this case, the employer argues that the grievor’s gross negligence and lack of judgment led to avoidable losses in the company’s file.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-64", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "para 160", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Concepts of gross negligence and lack of judgment arise infrequently in labour and employment law. As the Stevenson case noted, at paragraph 33, negligence “… is not the usual language that would be used to catch the many obligations that exist, and the wide range of breaches which might arise, in an employment relationship …”. Stevenson considered the term “gross negligence of duty” only because it appeared in the employment contract at issue as a potential ground of dismissal. Both parties’ arguments, citing case law, noted that negligence may be found in a marked departure from the norm. Stevenson also notes that “the ‘marked departure’ test” (Stevenson, at para. 35) has been referred to with approval in multiple cases. When deciding whether there had been gross negligence in the context of employment, the Court in Stevenson stated as follows at paragraph 38: [38] … The relevant considerations would properly include not only the extent to which [the employee] failed to comply with the duty at issue, but the potential impact of that failure, which in turns [sic] affects the standard of performance or conduct that applies to the actions at issue.…", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-65", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 161–162", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "What little case law exists informs that a finding of employee misconduct based on negligence requires evidence of a marked departure from the normal standards of workplace conduct. This requirement is captured in the first of the three relevant Stevenson considerations, “… the extent to which [the employee] failed to comply with the duty at issue …”. Many of the cases referencing negligence or related concepts, also involved deceit, dishonesty, fraud, or criminality. For example, in finding that the respondent in Stevenson had been negligent, the Court cited fraud, falsification, and unauthorized expenditures that directly benefitted the plaintiff. Similar issues arose in Beaulne (which cites negligence and lack of judgement), and in Gannon and Stokaluk (both of which cite lack of judgment, but not negligence). Other indicators of negligence include a lack of care and wanton, reckless, or willful behaviour.\n\nWorkplace standards must be clear and reasonable. An employee’s exercise of judgement when following the standards need not be perfect; nor should the reasonable exercise of employee discretion be censured (see St. Amour, at pp. 12). As in all discipline cases, even when a calamity or disturbance has occurred on the employee’s “watch”, the employer still has the burden of proving that the employee did something culpable in the circumstances (see Pugh, at para. 171, Schenkman, at paras. 57 to 59). Only if this can be established, as noted in the Canadian Labour Arbitration passages cited by the employer, may the employee then be called upon to explain why what occurred was not caused by their misconduct. If the employee’s explanation is reasonable and unchallenged, negligence will not be proven (see Manitoba, at para. 29).", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-66", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 163–165", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Accordingly, when determining whether the employer established misconduct based on negligence, I must consider these questions: 1) What workplace standards applied to the grievor’s responsibilities on the company’s file? 2) Did the grievor fail to comply with these standards? 3) If the grievor failed to comply, was the failure such a marked departure from workplace standards of conduct that it constituted misconduct?\n\nThe answer to this question requires a consideration of what the grievor’s work on the company’s file entailed. The grievor was not responsible for the day-to-day file work on FGU files, including the company’s file. The only evidence that suggested otherwise came from Mr. McRoberts. His suggestion that she led or performed the day-to-day work on the company’s file does not align with any of the other evidence. She declined a meeting on the file’s particulars because she felt that the FGU should have done that work. She was confident that the FGU was carrying out her directions and addressing her concerns. She had been explicit about what she wanted, and she expected her directions to be followed. How they would be followed was up to the FGU’s staff members and their supervisors.\n\nThe grievor’s role with respect to the FGU’s work was to advise and guide the managers who oversaw it; two managerial levels stood between her and the FGU’s line work. Closest to her in the hierarchy were directors such as Ms. Leblanc, Mr. Loynachan, and Ms. Ardito-Toffolo. At the next level were unit managers, such as Mr. Grant and Mr. Pezoulas. Finally, working within the FGU were subject matter experts, such as Ms. Bartlett.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-67", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 166–167", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Although the grievor was not responsible for day-to-day file work, she had considerable discretion over many aspects of the direction of the company’s file. Until Mr. McRoberts arrived, this discretion included the ability to do the following: · decide if changes to the briefing note drafted by the FGU’s staff were needed; · decide if further information was required before finalizing a briefing note; · decide whether to delay sending a briefing note, pending the receipt of additional information; · direct others with respect to outstanding tasks or missing information; and · decide whether to sign a briefing note and forward it to senior CBSA leaders.\n\nMuch of this discretion remained after Mr. McRoberts arrived, but after that, the grievor was no longer the ultimate authority within the TAPD. Her discretionary scope and responsibilities became subject to his direction; she was no longer the ultimate signatory on briefing notes. Although he was not responsible for assessing her performance, multiple emails were adduced in evidence in which he directed her and established expectations that demonstrated their subordinate-superior relationship.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-68", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 168–170", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Some of the standards which applied to these responsibilities can be construed based on the PMAs placed in evidence for the grievor’s roles in the TPD and TAPD. The grievor was appointed to an EX-02 role in the TPD in December 2012. Among many other performance measures, her PMA for the 2011-2012 fiscal year includes references to high quality and consistent policy advice being provided in a timely fashion. Both the 2011-2012 and the 2012-2013 PMAs reference support being provided to regional officers in respect of complex cases, in a cost-efficient manner. The 2012-2013 PMA also references the need to provide quality and timely advice to the president and executive vice-president.\n\nThe employer contends that the grievor’s negligent failure to cause the verification report to be issued in a timely way led to significant financial losses. When considering whether this misconduct has been proven, I must determine whether there were standards in the workplace that would have required her to issue the verification decision so that no (or fewer) losses would have occurred, such that a failure to comply with these standards constituted a marked departure from the norm.\n\nAs previously mentioned, there was no clearly communicated direction or order to the grievor about the company’s file. Despite this, the employer asserts that by looking at BF lists, calendar entries, emails, and the four-year rule, an expectation can be implied that establishes the grievor’s responsibility to avoid any lost duties by finalizing the briefing note needed to complete the company’s file. I am not persuaded by this argument.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-69", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 171–172", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The BF lists and calendar entries reflect standard tracking procedures found in many workplaces. These lists and entries offer little information about what was to be completed or when or by whom. Ms. Gilbert’s July 16, 2014, email listed items requiring the grievor’s attention and included the company’s file. In that email, another briefing note is marked as urgent; the bullet point for the company’s file does not contain an urgent tag. Furthermore, there is no clear direction to complete the company’s file or any of the other files listed, by a certain date. Instead, the email vaguely references “items that would need Anne’s attention.” This cannot be viewed as either an order or an expectation to send the briefing note, which would have triggered the region’s issuance of the verification decision.\n\nMr. McRoberts’ October 10, 2014, email does not align with the employer’s argument that at that time, the grievor should have clearly understood the urgency with respect to the 4-year rule and the company’s file such that her failure to act promptly was negligent in its untimeliness. Nothing in the email reflects any special urgency for the company’s file. The attached to-do list included 24 items. Mr. McRoberts testified that some of the files on the list were ongoing projects for which file closure was not expected.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-70", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 173–174", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "While progress of some sort was clearly expected for each file, and the email provides clear evidence that Mr. McRoberts directed the grievor’s work on multiple files, the level of progress and the tasks to be completed were not specified. The email notes that “Manon [Gilbert] has the context and details for most of the items.” Clearly, some contextualization was required to understand the work expected on the files listed. This context was not clarified at the hearing. Ms. Gilbert is deceased. It is unclear from the email whether the company’s file was expected to be completed in its entirety or whether the email referenced a specific task for the company’s file, such as communicating with the FGU, following up on manufacturer contact plans, or the receipt of the long-awaited information about the manufacturing process.\n\nMr. McRoberts and the grievor differed on the email’s direction for the company’s file. Mr. McRoberts said that the email indicated a requirement for file completion. The grievor said that she understood it to mean that progress should be made on the file. I find the grievor’s testimony about her understanding to be entirely credible. Further I find this to be the most reasonable interpretation of the email’s direction on the company’s file. This finding is consistent both with Mr. McRoberts’ testimony that he believed that the grievor was waiting for more information and his testimony that he trusted her. It is further consistent with the agreed fact that he took no actions on the file after his return, nor did he order the grievor to take any. The October 2014 email is not evidence of an expectation that the grievor was expected to close the file by the date of Mr. McRoberts’ return.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-71", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "para 175", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer argues that there was an implied obligation to complete the file in a way that respected the four-year deadline. The employer’s repeated references to a deadline deserve examination, as this so-called deadline is central to the employer’s argument that the grievor failed to resolve the file in a timely way and that this was a marked departure from workplace standards. However, there was little concrete evidence of what timeliness meant in the context of the company’s file. It is fair to assume that the CBSA wanted to minimize any duties lost. There was credible evidence from Mr. Riel about “pressure” being brought by Mr. McRoberts to advance the file (although Mr. McRoberts himself did not recall this). But it is also clear that there were multifaceted considerations that might have overridden the loss of some retroactive duties. This is particularly relevant, given that when the grievor’s work on the file ended, the lost retroactive duties were still relatively minimal, compared to the losses that ultimately accrued and were attributed to her after her work on the company’s file ended.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-72", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 176–177", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In her testimony, the grievor stated that there is no statutory deadline for a verification decision, and therefore, there was no statutory deadline for the company’s file. The employer characterized this statement as evidence of her failure to handle the file properly. But she was correct. There is no statutory deadline for issuing a verification decision. Rather than imposing a deadline, the Reassessment Policy, which cites the statutory limitations for customs corrections, outlines date-based consequences on retroactive duties. No collection of duties is possible for imports made more than four years before the verification decision is issued. This is a consequence. A consequence is not a deadline.\n\nAn employer can set a deadline for work even if a statute does not. But there were no service standards for the FGU’s advice and support to the regions. Further, as noted above, the employer did not expressly identify a deadline for closing the company’s file. From January 1 until November 17, 2015, the retroactive duties that could have been collected decreased incrementally each time the corresponding 2011 date of one of the company’s imports passed. There is no evidence of an order or direction that no retroactive duties were to be lost, which would have meant a December 31, 2014, deadline; nor is there evidence of a maximum acceptable amount of lost duties, which would have resulted in a deadline sometime in 2015.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-73", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 178–179", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Another difficulty with the employer’s argument that an implied norm or standard arose from the four-year rule is that this standard would have applied also to Mr. McRoberts and perhaps would have placed him under an even greater obligation, given his role in the hierarchy and the fact that nearly all the losses occurred after the grievor’s role on the company’s file ended.\n\nMr. McRoberts admitted that he knew of the four-year rule by sometime in late 2014. In my view, the evidence strongly suggests that he may well have been aware of the four-year rule before that time. Ms. Leblanc briefed him on the file in early 2014. The file arose repeatedly in conversations with several TAPD staff members, including Ms. Leblanc, who briefed the grievor and Mr. McRoberts on the file simultaneously, and as well with Mr. Riel and Ms. Gilbert, based on the testimonies of several witnesses. Mr. Riel remembered clearly that Mr. McRoberts pushed the grievor for information about when the company’s file would be complete when it was discussed in their bilats. It seems highly improbable that the critical four-year rule was never mentioned in these conversations. Further, Mr. McRoberts’ memory on multiple aspects of the company’s file and the TAPD’s structure was vague and selective. Unfortunately, Mr. Grant and Mr. Loynachan, who might have shed more light on discussions of the four-year rule, and McRoberts’ awareness of it, were not called as witnesses.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-74", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 180–181", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Even if I accept Mr. McRoberts’ professed unawareness of the four-year rule until late 2014, it is notable that no actions flow from the awareness that he stated he gained at that time. He did not expressly direct the file closed, to ensure that no duties were lost. Even if I accept the employer’s argument that the October email was a direct order to close the file (which I do not), this does not explain why he did not, as all witnesses who addressed this issue indicated that he easily could have, simply sign the briefing note either before the end of 2014 or after the grievor went to CARM, as would have been expected and necessary had a failure to do so truly amounted to a marked departure from normal workplace standards. No evidence set out that he ever even asked the grievor for more details on the company’s file or to explain or justify her approach. None of this is consistent with the employer’s narrative that she breached a workplace norm or standard, given the undisputed evidence that Mr. McRoberts would have been aware of this breach by, at the very latest, fall 2014.\n\nAt the grievor’s March 2014 performance meeting with Mr. Wex, the company’s file was not even mentioned, although by then, the lost retroactive duties were accruing, as multiple players in the TAPD, including Mr. McRoberts, were well aware. Nothing in these facts suggests that those in a position to direct the grievor found her actions inconsistent with the prevailing workplace standards. It suggests the opposite — her exercise of discretion was consistent with these standards.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-75", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 182–184", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Some of the arguments advanced by the employer amounted to a suggestion that Mr. McRoberts did not issue a direct order on the company’s file because he lacked the understanding to do so; his role was to “operationalize” the merger rather than to understand the TAPD’s or FGU’s work. The employer argues that although Mr. McRoberts could have told the grievor that her approach to the company’s file was no longer acceptable and that the briefing note was to be forwarded immediately, he did not, because he believed her when she held herself out as a trade matters expert. The grievor’s trade expertise was an agreed fact; her 2013-2014 PMA notes, with regard to the grievor, that “[t]he depth of her trade expertise is regularly relied upon by senior management.”\n\nThere are two problems with this line of argument. First, it is impossible to reconcile this total reliance with Mr. McRoberts’ executive role and the clear evidence of his managerial oversight with respect to the grievor. Managers do not take direction from those who are subordinate to them.\n\nThe second problem is more complex. Mr. McRoberts advanced two explanations for his reliance on the grievor. The first was that she encouraged him to rely on her. For example, he said that the reason that he did not move the file forward was that she said that she alone had the knowledge required for the file, “because she knew the partners and the players”.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-76", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 185–186", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "For several reasons, I do not find Mr. McRoberts’ testimony on this credible. Nothing in the grievor’s testimony, or that of others, suggested that her handling of the file required her to know the “partners or players”. Only Mr. McRoberts characterized her approach that way. Furthermore, she wanted the FGU to complete the work, rather than wanting to do it herself. No contemporaneous evidence or testimony at the hearing set out that she held herself out as an expert in dairy science or manufacturing processes — she relied on others for that expertise. And, after she went to CARM, the grievor appeared entirely content to hand off the company’s file. She never suggested that her continued involvement was required. Mr. McRoberts’ testimony about her statements appeared to have been made for the purpose of explaining and excusing his failures to take action on the file.\n\nIn the same vein, Mr. McRoberts’ second explanation for his reliance on the grievor was that she was a trade expert; he was not. This boils down to a contention that he had to rely on her because he did not understand the work. Ample evidence suggests that Mr. McRoberts’ grasp of the company’s file, the FGU’s work, and the structure of the TAPD was so weak that he chose to defer to others, including the grievor. It would be possible to conclude, based on that evidence, he did not order her to close the company’s file because his understanding of the file was hazy. It may well be that with 20-20 hindsight, he now wishes that he had taken a different approach. Responsibility his choices does not, as argued by the employer, sit with the grievor.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-77", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 187–188", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I am not persuaded by the argument that the grievor should have accepted the advice and recommendations of those one, two, and three levels below her in the chain of command, given that it would have effectively required an inversion of the workplace hierarchy. This argument disregards her mandate to direct subordinates. Her role included providing guidance to others, before and after the merger. Her directions to subordinates to complete additional work that they would have preferred not to have done, even where that preference was based on an honest evaluation and judgement, is not evidence of her negligence or lack of judgement. It is evidence of differing points of view. The grievor, as the manager, had the discretion to resolve these differences in a way that was reasonable and for the purpose of protecting the CBSA’s interests. This is what she did.\n\nI might have found differently had the grievor’s directions to the FGU or her concerns about the manufacturing process appeared either unreasonable or obstructive. But ample evidence before me pointed to the reasonableness of these directions. Information about the manufacturing process was requested in the CBSA’s June 25, 2012, letter to the company initiating the verification, long before the grievor’s involvement with the file. In that letter, the CSBA asked, “How is each product manufactured? What is each product used for? How is each sample stored?” These questions all relate, directly or indirectly, to manufacturing. It is clear from the letter that manufacturing process information was important and relevant.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-78", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 189–190", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "There are other hallmarks of reasonableness in the grievor’s continued pursuit of this additional information. Her explanation that she had to ensure the defensibility of the CBSA’s ultimate decision is consistent with the undisputed evidence that this sensitive file required cautious, careful treatment. The company did not merely advance an unsupported argument about its imports. It sought the input of Dr. Hill, an acknowledged expert, and cited previous CBSA decisions. The grievor transparently acknowledged in her testimony that she knew that the FGU’s position might prevail in the long run. She had no preference for a particular result but had to ensure that the CBSA would have a defensible file if it faced public, legal, or political scrutiny. All the CBSA’s witnesses said that this was possible. Making recommendations on matters of this nature was part of her executive role. Taking all of this into account, I cannot conclude that her actions were careless, or for the purpose of stalling the file. The evidence indicates the contrary, that she wished to take a prudent and comprehensive approach.\n\nThe employer’s argument that the grievor failed to follow her subordinates’ directions also sidesteps Mr. McRoberts’ managerial responsibility to direct her. The TAPD’s staff had differing views on the company’s file. The grievor wanted more information; the FGU wanted to go ahead without it. Mr. McRoberts decided to defer completely to the grievor, based on his view that she held herself out as a trade expert. While his deferral to her is consistent with the employer’s argument that she should have deferred to those below her in the chain of command, it was consistent neither with his executive role nor with any normal understanding of workplace hierarchies.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-79", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 191–192", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As Mr. McRoberts agreed on cross-examination, it was his job as the most senior manager to decide between the opposing views on the company’s file. He cannot blame his failure to do so on the grievor. This is especially so given that her actions on the company’s file were transparent and within the scope of her role. If the CBSA disagreed with her choices, a direction to handle the file differently would have needed to come from either Mr. Wex or the only TAPD employee more senior than her: Mr. McRoberts. She cannot be faulted for not taking direction from the subordinates to whom she was supposed to provide guidance.\n\nThe employer also tried to make much of the idea that there is a difference between asking for information that one does not yet have and verifying the information that one already has, and that the grievor gave inconsistent testimony in this regard. Evidence from multiple witnesses indicated that the grievor asked for information that she did not have, to verify or confirm the information that was on hand and the position taken by the FGU based on that information. Small changes in phrasing at different moments did not impact her credibility or reliability.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-80", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 193–195", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer argued that the grievor accepted the company’s argument that the CBSA was vulnerable to criticism even though the CBSA’s subject matter experts disagreed. It is hard to reconcile this argument with the evidence. Multiple witnesses confirmed that the CBSA could indeed have received multifaceted criticism in the wake of a reclassification with such an enormous financial impact; the undisputed need for a briefing note on the company’s file was evidence that everyone wanted to ensure that the CBSA was prepared to face it. I do not find that the grievor’s choice to seek further information to ensure that the company’s potentially valid arguments were not improperly disregarded was unreasonable.\n\nAgain, had the grievor concealed either her course of action or the potential financial impact of missing some or all of the four-year window, my finding might have been different. I saw no evidence that she was not forthright about the file’s status or its financial implications. Witnesses who could have testified to her lack of transparency were not called to give evidence.\n\nOverall, the employer casts the grievor simultaneously as a line worker responsible for minutiae and stick-handling the company’s file, a middle manager responsible for routine guidance, an executive assistant tracking BFs, and a chief executive responsible for signoff. Before the merger, she was indeed a chief executive, but that role ended early in 2014. After the merger, she held none of those roles.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-81", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 196–197", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "This argument is not consistent with the evidence. There were two levels of management between the grievor and the FGU subject matter experts, both of whom had a role in actioning her directions. A regular follow-up list was managed by the two executive assistants. The grievor explained why she did not expect rapid results on her requests. She knew that reaching out to the U.S. manufacturers would take time and planning. Further, her direction to subordinates had simply been to obtain the missing information; it was up to the FGU to devise a plan for doing so. Her assumption that her directions were being actioned does not appear unreasonable, given her role and the tracking that was in place within the TPD and then the TAPD.\n\nTo start with the second half of this argument, it is entirely unclear why the grievor would have been accountable for the company’s file after she went to CARM. It was undisputed that at that point, she had no role in the company’s file and no longer had carriage of her previous TAPD files. It would have been inappropriate for her to attempt to continue to direct this work. The grievor knew that Mr. McRoberts and others were well aware of the file and the four-year rule. Mr. McRoberts had discussed the file’s completion in meetings. It was reasonable for her to take for granted that he, rather than she, would continue to promote the file’s closure with whoever took on her previous role or with the FGU. It is difficult to see how any other conclusion could be reached. Most of the lost duties relate to months when she was at CARM or on leave.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-82", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 198–199", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As for the first assertion, it would have been open to the CBSA to tell the grievor to stop seeking the additional information and accelerate the process. This did not happen. It was not open to the CBSA, knowing the course of action that she was taking, to allow her to persist in that course of action for months and to expect her to guess that eventually, it would be deemed unacceptable.\n\nThe sums at stake function to bolster this conclusion. The grievor’s testimony was that one of the reasons she wanted to close the remaining gap on the file was the exceptional amount of retroactive duties, which had the potential to bankrupt the company and cause regional unemployment, with the consequence that the verification decision might attract political and media attention. Litigation was also a distinct possibility. This is consistent with the testimonies of other witnesses, including Mr. McRoberts, who indicated that the file required careful handling. The grievor chose to exercise her discretion to ensure the completeness and defensibility of the CBSA’s position. The sums in question, and their potential impact, point to the reasonableness of her approach rather than to negligence, lack of judgement or carelessness.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-83", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 200–201", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer alleges that the grievor’s file on the company was left in such a state that it required 10 months of work to “rebuild” it after she left and that several of the other files that she left behind had not been handled in a timely way, which delayed the rebuilding exercise. No detail was provided with respect to the other files; nor was untimely file completion raised in any of the grievor’s performance assessments or discussions before her departure from the workplace. This reference to untimely work is essentially a repackaging of the “timely completion of assignments” section of the McRoberts Report, which was not included as a termination ground in the termination letter. Since it chose not to rely on the untimely completion of assignments as a ground for termination, the employer cannot raise that ground through what amounts to the back door of the company’s file.\n\nIt is undisputed that both Mr. McRoberts and Ms. Ardito-Toffolo were aware of the company’s file by sometime in the fall of 2014. If after that point they ultimately chose to focus their attention on other files, including files formerly handled by the grievor, the responsibility for that choice does not sit with the grievor.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-84", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 202–204", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Further, it is difficult to understand how a file could have been both ready to go forward in the fall of 2013, as the employer contends, but left in such a state by the grievor by January 2015 that 10 additional months of work were required to resolve it in a context in which the grievor had not been the person doing the substantive file work. There are clear statements from all witnesses employed by the CBSA (except Mr. McRoberts) that the FGU did the day-to-day work on the company’s file. Several emails reflect this testimony; none are inconsistent with it. The FGU is where the company’s substantive verification guidance file resided. How rebuilding the grievor’s file could have mattered is a mystery.\n\nAt several points, the employer included in evidence and argument references to the grievor’s poor communication practices, such as the fact that she “sometimes” used capital letters in emails (infrequently, based on the emails adduced in evidence). The termination was not based on her demeanour or tone, and to this extent, these observations were irrelevant.\n\nThe grievor’s transparent, consistent approach to the file does not align with the employer’s narrative of sabotage or negligence motivated by the downgrading of her authority after the merger, or of a departure from her duties and role with the TAPD’s hierarchy. She took the same approach to the file before the merger as she did afterward. That approach was openly disclosed in meetings and multiple emails. It never changed. These facts do not support allegations that her actions constituted sabotage or were motivated by hurt feelings from the merger.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-85", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 205–208", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Nothing before me indicates that the grievor fulfilled her responsibilities on the company’s file in a manner that was negligent or lacked judgement. Having found that the grievor did not fail to comply with workplace standards, there is no need for me to consider whether her failures were such a marked departure from these standards that they constituted misconduct. The employer did not prove misconduct on her part. As such, the employer has not established that the termination of her employment was warranted or for cause, and the grievance is allowed.\n\nIn the event that the grievance was allowed, the parties asked me not to bifurcate the hearing, and to remain seized of any outstanding issues that the parties were unable to resolve.\n\nThe grievor is retroactively reinstated as of the date of her termination, as detailed in the order, to compensate her for the financial losses that flowed from her termination.\n\nThe grievor’s compensation included performance-based bonuses. For four of the five years before she was sent home, she received two performance ratings of “surpassed”, one of “succeeded”, and one of “succeeded minus”. I accept her explanation for her “succeeded minus” rating; it was a mandatory rating given to new executives, as indicated on the form. In essence, it is the equivalent of a “succeeds” rating. The 2014-2015 “does not meet” rating arose in an overall context of procedural unfairness (described in detail under the heading, “Was the employer’s conduct egregious?”). It is not reliable because of this and because of its inconsistency with the preliminary, informal performance review for the same period.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-86", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 209–211", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Wex could have testified to the grievor’s 2014-2015 performance; he was not called. The only reliable future performance indicators are the 4 prior annual ratings. It is reasonable to conclude that on a balance of probabilities, she would have continued to achieve “surpassed” ratings 50% of the time and “succeeds” ratings 50% of the time. Her retroactive bonus pay is to be calculated on that basis.\n\nPursuant to s. 226(2)(c) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2), an adjudicator may, in relation to a matter referred to adjudication, award interest in the case of grievances involving termination at a rate and for a period that the Board considers appropriate. In the context of the long period that the grievor was deprived of her previous salary, it is appropriate to award interest on the amounts owed for lost salary and performance pay, after mitigation is deducted. The adequacy of the grievor’s mitigation efforts was not contested by the employer.\n\nAggravated and punitive damages are different plants that grow in the same soil — the employer’s egregious conduct. Both apply only in exceptional instances (see Lyons, at para. 153). For both, care must be taken to ensure that the damages awarded are not inordinately high. These damages must also be proportionate in the circumstances of the case and in the context of the total damages award and the analogous case law (see Spruce Hollow, at para. 82 and Whiten, at para. 110). However, there are significant differences between these two types of damages.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-87", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 212–214", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Aggravated damages return a grievor to the position in which they would have been, but for the employer’s egregious conduct, by compensating the intangible harms caused by that conduct. In contrast, punitive damages do not compensate; they punish, denounce, and deter (see Whiten, at para. 43). From this point, I will use the term “punishment” to refer to all three of these purposes.\n\nThere is no longer a requirement to show an independent actionable wrong when claiming aggravated damages (see Fidler, at para. 55, Honda, at para. 59 and Spruce Hollow, at para. 121). When assessing whether aggravated damages apply, the focus is on the grievor. If the employment contract gave rise to reasonable expectations, which the employer’s egregious conduct violated, aggravated damages may apply. The first question to answer is whether the grievor’s alleged harms were foreseeably caused by the employer’s egregious conduct. The harms must exceed the foreseeable distress that follows a termination (see Spruce Hollow, at para. 79 and Honda, at paras. 50 to 57).\n\nThe harms that may be compensated by aggravated damages include mental distress, low self-esteem, loss of reputation and morale, hurt feelings, feelings of betrayal, and frustration (see Spruce Hollow, at para. 80, Mattalah, at para.164). Medical evidence can support an aggravated damages claim but is not required (see Spruce Hollow, at para. 109, Lyons, at para. 101).", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-88", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 215–216", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "When assessing whether punitive damages apply, the focus shifts to the employer (see Whiten, at para. 127). These damages serve to punish the employer’s egregious behaviour (see Spruce Hollow, at para. 83). If the awarded compensatory and aggravated damages already achieve this goal, then no rational purpose is served by a further award (see Prinzo, at para. 74, Whiten, at paras. 109, 110 and 123). For this reason, compensatory and aggravated damages are determined before punitive damages are considered. When determining the appropriate amount of punitive damages, I must be mindful of the so called “dimensions” of proportionality, as established in Whiten (at paras. 111 to 128), to ensure that any award is rationally proportionate to the goals that punitive damages serve.\n\nFor punitive damages, the requirement for an independent, actionable wrong remains (see Honda, at para. 68, Fidler, at para. 63, and Spruce Hollow, at para. 121). The independent actionable wrong is often found in conduct that breaches the expectation of good-faith dealings (see Honda, at para. 62). Such conduct, in employment settings and elsewhere, has been described as follows: · unfair or in bad faith by being, for example, untruthful, misleading, or unduly insensitive (see Honda, at para. 57); · malicious, oppressive, and high-handed (see Prinzo, at para. 74, quoting Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130); · untruthful, defamatory, and misleading (see Spruce Hollow, at paras. 80 and 124); · a marked departure from ordinary standards of decency (see Fidler, at para. 63); · high-handed, malicious, arbitrary, or highly reprehensible (see Whiten, at para. 94); and · malicious, harsh, reprehensible, and harmful (see Robitaille PSLRB, at para. 344).", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-89", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 217–219", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Accordingly, these are the questions to consider when evaluating aggravated damages: · Was the employer’s conduct egregious? · If so, what, if any, are the foreseeable harms caused by the egregious conduct? · Are the harms greater than the foreseeable distress of a termination? · If so, what is an appropriate amount of aggravated damages?\n\nThese are the questions to consider when evaluating punitive damages: · Does an independent actionable wrong warrant punishment? · Are compensatory and aggravated damages sufficient as punishment? · If not, what further damages are appropriate? · Is the overall amount of damages appropriate, reasonable, and rational?\n\nAll employees have a reasonable expectation of fairness and good faith in discipline. This expectation is especially relevant, and would reasonably be heightened, in the context of a large public service employer that has an investigative and adjudicative function. Prior to discipline, a properly conducted disciplinary process would have involved these steps: fairly determining the facts of the incident for which discipline was contemplated, clear and timely misconduct allegations, and a meaningful chance to respond to those allegations. Only after these basic components of due process were completed would the employer have been able to contemplate appropriate discipline, had misconduct occurred. None of these steps were taken.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-90", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 220–221", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The disciplinary process was profoundly untimely, both for the allegation that the employer relies on and for the other allegation cited in the termination letter. While the CARM allegations and the concerns about untimely assignment completion are irrelevant for assessing misconduct, as they were not relied on, they are relevant to the question of whether bad faith occurred in how the disciplinary process was handled overall.\n\nThe explanation provided by Mr. McRoberts for waiting until 2016 to begin the disciplinary process was that this work could not be done until the company’s file was closed. This does not align well with the facts. When the grievor was sent home based on events that took place involving CARM, no reference was made to the company’s file. At this point, at a minimum, any employer concerns about the disarray in which the grievor had left her file would have already crystalized. It is not at all clear why these concerns were not mentioned before she was sent home and were not investigated promptly. According to Mr. McRoberts’ testimony, Mr. Wex, who left the CBSA in September 2015, asked him to prepare a report on the grievor’s performance. BMCI was not retained to prepare a report until late January or early February 2016, which was over 10 months after the grievor was sent home and five months after the departure of Mr. Wex.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-91", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "para 222", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Any misconduct that the grievor committed on the company’s file would have ceased in January 2015, when she went to CARM and left her role on the company’s file. By the time she was sent home on leave with pay in April 2015, the employer either would have or could have been aware that more than 3 months’ worth of retroactive duties in the company’s file could not be collected. Despite this, the company’s file was never mentioned at the April 2015 meeting. On the untimely completion of assignments, 26 of the 36 incidents discussed in the chronology of overdue tasks related to the 2013-2014 fiscal year, but the grievor’s PMA for the 2013-2014 fiscal year does not mention concerns with overdue tasks. For both the company’s file and the 2 withdrawn allegations in the termination letter, the grievor did not receive notice of any allegations until April 19, 2016, over 15 months after her work on the company’s file ceased and almost 12 months after the employer first brought to her attention the fact that it had unspecified concerns about a CARM meeting on April 8, 2015. All of this is of concern; it appears that the employer reached back in time to amass multiple allegations, without attention to whether the allegations were timely or fair. This is not consistent with good faith discipline.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-92", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 223–225", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "No plausible explanation accounts for these delays. The employer promised to share its allegations in the disciplinary process by October 2015 but did not provide them until many months later. The effect of this delay on the grievor was oppressive and harmful. Nothing in the evidence before me allows me to conclude that the employer had even formulated allegations in October, which was more than six months after the grievor had been sent home. Again, this is of deep concern and suggests reasons other than bona fide discipline for removing the grievor from the workplace. It was also callously and reprehensibly insensitive to the grievor, professionally and personally, and represents a departure from the ordinary standards of decency. This was both unfair and high-handed.\n\nOf even greater concern is the failure to investigate the allegations that eventually were brought forward. The failure is compounded in that the person leading the disciplinary process was directly implicated in the company’s file in much the same way as the grievor — as a responsible executive at the time of the events, but whose oversight and override exceeded the grievor’s. Further, almost all the losses incurred happened after she had left, and Mr. McRoberts was in charge.\n\nDespite this, Mr. McRoberts selected and briefed Mr. Séguin. This allowed him to outline a foregone conclusion of culpability and to raise the ultimately unfounded bullying and harassment allegations and his bizarre reference to the grievor’s financial independence. Mr. McRoberts chose the documents but notably did not include her notes or her purportedly disarrayed file on which he blamed the delays that occurred after she left the workplace. These actions can be characterized as high-handed.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-93", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "para 226", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Another concern with the McRoberts Report is the use of Mr. Bonnell (the CBSA employee who investigated the ultimately unfounded harassment allegations against the grievor) as a witness. Mr. Bonnell had no involvement in the company’s file, CARM, or the assessment of the grievor’s performance. The only issues he could have provided information on were those related to the harassment allegations, the investigation of which was still on going at the time Mr. Séguin was completing the McRoberts Report. In this context, it is difficult to understand what purpose Mr. Bonnell’s testimony could have served, or why it was included in the process leading up to the McRoberts Report. The possibility exists, however, that the inclusion of a witness whose only connection to the grievor was through the ultimately unfounded harassment investigation unfairly coloured the assessment of the grievor’s performance (even if this was not Mr. Bonnell’s intention). Notably, no witness statements were entered into evidence, nor do any appear to have been attached to the final version of the McRoberts Report. All of the witnesses for the McRoberts Report were proposed by Mr. McRoberts.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-94", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 227–230", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At multiple points, the McRoberts Report is misleading, even with respect to the attachments that it references. For example, it quotes Ms. Gilbert’s email, which mentioned that Mr. Pezoulas stated that the grievor wanted to avoid the July 2013 meeting with the company. It then quotes the grievor’s July 3, 2013, email reply at length but omits her plausible explanation for the appearance of avoidance, as follows: … I will speak to Glenn [the company’s lawyer] tomorrow at 4:30 PM, from the SRS, to firm up details of the meeting. Dino misunderstood; I was not trying to avoid the meeting. I did say that I was hopeful that we could just have a phone call but once Glenn indicated that he wanted to involve the owner and a “cheese expert”, I agreed that a face-to-face meeting. [sic] …\n\nThe McRoberts Report goes on to state that a face-to-face meeting was requested on July 11, 2013. The email just quoted makes it clear that at least some version of this request must have come earlier.\n\nAnother example of a misleading statement in the McRoberts Report is that it vaguely references competing priorities, which leaves it open to the reader to conclude that the grievor was both responsible for, and not properly managing, competing priorities. The attachment to the report makes it clear that the competing priorities referenced occurred at the CBSA’s lab.\n\nThe fact-finding portion of the McRoberts Report ignored directly relevant evidence and facts, most notably in failing to hear from the grievor or look at her notes. This was unfair. This process was not an investigation; it drove toward a predetermined conclusion, based on a rush to judgment. This is bad faith.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-95", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 231–232", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Despite these flaws, many of which are obvious to even a casual reader, Mr. Ossowski relied on the McRoberts Report, which demonstrated little respect for fair process and no discernible interest in the actual causes of the millions of dollars of unrecoverable duties.\n\nGiven Mr. McRoberts’ testimony that he had “insisted”, with Mr. Wex, on hiring an arm’s-length, independent third party, it might have been possible to conclude that Mr. Ossowski assumed that based on reports of these conversations, there had indeed been an independent investigation, but for the fact that Mr. McRoberts is named as the sole author. This alone should have been cause for concern, given Mr. McRoberts’ role in the company’s file. This fact does not appear to have troubled Mr. Ossowski. When asked why he had not a spoken to the grievor before terminating her employment, as requested, Mr. Ossowski candidly, and without hesitation, answered that whatever she might have said, he still would have preferred Mr. McRoberts’ version of events to hers. To the extent that he knew that their versions might differ, he said that he preferred Mr. McRoberts’ version, even without having heard her version of the events. This is the very definition of bias and prejudgment.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-96", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 233–234", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "A failure to make reasonable, good faith efforts to ascertain the facts surrounding misconduct allegations would be problematic in any disciplinary process. It is particularly alarming in the context of what the employer describes as a multi-million-dollar liability. While the reasons for the failure to investigate remain unclear, it is clear that the employer’s choices were well suited to shielding those other than the grievor and poorly suited to determining the actual reasons for the timeline in the company’s file. These reasons remained opaque even after 11 hearing days.\n\nAt the hearing, Mr. McRoberts continued to refer to the McRoberts Report as an investigation and to Mr. Séguin as an investigator, even while he acknowledged that he knew this was inaccurate. These references cannot be construed as other than deliberate, if flimsy, camouflages for what truly occurred; they are lies. Mr. Ossowski’s testimony reflected the same inaccurate terms, and while their inaccuracy did not originate with him, the careless and negligent way he adopted them, without respect for the reality of the flawed termination process or the impact on the grievor, is of deep concern. The employer deceitfully disguised its failure to conduct a proper investigation, to give it the appearance of due process. This is bad faith.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-97", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 235–236", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Further, although not a determining factor, there is a troubling kitchen-sink flavour to the allegations that were initially piled up against the grievor only to later be abandoned or withdrawn. It must be clearly stated that merely withdrawing grounds for discipline is not, by itself, evidence of bad faith in the context of a properly conducted disciplinary process. But in this case, the unfounded grounds were only nominally abandoned or withdrawn. Mr. Ossowski testified that many of the unfounded grounds factored into the termination decision, even though the harassment allegations were known to be unfounded by the time the decision was made to terminate the grievor.\n\nIt is not acceptable to simultaneously set aside an allegation and continue to rely on it through innuendo. At the hearing, Mr. Ossowski characterized the grievor as distrusted, feared, uncooperative, and difficult. Had he stopped there, this would merely have been an opinion. But he did not stop there. He framed these characterizations as ongoing justifications for termination. At that point, the characterizations shifted from opinions to baseless personal attacks. This is bad faith.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-98", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 237–238", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The testimonies advanced by both Mr. McRoberts and Mr. Ossowski referenced the grievor making deliberate acts against the employer’s interest. Mr. Ossowski said that it would be reasonable to conclude that the lost duties were a deliberate act. Mr. McRoberts said that the grievor had engaged in “something like sabotage”. The only support he offered were his vague musings that she was not “on the same page” as him and that she did not “mesh”. This is not sufficient support for a sabotage allegation. Ms. Leblanc indicated that she and the grievor often ended up in “personal venting sessions” in their bilats. While I do not doubt her sincerity, this is insufficient as evidence of deliberate lack of care or sabotage. Venting to a subordinate employee may well be inappropriate, depending on the tone and content, but it does not prove intent to harm. The leap from not being on the same page or a failure to mesh to sabotage is considerable and demonstrates a rush to judgment.\n\nIn all, the employer’s egregious conduct in this matter consisted of bad faith, including its failures to engage in a timely or procedurally fair disciplinary process and to investigate (failures which the employer attempted to conceal), its rush to judgment, its reliance on unfounded allegations and its unsupported allegations of bad faith against the grievor.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-99", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 239–240", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor had a reasonable expectation that as a public service employee, her performance would be assessed fairly, and that if the employer contemplated discipline, it would do so in good faith, transparently and honestly, with respect for due process. None of these expectations were fulfilled. The grievor detailed the impacts of the employer’s egregious conduct in her testimony, which include the distress that drove her to seek counselling when she was on leave with pay (which the employer did not challenge) and her continuing difficulties with professional confidence, with second-guessing herself, and with trusting others.\n\nThe grievor testified that she felt completely blindsided by the events that occurred during the entire period at issue, starting with being sent home in April 2014. Like many executives, much of her life, including her social circle, had focussed on her work. She felt isolated and demoralized. She needed professional help to get through this extremely dark time. She continues to experience difficulties with self-confidence at her new job. She referenced an unreasonable level of paranoia. I did not understand that she used that word in a clinical sense, but rather, I understood that she referred to a constant and pervasive insecurity and fearfulness.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-100", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 241–242", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "These deep and long-lasting impacts are directly linked to the lack of fairness in her unreasonably protracted disciplinary process and the baseless accusations, including accusations of bad faith, made against her. She has also experienced a sense of loss. Her CBSA work mattered deeply to her. Again, this is consistent with her executive role. She is now unlikely to be able to attain her long-fostered goals and ambitions because “the runway is too short”. Although these impacts were not supported by medical evidence, they also were not challenged.\n\nThese impacts were not the normal consequences of a termination. They are connected to the egregious way in which the grievor was treated rather than to what would be expected following a fair disciplinary investigation or a termination. The grievor had a reasonable expectation that any disciplinary action would be conducted fairly and, at a minimum, be conducted in good faith. The employer’s breaches of this expectation were marked. The paranoia and lack of trust that the grievor describes was a foreseeable consequence of the breaches of fairness and trust committed by her employer. During the disciplinary process, the employer displayed a callous disregard for the impact of its actions on her. This is particularly true given the startling length of the flawed process. For almost three years, she was left at home, wondering what would become of her career and reputation. To the end, she held on to a hope that ultimately, the CBSA would act fairly.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-101", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 243–245", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The repeated, knowingly incorrect use of misleading terms like “investigator”, “investigation report”, “investigation methodology”, “arm’s length”, and “independent third party” aggravated the wrong done to the grievor through the failure to investigate. The banality conferred by repetition may have made these falsehoods more palatable to those fabricating them, but it did not transform them into truths. However, these repetitions, which began during the disciplinary process and continued at the hearing before the Board many years later, can be reasonably assumed to have exacerbated the continuing harms experienced by the grievor. Again, these harms are consequences of the employer’s callous bad faith, rather than being the foreseeable consequences of a fairly conducted disciplinary process or termination.\n\nBecause aggravated damages compensate intangible suffering, their calculation is an inexact science. Referring to previous cases is useful when considering the amount of the damages. Among the aggravated-damages cases submitted by the parties, Mattalah and Lyons are most relevant as they were employment cases in the federal public service. In Lyons, the Board noted that recent cases have found that a typical range for these damages, when unsupported by medical evidence, is $25 000 to $35 000, although higher and lower awards have been made (para. 136).\n\nIn Mattalah, aggravated damages of $20 000 applied in the context of an unfairly imposed performance plan that led to a lack of confidence, hurt feelings, low self-esteem, humiliation, stress, anxiety, and a feeling of betrayal (para. 164). These harms were experienced in the context of a lost posting, rather than a termination. In this case, the elements of bad faith are similar, but the harms are more severe.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-102", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 246–248", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In Lyons, the grievor received $135 000 in aggravated damages for significant, ongoing psychological harm related in part to a flawed disciplinary process. As in Lyons, some of the grievor’s psychological harm in this case relates to the loss of employment for which she had spent years developing specialized skills and knowledge. However, the claim in Lyons was supported by medical evidence and involved more extreme harms than what the grievor experienced, including long-term serious harm to both physical and psychological health.\n\nGiven the extent of the disregard for fair process in this case, it was foreseeable that the resulting damage would be deep. The grievor’s resilience, despite these harms, in finding alternate employment and getting on with her working life does not mean that these harms have disappeared. From her testimony, it was clear that even 8 years after the employer’s flawed disciplinary process started, the harms still affect her, personally and professionally. An award at the high end of the typical range is indicated. The appropriate amount of aggravated damages is $35 000.\n\nThe employer’s bad faith in the disciplinary process constitutes an independent actionable wrong. When considering whether punitive damages are necessary to punish the employer, I considered the Whiten proportionality “dimensions”, as follows: 1) the blameworthiness of the defendant’s conduct; 2) the plaintiff’s vulnerability; 3) the harm of the conduct to the plaintiff; 4) the need for deterrence; 5) the unjust enrichment for the defendant; and 6) the amount of other damage awards for the same misconduct (see Whiten, at paras. 112 to 126, Spruce Hollow, at para. 122).", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-103", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "para 249", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The blameworthiness of the employer’s conduct is clear, following the principles in Whiten. Bad faith, deceit, and reliance on baseless and withdrawn allegations make a sham of just-cause discipline and expectations of fairness and decency. The employer persisted in this course of conduct over the three years of the disciplinary process, and many elements of its bad faith were evident at the hearing in the continued references to a non-existent investigation process. The grievor’s vulnerability is also clear. For the three years during which she was at home, she was completely subject to the employer’s continued pretense that it was engaging in an appropriate disciplinary procedure. As a non-unionized public service employee receiving full pay, she had no recourse to the grievance process until she was disciplined. The employer held her working life in its hands and treated it recklessly, without respect for due process or ordinary standards of decency, which caused her lasting harm. Its behaviour deserves denunciation and punishment, and it should be deterred from repeating that behaviour.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-104", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 250–251", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Although the employer received no direct financial benefit from its behaviour, the McRoberts Report omits Mr. McRoberts’ role and responsibilities on the company’s file, despite his having had “not the most pleasant meeting” of his career in the wake of the file’s completion. His potential responsibility or culpability is entirely sidestepped in the McRoberts Report. This is important. Not only was the McRoberts Report a failure of due process, but also, it provided a direct benefit to Mr. McRoberts (and possibly others) by erasing his accountability and diverting attention from his role in the timing of the verification decision. This provided him with a benefit akin to unjust enrichment.\n\nIt is not contested that the grievor fulfilled her duty to mitigate her losses promptly. Her new job is less well paid than her previous role, but the salary gap is not huge. Her new employment is coextensive with most of the reinstatement period; compensatory damages will be much reduced by virtue of her efforts and considerable resilience, despite how the employer’s bad-faith dismissal process compromised her job-search abilities. Accordingly, the compensatory damages alone will be relatively modest, given what they might have been, and are unlikely to have a punitive impact. This impact is the rational purpose that punitive damages can serve.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-105", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 252–253", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Are the additional $35 000 in aggravated damages, when added to the compensatory damages, sufficient to deter, denounce, and punish the employer? The deterrent purpose of punitive damages has been compared to a fine, (see Lyons, at para. 156) and as such, must amount to more than a mere licensing fee for an employer’s bad faith. The employer was content to delay starting its disciplinary process until the grievor had been on leave for almost a year, at a cost of over $100 000 in salary. These salary costs continued to accrue and amounted to over $300 000 as the employer made its slow march toward a predetermined conclusion, but they did not deter it in its chosen path of bad faith. Further, no evidence suggests that the possibility that the loss of $26 000 000 of retroactive duties could have been avoided or reduced motivated the employer to properly investigate the overall handling of the company’s file. The apparent licensing fee that the CBSA was prepared to pay to engage in an extended bad-faith disciplinary process was very costly.\n\nFor these reasons, it is unlikely that the combined compensatory and aggravated damages will be sufficient as deterrence.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-106", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 254–256", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Robitaille PSLRB is directly relevant, given the investigation launched without verifying the facts, the reliance on unproven allegations, the employer’s attempt to avoid accountability, and the findings of breaches of transparency, diligence, prudence, and impartiality, which are similar in this case. However, the Robitaille PSLRB decision is almost 15 years old, and the grievor in that case was disciplined, not terminated. The grievor in this case was placed in more precarious circumstances by the employer’s egregious conduct. The value of money has been considerably affected by inflation in the intervening years. This all must be considered when assessing whether the same award ($50 000) could still serve a punitive purpose.\n\nLyons is a more recent decision. As in Lyons, in which $75 000 was awarded in punitive damages, the employer’s reprehensible approach to the disciplinary process in this case was conscious and deliberate. Its conduct shielded those whose conduct might otherwise have been scrutinized. Most importantly, as in Lyons, the employer knew that it was making false statements about the disciplinary process. Although this employer’s approach to the disciplinary process was perhaps somewhat less brazen, the flaws in both processes are similar in their falsified nature.\n\nIn arriving at the appropriate sum of punitive damages, I also considered the deliberate, callous, sustained, and bad-faith nature of the employer’s conduct in terminating the grievor. A punitive award at the higher end of the range is appropriate. The grievor is awarded $75 000 in punitive damages.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-107", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 257–266", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The resulting overall amount of damages reasonably reflects the minimum amount necessary to punish, denounce, and deter repetition of the employer’s bad faith. Given the grievor’s multiyear ordeal, her financial losses, and the lasting impacts on her life and her career, it does not unfairly enrich her.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe grievance is allowed.\n\nTabs 1 to 8, 10, 11, 13, and 14 of the “Employer Book of Documents” (Exhibit E-1) and tabs 14 and 16 of the “Grievor’s Book of Documents” (Exhibit G-1) and Exhibits E-3 and G-3, are ordered sealed. Further, in accordance with the sealing and confidentiality order, redactions were made at tabs 12 and 15 of Exhibit E-1 and in Exhibit E-2.\n\nThe grievor is retroactively reinstated to her previous occupational group and level as of the date of her termination, with full salary, and with all other employment-related compensation (including vacation and performance-based pay), and all employment benefits, including all dental, vision, and extended health benefits. Her banked sick leave is restored.\n\nAny employment income received from other sources after the date of the grievor’s termination will be deducted from the salary owed to her.\n\nPerformance-based pay will be based on performance ratings of “surpassed” for 50% of the retroactive period and “succeeds” for 50% of the retroactive period.\n\nThe grievor will be compensated for any out-of-pocket expenses for the buyback of pensionable time post-termination, which are not otherwise refunded to her in the process of her reinstatement.\n\nThe employer will pay the grievor aggravated damages in the amount of $35 000.\n\nThe employer will pay the grievor punitive damages in the amount of $75 000.", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521231-108", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 115", - "act_short": "Kline", - "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", - "marginal_note": "paras 267–268", - "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Interest on the amounts detailed paragraphs 261 to 264 is to be calculated as set out in the Federal Courts Act (R.S.C., 1985, c. F-7) at the pre-judgement rate to the date of these reasons. The post-judgement rate shall apply after that and shall also be awarded on the amounts for aggravated and punitive damages.\n\nThe Board remains seized of this matter for 120 days, to deal with issues arising from the issuance of this order. August 16, 2024. Edith Bramwell, a panel of the Federal Public Sector Labour Relations and Employment Board", - "current_to": "2024-08-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" - }, - { - "id": "fpslreb-521195-1", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 1–3", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Pedro Sousa Dias (“the grievor”) is a border services officer, classified at the FB-03 group and level, working for the Canada Border Services Agency (“CBSA” or “the employer”) at its Lansdowne, Ontario, port of entry. On December 30, 2021, he referred two grievances to the Federal Public Sector Labour Relations and Employment Board (“the Board”) for adjudication under both ss. 209(1)(b) and (c)(i) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”).\n\nThis case arose out of events that began in March 2020 as the COVID-19 pandemic began to manifest in this part of the world. All workplaces were struggling to cope with the unprecedented global public health crisis. The federal government sent office workers home, but the need to provide critical services required most border services officers to remain in the workplace, with some exceptions. Little was known at the time about the COVID-19 virus. The employer began to develop guidance for management for dealing with exceptional circumstances, and it implemented several measures to cope with the situation.\n\nOne early measure was to approve 6990 leave (leave with pay for other reasons), which was a discretionary leave available under the collective agreement between the Treasury Board and the Public Service Alliance of Canada (“the bargaining agent”) that expired on June 20, 2018 (“the collective agreement”).", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-2", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 4–5", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In the very early days of the pandemic, the employer approved that leave based only on employees’ verbal attestations that they had consulted their doctors or public health professionals and that they, or the people with whom they cohabited, were medically vulnerable to the COVID-19 virus. As set out in the employer’s COVID-19 capsule entitled “Exploring flexibility for critical workers if you or someone you live with is vulnerable” (“the capsule”): … a) All employees providing critical services who put in a request for modified or at home duties must first contact the Public Health Authority or a medical professional about their circumstances and medical situation. Given the pressures on the health network, Management will only request medical certificates in exceptional circumstances. Otherwise, a verbal declaration that the employee has consulted their doctor or a public health nurse will suffice.… …\n\nIn March 2020, the grievor experienced a brief flu-like illness as a result of which public health authorities advised him to isolate. On March 31, 2020, he was approved for four days of 6990 leave with no need to provide a medical certificate.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-3", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "para 6", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "He then continued working onsite for several months but became increasingly concerned about workplace health-and-safety issues that he felt posed a risk to him and, therefore, to his wife who he understood to be at risk of a severe health outcome or death should she contract COVID-19 according to Health Canada guidelines. Accordingly, on June 3, 2020, he requested 6990 leave, and on June 4, 2020, his request was approved, effective June 5, 2020, as follows: … In looking at your request for an accommodation, due to the fact that your wife is considered higher risk for severe illness should she contract COVID-19, management’s questions and inquiries in relation to your situation is part of the accommodation process. We are attempting to have a better understanding about the particulars of your situation in order to determine if there is meaningful work available in the workplace that meet your accommodation needs. This process is a collaborative one, and I am appreciative of the information you have shared. In evaluating your request, based on the information provided, management is in support of offering you Leave with Pay for Other Reasons, effective June 5, 2020 with an ongoing review. I will connect with you via email on a weekly basis to determine extensions of this leave for the following week. Management is continually reviewing the operational requirements and the requests for Leave with Pay for Other Reasons. As circumstances change, you may asked to return to work given your role as an officer who provides critical services. Your flexibility and continued commitment to doing your part to safeguard Canadians is greatly appreciated. … [Sic throughout]", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-4", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 7–8", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On or about June 25, 2020, the employer began to review the situations of the nine employees, of which the grievor was one, who had been approved for 6990 leave based on their verbal attestations. The review was to determine, in each case, if the leave was still required, if any changes were needed, or if the leave should be discontinued. In a message to management, the purpose of the review was explained as follows: … In the early days of COVID-19 (March 2020), there was little expert health information available and minimal public health guidance for workplaces such as the CBSA. Consequently, at that time, the Agency was still developing its full scale occupational health and safety (OHS) response. A key part of our early response was approval for the broad used of leave with pay for other reasons as a means to help ensure the safety of our employees, their families, respective dependants, and the public. Since those early days, there have been significant advances in terms of expert health information, guidance from public health, and the implementation of numerous OHS measures within our workplaces. In order to ensure that the Agency is well positioned for the next stage of COVID-19 response, appropriately implement business resumption measures, continue to prioritize employee health and safety requirements, and manage CBSA resources effectively, it is important that the Agency fully review the use of leave with pay for other reasons cases and update its use to reflect the current conditions and those anticipated in the coming months. … [Sic throughout] [Emphasis in the original]\n\nThe employer asked for signed attestations and medical information via a medical questionnaire that employees were asked to take to their doctors to be completed.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-5", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 9–12", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Candace Ricci, an administrative superintendent at Lansdowne at the time, testified before the Board. She was responsible for carrying out the review process. A regional review committee had been struck to review the leaves. A subcommittee prepared the files, conducted preliminary reviews, and made recommendations.\n\nInitially, the grievor was one of three employees who did not wish to have their medical questionnaires completed, but ultimately, the employer received eight completed questionnaires. One employee, whose specialist would not complete the questionnaire, discussed the matter with Ms. Ricci, who resolved it by suggesting that he have his family doctor complete it. The grievor was the only employee who did not provide a completed questionnaire.\n\nMs. Ricci began each review by meeting with the employee, either in person or by phone. She met with the grievor by phone on August 12, 2020. He advised that he disagreed with the employer’s approach. On August 28, 2020, he confirmed in an email that he had already attested to his wife’s medical vulnerability (and did so again in that email) but that he would not have the requested medical questionnaire completed.\n\nOn September 9, 2020, the regional review committee reviewed the grievor’s situation and determined that it required answers to two questions and the completion of the written attestation and the medical questionnaire. The subcommittee recommended that he be removed from 6990 leave and that he be assigned to telework as an interim measure, to give him time to obtain and provide the required medical information.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-6", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 13–18", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On September 11 and 21, the employer again asked the grievor to provide the requested information. He answered the two questions but did not provide the written attestation or a completed medical questionnaire. He remained on 6990 leave until September 27, 2020.\n\nThe employer had been working on a telework arrangement for the nine employees on 6990 leave. On September 28, 2020, they all began teleworking on the Border Watch Line. Also on September 28, 2020, the employer sent the grievor the following: … Today was the deadline for the return of the medical questionnaire, and I have not received it. The Regional Review will be taking place next week, and in order to substantiate your request for either 6990 leave or accommodation in the form of telework due to living with a person who is at high risk for illness due to COVID 19, this is required to be completed. …\n\nOn September 30 and October 2, 2020, the employer asked again for the information.\n\nOn October 7, 2020, there was another committee review, this time of the grievor’s continued telework, as he was no longer on 6990 leave. On the same day, the employer asked him again to complete the attestation form and the medical questionnaire.\n\nOn October 20, 2020, the employer sent its final request and asked to have the information by November 18, 2020, failing which it would no longer be able to support the grievor’s telework arrangement. Despite this, further requests were sent to the grievor on October 23 and November 13 and 23, 2020.\n\nFinally, on February 4, 2021, the employer terminated the grievor’s telework assignment effective February 12, 2021, but advised him that if he provided the requested documentation, it would revisit its decision.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-7", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 19–23", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "This is what the grievor grieved — the employer ended his telework assignment such that he was forced to use several types of earned leave until he could return to regular duties, which he felt he could do only once he and his wife were vaccinated.\n\nHe argued that the termination of his telework assignment amounted to what felt like a termination of employment because it had no end date, given the unknown future of the pandemic, or that it was a suspension that forced him to use his earned leave, which he characterized as a financial penalty.\n\nThe employer objected to the Board hearing these grievances. It submitted that the Board is without jurisdiction as these grievances cannot be adjudicated under either ss. 209(1)(b) or (c)(i) as they do not relate to any of the topics outlined in those sections.\n\nSection 209(1)(b) provides that a grievor may refer to adjudication a grievance related to a disciplinary action resulting in termination, demotion, suspension, or financial penalty. The employer stated that no disciplinary action was imposed on the grievor; that he was neither terminated, demoted, suspended, nor subject to a monetary penalty; and that the grievances, on their faces, show that no discipline was imposed.\n\nThe employer argued that the essence of the grievances was whether the grievor could continue either teleworking or being on 6990 leave. These matters come under s. 209(1)(a) of the Act and relate to the interpretation or application of the collective agreement. As such, he would need his bargaining agent’s support to refer these grievances to adjudication, as set out in s. 209(2) of the Act.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-8", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 24–28", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Unlike those cases in which an employee challenges an employer’s characterization of a termination as administrative and argues that it was disguised discipline, in this case, there was no discipline. It was about entitlements under the collective agreement or employer policy, none of which he could refer to adjudication without his bargaining agent’s support.\n\nThe employer also noted that the grievor had checked two of the grievance form boxes, indicating that the grievances were being referred to the Board not only under s. 209(1)(b) but also under s. 209(1)(c)(i). This was contradictory in that s. 209(1)(b) refers to disciplinary action, and s. 209(1)(c)(i) refers to actions other than disciplinary actions.\n\nThe employer submitted that as the Board’s jurisdiction is derived strictly from the Act, and as the subject of the grievances has nothing to do with discipline, the Board has no jurisdiction and should so decide based on the preliminary objection, without proceeding to hear evidence.\n\nThe grievor submitted that at the start of the COVID-19 pandemic, he was placed on 6990 leave with pay due to his wife’s health condition, which put her at risk of a severe health outcome or death due to COVID-19, according to Health Canada guidelines. Later, he was assigned to telework.\n\nIn his view, by first placing him on leave with pay and then on telework, the employer acknowledged that he was unable to return to onsite work. He had informed the employer that he would return to his normal duties as soon as he and his wife could be vaccinated against COVID-19.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-9", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 29–33", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "However, the employer directed him to have his wife see her doctor for a note that she was in a vulnerable group according to the Public Health Agency of Canada and to ask the doctor to assess the risk of viral transmission in the workplace, given the employer’s new protective measures that had been implemented in the workplace.\n\nThat direction was unreasonable. It did not make sense to have a doctor assess the workplace; normally, the health and safety committee would agree on a subject matter expert to do it. In this case, anybody who was on leave or teleworking was asked to go to their doctor. Every medical situation is different, and each doctor would have their own views of the efficacy of protective measures in the workplace.\n\nEven more concerning to the grievor was that in his view, the information to be taken to the doctor included inaccuracies; that is, the employer had already breached some of the new protective measures listed (the pod system) or was inconsistently enforcing them (wearing a mask).\n\nDue to these issues with the employer’s direction, the grievor felt that he was unable to comply, and as a result, the employer terminated the telework assignment and denied him the ability to continue working from home.\n\nThere was no reason to terminate his telework assignment other than to punish him for not following the direction. The employer lost an employee who was doing meaningful, productive work and doing a good job of it, according to his telework supervisors. In his view, there was nothing to be gained other than removing him from the workplace.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-10", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 34–38", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In January 2021, shortly before he received an ultimatum on February 4 to provide the information, followed by the February 12 termination of his telework assignment, the employer sent communications that advised that COVID-19 infection rates were increasing and that those working at home should continue to do so.\n\nAs well, had its direction complied with CBSA or Treasury Board policy, then the employer could argue that it was an administrative measure. However, it was not following the Treasury Board directive or policy, and what it requested was not a Treasury Board requirement. It did not have the authority to direct him to do it; therefore, its direction to him could not have been administrative, only punitive.\n\nHis telework assignment was not an accommodation. In his view, by its actions, the employer attempted to tie the pandemic-related health-and-safety concern to the accommodation process, to circumvent the Treasury Board directive.\n\nBy removing him from telework, while being fully aware that he could not return to the workplace, given his wife’s condition, the employer knowingly placed him in a situation of being unable to work.\n\nIn the grievor’s view, this constituted a suspension that resulted in a financial penalty as he was forced to use his earned leave. Further, as it had no end date, and given the uncertainty as to what the future held with respect to the pandemic, it felt like a termination. His employment was effectively, if temporarily, terminated.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-11", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "para 39", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Section 209 of the Act identifies the matters that an employee may refer to adjudication, as follows: 209 (1) An employee … may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to 209 (1) Après l’avoir porté jusqu’au dernier palier de la procédure applicable sans avoir obtenu satisfaction, le fonctionnaire […] peut renvoyer à l’arbitrage tout grief individuel portant sur : (a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award; a) soit l’interprétation ou l’application, à son égard, de toute disposition d’une convention collective ou d’une décision arbitrale; (b) a disciplinary action resulting in termination, demotion, suspension or financial penalty; b) soit une mesure disciplinaire entraînant le licenciement, la rétrogradation, la suspension ou une sanction pécuniaire; (c) in the case of an employee in the core public administration, c) soit, s’il est un fonctionnaire de l’administration publique centrale : (i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct ….", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-12", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 39–42", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "(i) la rétrogradation ou le licenciement imposé sous le régime soit de l’alinéa 12(1)d) de la Loi sur la gestion des finances publiques pour rendement insuffisant, soit de l’alinéa 12(1)e) de cette loi pour toute raison autre que l’insuffisance du rendement, un manquement à la discipline ou une inconduite, … […] (2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings. (2) Pour que le fonctionnaire puisse renvoyer à l’arbitrage un grief individuel du type visé à l’alinéa (1)a), il faut que son agent négociateur accepte de le représenter dans la procédure d’arbitrage. … […] [Emphasis added]\n\nThe grievance bearing Board file no. 566-02-44973 states as follows: “I grieve the termination of my telework assignment as a contravention of the Treasury Board’s direction and the Emergency Response Act regarding the covid19 [sic] pandemic.”\n\nThe grievance bearing Board file no. 566-02-44974 states: “I grieve the termination of my telework assignment as a contravention of the CBSA’s direction (capsule) regarding the covid19 [sic] pandemic.”\n\nAs noted earlier in this decision, each grievance was referred under both ss. 209(1)(b) and (c)(i) of the Act. However, at the hearing, the grievor clarified that he invoked s. 209(1)(b) only and argued that the termination of his telework assignment was disguised discipline.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-13", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 43–45", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer asked the Board to conclude that it lacks jurisdiction in this matter because the employer’s actions were administrative, not disciplinary. Therefore, the grievor could not challenge them under s. 209(1)(b) but only under s. 209(1)(a), and only with bargaining agent support. The employer submitted that that was clear on the faces of the grievances and that the Board could make that determination by simply confirming a few facts with the grievor, without the need to hear evidence.\n\nThe employer’s objection was compelling; however, the grievor was self-represented and had the onus to demonstrate that he had been subjected to a termination, suspension, or financial penalty, as he alleged. To ensure that he had every opportunity to make his case that his grievances were referable to adjudication under s. 209(1)(b), as alleged, I reserved my decision on the employer’s objection and heard the evidence.\n\nThe grievor did not make out his case. He was unable to demonstrate that there was any discipline, much less a termination, suspension, or financial penalty, as would be required for him to refer his grievances to adjudication under s. 209(1)(b). In Bergey v. Canada (Attorney General), 2017 FCA 30, the Federal Court of Appeal stated at paragraph 37 that “… distinguishing between a disciplinary and a non-disciplinary employer action requires consideration of both the employer’s actual (as opposed to stated) intentions in taking the action and of the impact of the action on the employee’s career” [emphasis in the original]. The employer’s evidence was that it required the grievor to provide medical information so that it could assess the ongoing need for his telework assignment or 6990 leave. Ultimately, it ended that assignment when he did not provide the information.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-14", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 46–48", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer’s stated intention in reassessing the situation of each employee who had earlier been approved for leave based on their attestations alone, with no medical information, included implementing business resumption measures and managing CBSA resources effectively. Approving leave that way in the early days of the pandemic was to safeguard the health and safety of its employees and their cohabitants, at a time when the CBSA was still developing its full-scale occupational health and safety response to the pandemic.\n\nAlthough I do not doubt that most employees would have assumed as much in any event, the documentary evidence sets out that it was also made clear to employees that telework assignments and 6990 leave were interim measures and that like all the measures taken in the early responses to the pandemic, they would evolve as the situation evolved. The CBSA’s measures evolved with advances in public health information and guidance, and with the implementation of numerous occupational health and safety measures in its workplaces. They were also consistent with the CBSA’s telework policy and its policy on the duty to accommodate.\n\nThe grievor criticized the employer’s requirement for further medical information because, in his view, it was not required by the Treasury Board and, therefore, could not be imposed on him. Or, as he put it: “I didn’t comply with the direction because they weren’t complying with policy and directives, therefore, they did not have the authority to make me do this.”", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-15", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 49–50", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "He disagreed with the questions on the medical questionnaire. He disagreed with the list of health-and-safety measures that the employer put on the medical questionnaire, as he felt that they were not all followed or enforced. He felt that he had twice attested to his wife’s condition and that he should not have to do it again. (However, I note that it was established at the hearing that although the grievor had twice attested in an email to his wife’s condition, he had never attested to having consulted a doctor or public health official, as the written attestation form required.)\n\nThe grievor relies on Christenson v. Deputy Head (Canada Border Services Agency), 2013 PSLRB 25, which upheld the grievances of three CBSA firearms trainers against their five-day suspensions for breaching a firearms policy. In that case, the adjudicator held that the text of the policy was unclear as to whether it applied to trainers and further that it had been applied inconsistently. No one had warned or directed the grievors that the policy applied to them, even when members of management knew that they were not following it.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-16", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 51–52", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In this case, the grievor was not unclear about the CBSA’s policies. Rather, he disagreed with them or felt that they were insufficiently enforced. In any event, all the grievor’s criticisms of and disagreements with the employer’s approach, on their own, have little significance. His opinions on these matters, while he is free to hold them, do not transform the employer’s actions into discipline against him. As the Federal Court stated in Canada (Attorney General) v. Frazee, 2007 FC 1176 at para. 21: “… the issue is not whether an employer’s action is ill-conceived or badly executed but, rather, whether it amounts to a form of discipline …”. Similarly, while the grievor spoke about a toxic workplace culture and a sense of retribution and reprisal among staff, in Frazee, the Federal Court also added that “… an employee’s feelings about being unfairly treated do not convert administrative action into discipline …” (at paragraph 21).\n\nThe grievor also relies on Grant v. Deputy Head (Canada Border Services Agency), 2016 PSLREB 37 (application for judicial review dismissed, Canada (Attorney General) v. Grant, 2017 FCA 10). In that decision, the Board allowed three grievances about the CBSA’s decision to suspend a grievor without pay, revoke her reliability status and then terminate her employment. It found that suspending the grievor without pay was punitive and that suspending her reliability status was a reaction to perceived misconduct, not to security concerns. The Board found that the grievor’s ultimate dismissal was out of proportion to the allegations of misconduct.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-17", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 53–54", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor claims that by ending his telework assignment the employer was intent on removing him from the workplace because he did not comply with the request for further medical information. In assessing the impact of the employer’s actions, the grievor claims that the employer failed to consider the productive telework he was doing, which contradicted any need for him to return to work in-person. Also, the grievor points to the fact that following the end of his telework assignment, in February 2021, he did not return to work until June 2021. In his view, this prolonged absence from work indicates an intent to punish and that this punitive effect outweighs any initial administrative intent on the employer’s part (see Grant, at para. 141; and Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70, upheld in Basra v. Canada (Attorney General), 2010 FCA 24).\n\nThe employer did not terminate the grievor’s employment. At all times, he remained employed with the CBSA. According to the grievor, the employer ended his telework assignment knowing he could not return to work and that this was a punishment and a suspension. The problem with the grievor’s argument is that the employer did not know that he could not return to work. This is precisely why the employer asked him to provide further medical information.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-18", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 55–56", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Instead of providing that information or returning to work, the grievor used other types of earned leave until he decided to return to regular duties. He has not demonstrated that the employer’s intent was other than what it stated (to implement business resumption measures and to manage CBSA resources effectively), or that it intended to punish or correct his behaviour by ending his telework assignment. Nor did the grievor establish that his period of leave after the end of his telework assignment was a consequence of the employer’s actions or intended as a financial penalty (see Green v. Deputy Head (Department of Indian Affairs and Northern Development), 2017 PSLREB 17 at paras. 344 to 349; and Rogers v. Canada (Revenue Agency), 2010 FCA 116 at paras. 13 to 21).\n\nTo the contrary, the employer showed considerable patience. For several months, it kept the grievor on 6990 leave and then on telework. During this time, he repeatedly refused to even attempt to do what was required to keep him on telework. He was then asked to return to onsite work. The grievor did not establish that there was any immediate adverse effect on him due to the employer’s actions throughout the entire process. This is also one of the indicia of discipline outlined in Frazee.", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521195-19", - "doc_type": "caselaw", - "act_code": "2024 FPSLREB 63", - "act_short": "Sousa Dias", - "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", - "marginal_note": "paras 57–61", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor could have challenged the issues that he asserts he felt strongly about concerning the employer’s response to the pandemic by filing a grievance and, with his bargaining agent’s support, referring it to adjudication under s. 209(1)(a). He chose not to even ask — he specified that the bargaining agent did not refuse to represent him in this matter; rather, he chose not to seek its support. If that is the case, then by making that choice, he put himself in the position of trying to make the argument that he was terminated, suspended, or subjected to a financial penalty.\n\nConsistent with the reasoning of numerous Board and court decisions, including Frazee, Sharaf v. Deputy Head (Public Health Agency of Canada), 2010 PSLRB 34, Rogers, Hood v. Canadian Food Inspection Agency, 2013 PSLRB 49, Ho v. Deputy Head (Department of National Defence), 2013 PSLRB 114, Theaker v. Deputy Head (Department of Justice), 2013 PSLRB 163, and Price v. National Film Board, 2021 FPSLREB 105, I have determined that the grievor was not subject to any disciplinary action, disguised or otherwise; therefore, I have no jurisdiction to adjudicate these grievances under s. 209(1)(b) of the Act.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nI declare that the Board is without jurisdiction to adjudicate these grievances.\n\nThe grievances are dismissed. May 13, 2024. Nancy Rosenberg, a panel of the Federal Public Sector Labour Relations and Employment Board", - "current_to": "2024-05-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" - }, - { - "id": "fpslreb-521082-1", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 1–4", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "This matter concerns three individual grievances filed by Larry Anderson, Harbir Boparai, and Ronald Broda (“the grievors”) on May 26 to 29, 2012.\n\nOn November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014‑84), creating the Public Service Labour Relations and Employment Board to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014‑84). Pursuant to s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.\n\nOn June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9), received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board, the Federal Public Sector Labour Relations and Employment Board Act and the Federal Public Sector Labour Relations Act.\n\nFor ease of reading, the term “Board” in this decision refers to the current Board and any of its predecessors.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-2", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 5–10", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At all material times, the grievors were border services officers classified at the FB-03 group and level and employed by the Canada Border Services Agency (“CBSA” or “the employer”).\n\nThe grievances are substantively the same. Each grievance alleges that the employer failed to grant the grievors their first pay increment on the appropriate date while they were employed as full-time indeterminate employees on a seasonal basis.\n\nThe collective agreement at issue in this matter was concluded on January 29, 2009, between the Treasury Board and the Public Service Alliance of Canada for the Border Services Group bargaining unit, and it expired on June 20, 2011 (“the collective agreement”).\n\nAs for the most part the facts were not in dispute, the parties agreed to proceed by way of written submissions.\n\nThe grievors take the position that the employer’s failure to grant their first pay increments on the anniversary dates of their first appointments violated the collective agreement, which states that for full-time and part-time employees, “[t]he pay increment period for employees at levels FB-1 to FB-8 is the anniversary date of such appointment.”\n\nThe employer denies that it violated the collective agreement. It argues that the collective agreement is silent on seasonal employees, and as such, it correctly followed the Treasury Board’s Directive on Terms and Conditions of Employment (“the Directive”) and the Treasury Board’s ARCHIVED - Pay increments (PSTCER sections 27 and 29 to 45) (“the Pay Increments Policy”) when it determined that the grievors were entitled to a pay increment after a period calculated to equate 12 months of actual work in their respective positions.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-3", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 11–17", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer did not raise any timeliness objection and agrees that the grievances were properly referred to adjudication.\n\nHowever, the employer raised a preliminary objection on the basis that the grievors have advanced new arguments that were not presented during the grievance process, which it argues is prohibited based on the Burchill principle (see Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.)).\n\nIn their reply submissions, the grievors argue that the nature of the grievances remain the same and therefore the Burchill principle does not apply.\n\nFor the reasons laid out in this decision, I conclude that the employer’s preliminary objection should be dismissed and that the grievances should be allowed.\n\nThe grievors were initially appointed in Victoria, British Columbia, as border services officers classified at the FB-03 group and level (“the Victoria positions”).\n\nMr. Anderson’s letter of appointment offered him a “… full-time indeterminate appointment on a seasonal basis …” effective May 1, 2010. It stated that he was required to work from May 1 to September 30 of every calendar year. It stated that he would be required to provide services in any of the CBSA’s West Coast and Yukon District locations and that his initial assignment would be at the Victoria or Sidney, British Columbia, location. It stated that he was subject to a 12-month probationary period that excluded any off-duty periods for seasonal employees. Finally, the letter stated that his employment was subject to the “Public Service Terms and Conditions of Employment Policy and Directives”.\n\nMr. Anderson worked in that position from May 1 to September 30, 2010.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-4", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 18–22", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Boparai and Mr. Broda each received the same appointment letter as did Mr. Anderson. The only difference was that their appointments were effective one year later, on May 1, 2011.\n\nThe grievors worked together at the Victoria or Sidney port in the CBSA’s West Coast and Yukon District from May 1 to September 30, 2011.\n\nOn August 16, 2011, certain employees at the CBSA’s Sidney and Victoria ports received a message about seasonal hours. It indicated that the CBSA’s Pacific Highway District might be able to offer separate seasonal contracts for the off-season.\n\nOn September 28, 2011, the employer circulated a link to a job opportunity advertisement for the appointment of indeterminate seasonal border services officers in its Pacific Highway District. The area of selection was open to “… employees of the CBSA providing front-line public protection services (e.g. Border Services Officer) and who occupy a position in the West Coast and Yukon District”.\n\nBetween September 27 and October 1, 2011, all three grievors responded to the advertisement.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-5", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 23–25", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On October 12, 2011, each grievor received a letter from the employer, informing them of their seasonal layoff and their entitlements while on off-season status. The letter included the following statement: … SUBJECT: SEASONAL LAYOFF The purpose of this letter is to advise you of your entitlements while in off-season status.… For purposes of establishing an entitlement to severance pay, vacation leave and statutory increments; a seasonal employee is deemed to have completed one year of continuous employment for each year of seasonal employment. However, the calculation of the severance payment, vacation leave, and statutory increments includes only those periods in which the employee was actually employed or was on vacation, sick or compensatory leave. … [Emphasis in the original]\n\nAlso on October 12, 2011, each grievor received an offer for a part-time indeterminate appointment on a seasonal basis effective October 13, 2011. The letter stated that they would be required to work 30 hours per week from October 1 to April 30 of every calendar year. The letter stated that they could be required to provide services at any of the CBSA’s Pacific Highway District locations and that their initial assignment was at the Port of Douglas in Surrey, B.C.\n\nThe grievors accepted the offers of employment and started in their seasonal positions in the CBSA’s Pacific Highway District on October 13, 2011 (“the Port of Douglas positions”).", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-6", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 26–27", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On November 17, 2011, Mr. Broda wrote to the employer, inquiring whether he would be subject to two separate probationary periods since he was subject to two separate seasonal contracts. The employer responded as follows: … Your probation is considered continuous and will be considered complete as of April 2012 (after 1 year). As you are considered “dual employment” all your leave entitlements are separate for each district. Leaves(s) [sic] earned during employment with WCY cannot be carried over to the separate period of employment with Pacific Highway District, and vice versa. …\n\nOn January 13, 2012, the employer emailed the following to Mr. Anderson, responding to his inquiry into his compensation concerns: … I will try to clarify what is a confusing situation. The “system” does not recognize your previous employment. You are employed by the Pac Hwy District, and your entitlements are based on that employment; there is no connection to your employment with Victoria. Although you are employed by the same organization, you are in a way employed in two separate jobs. While you are in the Pac Hwy District your “home” port is Pac Hwy District. When you return to Victoria, that is considered your home port. The two jobs run independent of each other. Each contract runs completely independent from the other, i.e. increments, leave credits. However, because your are employed by the same organization, anything to do with compensation and benefits, comes through one office. In order to keep the “two jobs” separate, two different PRI’s were utilized.… … [Sic throughout] [Emphasis in the original]", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-7", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 28–35", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On February 29, 2012, while the grievors were working in their Port of Douglas positions, they and other staff received an email from David Rizzo, Chief, Sidney/Northern Operations, and Nina Patel, Chief, Victoria Operations, advising them that the employer would convert the seasonal staff employed at that time in Victoria or Sidney to full-time indeterminate employment on a year-round basis if they wished. The grievors did.\n\nOn March 28, 2012, the grievors received a letter to advise them of a change to their “… hours of work from Indeterminate Seasonal to Indeterminate Full-time Year-round …” effective May 1, 2012.\n\nIn or around April, 2012, the grievors resigned from their Port of Douglas positions, effective April 30, 2012.\n\nOn May 1, 2012, the grievors returned to work in Victoria or Sidney but from then on as full-time, indeterminate, year-round border services officers.\n\nMr. Anderson received his first pay increment effective June 27, 2012.\n\nMr. Boparai and Mr. Broda received their first pay increments effective November 27, 2012.\n\nThe wording in all three grievances is identical, as follows, with the sole exception of the appointment date: … I have been continuously employed with Canada Border Services Agency since May 1, 2011 [or May 1, 2010, for Mr. Anderson] and the employer has not granted my pay increment. I grieve that the employer is not compensating me according to my collective agreement and any other CBSA and Treasury Board of Canada Secretariat Policies or Regulations that may apply. …\n\nAs a corrective measure, the grievors requested the following: “I request that I be afforded the pay and benefits to which I am entitled and any other corrective action appropriate in the circumstances, and that I be made whole.”", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-8", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "para 36", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As part of the documents jointly provided to the Board, two documents entitled “Grievance Hearing” outline the points raised during the grievance process meetings held on July 7 and 8, 2012. They are for the most part identical aside from the appointment date of Mr. Anderson, which is one year earlier than those of Mr. Boparai and Mr. Broda. Those documents provide the following: … Arguments - The griev[o]rs do not meet the criteria for dual employment. Management is claiming that the employees were working under dual employment. Dual employment refers to indeterminate employees who are on approved leave without pay (LWOP), and who accept a specified period employment with another organization (see attachment 1 Specified Period Appointments during Extended Period of Leave without Pay (Dual Employment) from the Public Service Staff Relations Act – PSSRA). These employees were not on LWOP; they are laid off at the end of season and are employed by the same organization. Dual employment has a distinct home position and a host position (see attachment 2 – Definitions under PSSRA). HR stated that while they are in PacHwy District their home port is PacHwy District and when they return to Victoria; that is considered their home port. How can one have two home ports? It defeats the criteria of dual employment. In this case Victoria should be the home port and PacHwy District would be the host port. Even if they are deemed to be on LWOP, section 9 of specified period appointment states appointments that occur during LWOP are included in the calculation of continuous employment and continuous service (see attachment 3, section nine of specified period appointments during extended periods of LWOP (dual employment)).", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-9", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "para 36", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In addition the policy also states that on return to indeterminate status of the home position, periods of employment that occurred during LWOP count for the purposes of continuous employment (see attachment 4 – section 10 of specified period appointments during extended period of LWOP (dual employment)). - The probation period is continuous therefore their service and employment should be considered continuous.… - The griev[o]rs are entitled to a pay increment upon their anniversary date, supported by various policies: the FB Collective Agreement (attachment 7), Treasury Board (TB) policy on pay increment 4.1 (attachment 8), TB Definitions (attachment 9) and TB directives on terms and conditions of employment part 5 (attachment 10). - As indeterminate seasonal employees, all periods they have worked would be included in the pay increment period, TB pay increment policy 4.13 (attachment 11). The griev[o]rs would like to reiterate the following: - The griev[o]rs have been continuously employed in the core public service since May 1, 2011 [or May 2010 for Mr. Anderson]. - They are employed by the same agency, in the same region, in the same classification and the same job. The only difference is the location. - They should not have two separate anniversary dates because of this. - They should have one anniversary date which would be from the appointment date in the initial letter of offer from WC&Y District. - The probationary period was considered continuous. - Various policies state that all periods of employment during LWOP count for continuous employment and continuous service. - Management is saying that they were employed in two separate positions.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-10", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 36–37", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "- Part 4.13 of the pay increment policy states all periods during which the employee performed the duties of the position are included in the calculation of the pay increment period. Therefore the time worked in both positions should be credited towards their pay increment and benefits towards service. - It is the union’s position that management is in contravention of appendix A of the CA and the following TB policies: specified period employment during extended LWOP, TB policy on pay increment, and the directive on terms and conditions of employment. Corrective Actions - We request the griev[o]rs be afforded the pay and benefits to which they are entitled and any other corrective action appropriate in the circumstances and that they be made whole by the following: - Their time worked at both locations is recognized as continuous employment and continuous service. - That this time be merged together and included toward their pay increment and other benefits towards length of service. - That they are compensated in back pay from the anniversary of when their first pay increment would be due. - That all annual leave earned at PacHwy District be paid out and that all sick leave earned is transferred to WC&Y District if it has not been already. … [Sic throughout] [Emphasis added]\n\nThe grievors maintain that the employer violated the collective agreement when it failed to grant them their first pay increments on the anniversary dates of their first appointments.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-11", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 38–42", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to the grievors, the Board’s fundamental task when interpreting a collective agreement is to ascertain the intent of the parties by looking first to the plain meaning of the language that they agreed to. The grievors refer to Brown and Beatty, Canadian Labour Arbitration, 5th ed. (“Brown and Beatty”), at paragraph 4:21, which is the leading text on labour arbitration.\n\nThe grievors argue that the Board has followed the approach set out in Brown and Beatty in innumerable cases, including those concerning the calculation of pay increment periods. They state that the applicable canons of interpretation were usefully summarized in Cruceru v. Treasury Board (Department of Justice), 2021 FPSLREB 30.\n\nAccording to the grievors, when the collective agreement language is read in conjunction with ancillary documents such as an employer’s internal policy, those ancillary documents are separate from and subordinate to the collective agreement unless they are incorporated into it by reference.\n\nThe grievors argue that this case turns on the interpretation of the Pay Notes provisions in Appendix A of the collective agreement (“the Pay Notes”), which apply to both full- and part-time employees and state that “[t]he pay increment period for employees at levels FB-1 to FB-8 is the anniversary date of such appointment.”\n\nThe grievors argue that the plain meaning of the Pay Notes requires granting pay increments on anniversary dates.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-12", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 43–44", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "They argue that the Board has previously described pay increments as a presumptive entitlement and as a collective agreement benefit that can be ousted only if based on clear language. They state that the parties to the collective agreement set out in clear terms that a pay increment is granted on the anniversary date of an employee’s appointment. Used in its normal, ordinary sense, the key term “anniversary date” in the collective agreement refers to a single, specified date occurring once each year. That meaning applies whenever anniversary dates are used to mark historical events, milestones in a relationship, or significant occasions. That is also congruent with the online Oxford Dictionary’s definition, which defines “anniversary” as “the date on which an event took place in a previous year.”\n\nThe grievors argue that based on a plain reading of the Pay Notes, the fact that they were seasonal employees, or that they were subject to two separate seasonal appointments, is entirely irrelevant. The collective agreement does not distinguish between full- and part-time employees or between employees working on a seasonal or year-round basis. The parties to the collective agreement must be presumed to have meant what they have said expressly — all employees in those positions receive pay increments on their anniversary dates.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-13", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 45–47", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievors highlight that the parties to the collective agreement chose to modify that general rule in specific circumstances, which they did expressly. For example, the general leave provisions in clause 33.02 specify that an extended leave without pay granted to an employee for reasons other than illness will interrupt a pay increment period. Clauses 38.01(g) and 40.01(g) go on to clarify that the interruption does not apply to those on maternity or parental leave without pay. Thus, the parties to the collective agreement clearly turned their minds to what periods should and should not count toward a pay increment, and they chose not to distinguish between employees working year-round and those working on a seasonal basis. In this case, none of the defined exceptions to the general pay increment rule apply; therefore, the grievors’ pay increment period is governed by the Pay Notes.\n\nThe grievors argue that they each received full-time indeterminate appointments on May 1; therefore, the anniversary date of their appointments is May 1 of the following year.\n\nIn terms of the Directive, the grievors argue that it applies throughout the core public administration, including to term, indeterminate, part-time, and seasonal employees. Both the Federal Court and the Board have found that the Directive is incorporated by reference into collective agreements (see Broekaert v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 90). However, the Directive is fully consistent with the interpretation that the grievors advanced.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-14", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 48–49", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "They point out that the Appendix to the Directive defines a “Pay increment period” as “… in respect of a position, the period between pay increments for the position as set out in the relevant collective agreement or terms and conditions of employment.” The Directive sets out an alternative method to calculate a pay increment period but only “[w]hen the relevant collective agreement is silent …”. The collective agreement in this case is not silent but rather clearly defines the pay increment period as being based on the anniversary date of the employee’s appointment; therefore, the alternative pay increment in the Directive does not apply.\n\nThe grievors argue that the purported justification that the employer put forward relies on an outdated policy. They argue that in addition to not being incorporated into the collective agreement, the employer’s Pay Increments Policy was not even in force by the time they received their appointments. They state that the Pay Increments Policy was a guide to the Public Service Terms and Conditions of Employment Regulations (“the regulations”), which was in force from 1993 until the Directive expressly replaced the regulations on April 1, 2009. While the Pay Increments Policy sets out clear and detailed pay increment rules applicable to seasonal employees, the Directive that replaced the regulations does not. Instead, the Directive introduced in 2009 defines a pay increment period by reference to the collective agreement language. Thus, the employer purports to rely on an outdated guide to the regulations that was the predecessor to the Directive. The Pay Increments Policy is not binding on the parties or applicable in this case.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-15", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 50–51", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievors maintain that the Board should follow its previous decision in Broekaert, which bears numerous similarities to this case. The issue in that case was whether casual employees were entitled to a pay increment after 12 months of employment. As in the present case, the binding language in Broekaert (in that case, found in the Terms and Conditions of Employment Policy) clearly stated that “… the pay increment period shall be 12 months …”. However, Mr. Broekaert’s employer tried to rely on its Pay Administration Volume, which stated that pay increment periods should be prorated based on hours actually worked.\n\nIn Broekaert, the Board interpreted the Terms and Conditions of Employment Policy in accordance with its plain meaning and found no binding authority that could override it. In particular, it rejected the submission of Mr. Broekaert’s employer that its Pay Administration Volume could take precedence over the collective agreement at issue. The grievors argue that the analysis in Broekaert is on all fours with their case. The parties are bound by the collective agreement and the Directive, which is incorporated into the agreement by reference. Those documents clearly define a pay increment period, which must be applied to the exclusion of other, non-binding documents.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-16", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 52–54", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to the grievors, the employer has essentially taken the position that the grievors’ pay increment period should be prorated based on the length of the season. If the employer is correct that the summer- and winter-seasonal appointments had separate, prorated pay increment periods, then summer-seasonal border services officers appointed effective May 1 would receive their first pay increment 26 months after the dates of their initial appointments. The grievors argue that it is inconceivable that the parties to the collective agreement contemplated that result when they agreed to peg the pay increment period, for all full- and part-time employees, to the “anniversary date” of their appointments, as the collective agreement states.\n\nThe grievors argue that the central issue in this case boils down to whether the key phrase “anniversary date” in the collective agreement means what it says. They submit that it must be given its normal and ordinary meaning. To the extent that the employer’s internal policies and manuals are inconsistent with that clear language, they should be disregarded. There is no binding language that suggests an alternate meaning — for the grievors, who were appointed on May 1, the “anniversary date of such appointment”, per the collective agreement, is May 1. As such, Mr. Anderson’s first pay increment should have been granted on May 1, 2011, while that of Mr. Boparai and Mr. Broda should have been granted on May 1, 2012.\n\nThe grievors also included arguments in their submissions as to why other policies and manuals were not applicable. However, they are not reproduced in this decision since the employer did not rely on them in its submissions.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-17", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 55–58", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer states that the grievors raised new arguments at adjudication that it did not have the opportunity to address during the grievance process. According to the employer, the grievors cannot raise new arguments at adjudication based on the principles enunciated in Burchill.\n\nThe employer highlights that during the grievance process, the grievors argued that their Port of Douglas employment should have counted toward the calculation of their pay increment periods for their Victoria positions. The employer states that it rejected this argument at each level of the grievance process on the basis that each grievor worked two separate positions, and that under the collective agreement scheme, each position was subject to its own, separate pay increment period.\n\nThe employer points out that the grievors no longer contest that they worked two separate positions or that their Port of Douglas employment should count toward the pay increment periods of their Victoria positions. Rather, the grievors now argue that pursuant to the Pay Notes, they were entitled to pay increments on the anniversaries of the dates of their appointments to the seasonal Victoria positions, regardless of whether they worked in the winter off-season. The employer argues that this is a novel argument, not previously raised in the grievance process and that the grievors have changed the nature of the grievances. As a result, it argues that the grievances should be dismissed.\n\nThe employer argues that should the Board determine that it has jurisdiction to render a decision on the merits of the grievances, it properly determined the grievors’ pay increment dates according to the scheme of the collective agreement.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-18", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 59–62", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer argues that the grievors were entitled to a pay increment only after a total of 12 months of actually performing the duties of the Victoria positions. The time they spent off-season from the Victoria positions did not count toward the calculation of their 12-month pay increment periods.\n\nThe employer argues that the grievors have mistakenly construed the Pay Notes, which is a broad statement that does not address the specific case of seasonal employees who work only part of the year. It states that neither the Pay Notes nor any other part of the collective agreement mentions seasonal employees with respect to determining pay increment dates.\n\nThe employer argues that when the collective agreement is silent on an issue pertaining to pay administration, the employer can then refer to the Directive. In this case, section 5.3 of the Directive expressly provides for determining pay increment periods in cases that are not contemplated by the collective agreement. It reads as follows: “When the relevant collective agreement is silent, the pay increment period is 12 months and is calculated in accordance with this Appendix.”\n\nThe employer argues that unlike the Pay Notes, the Directive refers to an increment “period”, and states that it is for a duration of “12 months”. It states that nothing in the wording of section 5.3 of the Directive requires that the 12 months comprising the pay increment period must be consecutive. The Directive also states that the increment period “is calculated”. The employer argues that this indicates that pay increments under that section are determined through calculation, not by an automatically occurring anniversary date from the date of appointment.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-19", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 63–65", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer states that it advised the grievors how their pay increment dates would be calculated in the layoff letters for their respective summer-seasonal Victoria positions. The letters stated this: … For purposes of establishing an entitlement to severance pay, vacation leave and statutory increments; a seasonal employee is deemed to have completed one year of continuous employment for each year of seasonal employment. However, the calculation of the severance payment, vacation leave, and statutory increments includes only those periods in which the employee was actually employed or was on vacation, sick or compensatory leave. … [Emphasis in the original]\n\nThe employer states that the layoff letters clearly communicated that the 12-month pay increment period for seasonal employees was calculated based on the total periods in which a seasonal employee actually worked or was on certain types of leave.\n\nThe employer argues that the approach for calculating pay increment periods outlined in the layoff letters aligns with the approach set out in the Pay Increments Policy. Section 4.13 of the Pay Increments Policy addresses as follows how pay increment dates are determined in the case of seasonal employees: 4.13 Seasonal employees All periods during which the employee performed the duties of the position, or was on leave of absence with pay, are included in the calculation of the pay increment period. Unless otherwise provided in the relevant collective agreement, pay plan or specific terms and conditions of employment, pay increments are not affected by periods of leave without pay. Note: The off-season is not included in establishing the pay increment date. …", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-20", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 66–68", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer argues that although the Pay Increments Policy is an archived Treasury Board policy, it continues to provide guidance on matters of pay administration, as long as it has not been superseded by new policy. The employer argues that section 4.13 of the Pay Increments Policy, pertaining to seasonal employees, has not been superseded or replaced by any other policy.\n\nThe employer argues that the Treasury Board is empowered under s. 11.1(1)(c) of the Financial Administration Act (R.S.C., 1985, c. F-11; “FAA”) to “… determine and regulate the pay to which persons employed in the public service are entitled for services rendered …”. The Federal Court of Appeal recognized that this is a wide power that authorizes federal employers to “… do anything that is not expressly or implicitly prohibited by a collective agreement or a law …” (see Canada (Attorney General) v. Association of Justice Counsel, 2016 FCA 92 at para. 24; see also Brescia v. Canada (Treasury Board), 2005 FCA 236 at paras. 50 and 55; Canada (Attorney General) v. Public Service Alliance of Canada, 2017 FCA 208 at para. 14; Cooke v. Treasury Board (Department of the Environment), 2021 FPSLREB 42 at para. 28; and Broekaert, at paras. 37 to 39).\n\nThe employer argues that in this case, there was a gap in the collective agreement scheme, including the Directive, with respect to how the pay increment periods for seasonal employees should be calculated. Under s. 11.1(1)(c) of the FAA, the Pay Increments Policy filled the gap. Therefore, the employer could refer to the Pay Increments Policy when it calculated the grievors’ pay increment periods according to the time they actually worked in their Victoria positions.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-21", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 69–72", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to the employer, the grievors improperly rely on Broekaert to argue that Treasury Board policies, like the Pay Increments Policy, are inapplicable. The employer argues that unlike in Broekaert, there is no contradiction between the collective agreement’s scheme and Treasury Board policy in this case. Rather, the employer argues that the Pay Increments Policy directly supports the collective agreement scheme by clarifying how pay increments should be calculated when the collective agreement is silent and section 5.3 of the Directive applies.\n\nThe employer argues that the grievors’ reference to the Pay Increments Policy during the grievance process is a demonstration that initially, the grievors shared the employer’s view that the Pay Increments Policy was both applicable and relevant and that their pay increment dates should be calculated based on the total time they actually performed the duties of their positions.\n\nIn summary, the employer argues that it properly followed section 5.3 of the Directive and section 4.13 of the Pay Increments Policy in determining the grievors’ pay increment dates for their Victoria positions. Accordingly, the employer determined that their pay increment dates should be calculated based on the total time that they actually performed the duties of the Victoria positions, excluding the time they spent off-season.\n\nThe employer adds that the grievors’ interpretation of the collective agreement would lead to two absurd consequences.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-22", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 73–75", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "First, applying the Pay Notes to seasonal employees would lead to an absurd and unfair outcome for year-round border services officers. Seasonal border services officers would be entitled to the pay increment at the same time as their year-round colleagues, despite working only a fraction of the year. The employer argues that this would create two tiers of pay increment entitlements: an entitlement after a full year of work, and an entitlement after only one season — regardless of the length of that season. It states that the parties to the collective agreement could not have intended to create a double standard for year-round and seasonal border services officers.\n\nSecond, the employer argues that the grievors’ contention that pay increments occur automatically for all full-time and part-time employees on the anniversaries of their appointments, regardless of how much time they actually work, is at odds with the letter and spirit of clause 33.02 of the collective agreement, which provides that “… time spent on such leave [leave without pay] which is for a period of more than three (3) months shall not be counted for pay increment purposes.”\n\nThe employer argues that clause 33.02 of the collective agreement demonstrates that the pay increment date for employees under the collective agreement is not automatic in all cases. It further demonstrates that the parties to the collective agreement did not intend for the pay increment period to comprise extended periods of leave without pay during which an employee does not work. Therefore, it would be absurd for the parties to the collective agreement to have intended that the pay increment period for seasonal employees would include extended off-season periods during which they do not perform their positions’ duties.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-23", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 76–78", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to the employer, the grievors’ argument that seasonal employees are subject to automatic pay increment dates is inconsistent with the collective agreement, which must be read in its entire context and in harmony with other incorporated pay-administration provisions, such as section 5.3 of the Directive. The employer argues that it clearly communicated to the grievors how the pay increment periods for seasonal employees would be calculated, both through the layoff letters and through the publicly accessible Pay Increments Policy. As a result, the employer states that the grievors are not entitled to a shorter pay increment period than are their year-round border-services-officer colleagues.\n\nThe employer also included in its submissions a response to the arguments raised by the grievors during the grievance process (based on the 2 seasonal appointments amounting to a period of 12 months of continuous employment); however, since the grievors no longer rely on those arguments, it is not necessary to reproduce them in this decision.\n\nThe grievors maintain that based on the plain meaning of the Pay Notes, all employees, including them, receive pay increments based on the anniversary dates of their appointments. They argue that the employer’s argument that the grievors were barred from raising that argument at adjudication pursuant to the Federal Court of Appeal’s decision in Burchill fundamentally misconstrues the principle enunciated in that decision. They state that Burchill applies only when a party raises an allegation at adjudication that has “… so altered the original grievance as to change its nature and make it a new grievance”.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-24", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 79–81", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievors state the only issue during the grievance process, and now at adjudication, was and is whether the employer violated the collective agreement by failing to grant their pay increments on the appropriate dates. They state that the nature of the grievances remains the same, and therefore, the Burchill principle does not apply.\n\nThe grievors state that in Burchill, the grievance initially alleged that Mr. Burchill had indeterminate employment status and that he should not have been laid off. At adjudication, Mr. Burchill claimed for the first time that his layoff was, in fact, disguised discipline. The Federal Court of Appeal found that the adjudicator lacked jurisdiction to consider the new grievance as it had not been presented and dealt with during the grievance process, writing that “… it was not open to the applicant … either to refer a new or different grievance to adjudication or to turn the grievance so presented into a grievance complaining of disciplinary action leading to discharge …” (at paragraph 5).\n\nAccording to the grievors, Burchill prevents a grievor from attempting to introduce a new grievance at adjudication. In Schofield v. Canada (Attorney General), 2004 FC 622 at para. 16, for example, the Court prevented a grievor from introducing a claim that he had been demoted when the grievance initially claimed that he had been prematurely recalled from an overseas assignment. However, Burchill does not prevent introducing new arguments, provided that the grievance has not changed.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-25", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "para 82", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievors argue that this point is clearly set out in Delage v. Treasury Board (Department of Fisheries and Oceans), 2008 PSLRB 56. In that case, Mr. Delage alleged that his employer had failed to include a period of parental leave in the calculation of a retroactive payment, contrary to the collective agreement, entitling him to compensation. That remained the issue at adjudication, but Mr. Delage introduced a new human rights argument in support of his grievance, which led to a Burchill objection. The Board dismissed the objection on the following grounds: … 13 The grievor alleges in his grievance that the employer failed to comply with clause 18.07(c)(vii) of the collective agreement by refusing to include the period of parental leave in the calculation of the retroactive amount paid to him following the reclassification of his position. He asks that the employer correct this situation by revising the retroactive payment. 14 The grievor’s failure to present a human rights argument at the various levels of the grievance process and the fact that he only did so at the adjudication stage does not change the nature of the grievance. The details of the grievance and the corrective action requested remain exactly the same. 15 Whether or not the grievor presents a discrimination argument based on family status does not change what is at issue. In fact, the grievance is based on the interpretation of clause 18.07(c)(vii) of the collective agreement. According to the documents on file, the issue in the grievance is whether the expression “pay revision” includes a reclassification like the one that occurred in this case. A number of arguments can be advanced to consider the reclassification as a pay revision. The opposite can also be argued.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-26", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "para 82", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The parties are free to present arguments at adjudication that were not presented during the internal grievance process. 16 The rule established in Burchill is irrelevant to resolving the employer’s objection. In Burchill, the Court states that a grievance presented at adjudication cannot differ from the one presented in the internal grievance procedure. The complaint to be considered by the adjudicator must be stated in the grievance. In this case, the grievance referred to adjudication is identical to the one filed internally. In addition, the complaint is clearly stated in the grievance. … 21 In summary, the presentation of a human rights argument at adjudication, even where the argument was not presented to the employer within the internal grievance procedure, does not in any way constitute a change in the grievance as it is understood in Burchill and in the other decisions filed by the employer. 22 In the grievance filed at the first level of the grievance procedure and later referred to adjudication, the grievor clearly set out what he was accusing the employer of having done, along with the corrective action requested. Those factors are not affected by accepting a human rights argument. … [Emphasis in the original]", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-27", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 83–85", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievors argue that the analysis in Delage applies directly to the employer’s Burchill objection in this case. Each grievance alleges that the grievors were continuously employed for over one year without receiving a pay increment, that the employer failed to compensate the grievors in accordance with the collective agreement, and that the grievors ought to be compensated for the pay and benefits to which they are entitled. Like in Delage, the grievors clearly set out what they allege the employer of having done, along with the corrective action requested — the nature of the grievances remains exactly the same. The grievors argue that the issue was, and remains, whether the employer breached the collective agreement by failing to grant their pay increments on the appropriate dates. They argue that they are free to reframe their arguments and to introduce new arguments to support their position.\n\nThe grievors ask that the Board dismiss the employer’s objection.\n\nAccording to the grievors, the crux of the employer’s position on the merits of the grievances is that the collective agreement is silent with respect to when the grievors should receive their pay increments. All the employer’s arguments, and the language upon which it relies, rest on that central premise. The grievors argue that the employer’s position is fundamentally incompatible with the plain language in the Pay Notes, which define the pay increment period by reference to the anniversary date of the initial appointment.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-28", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 86–89", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievors argue that in light of this clear language, the employer cannot argue that the collective agreement is silent on the issue of pay increments or that there is a “gap in the Collective Agreement scheme” when it comes to seasonal employees. The grievors each received a “… full-time indeterminate appointment on a seasonal basis …” in their appointment letters, and the Pay Notes plainly apply to full-time employees. Nothing in the collective agreement sets out different pay increment rules for seasonal employees.\n\nThe grievors state that the employer is correct that the Pay Notes are a broad statement. However, they argue that this demonstrates that the Pay Notes were intended to apply equally to all full- and part-time border services officers, including full-time indeterminate seasonal employees. Had the parties to the collective agreement intended to exclude seasonal employees from that part of the Pay Notes provisions, they would have done so, as they did at clause 33.02, which sets out a different calculation with respect to leave entitlements for employees on approved leave without pay.\n\nThe grievors argue that given that the Pay Notes expressly define the border services officers’ pay increment period, the remainder of the employer’s arguments must be rejected.\n\nThe grievors highlight that the employer relies on the Directive, but the Directive clearly states that a pay increment period is “… the period between pay increments for the position as set out in the relevant collective agreement or terms and conditions of employment.” The Directive then goes on at section 5.3 to provide a pay increment calculation that applies only when the relevant collective agreement is silent. As such, they argue that the calculation at section 5.3 does not apply in this case.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-29", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 90–93", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievors further argue that the employer relies on its Pay Increments Policy, which was based on a document that was replaced by the Directive.\n\nAs for the letters sent to the grievors informing them of their entitlements while in off-season status, the grievors argue that those letters are irrelevant insofar as they conflict with the Pay Notes.\n\nThe grievors also note that the employer misquoted the Pay Notes in its submissions by omitting the phrase “pay increment period”. The employer stated that “[u]nlike the Pay Note [sic], the Directive refers to an increment ‘period’”. The grievors point out that this appears to be a mistake on the employer’s part, as both the Pay Notes and the Directive refer to “pay increment periods”.\n\nIn terms of the employer’s argument that the parties to the collective agreement could not have intended for border services officers working a fraction of the year to receive the same pay increments as their year-round colleagues, the grievors argue that the employer could make the same argument with respect to part-time employees, who also work fewer hours than their full-time colleagues. However, the grievors point out that under the Pay Notes, all employees receive their pay increments on the anniversary dates of their initial appointments, regardless of hours worked. They argue that this is not an absurd or unfair result but rather what the parties to the collective agreement expressly agreed to when they defined the pay increment period by reference to the “anniversary date”, rather than “12 months of year-round employment”.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-30", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 94–98", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievors argued for the first time at adjudication that they were entitled to a pay increment on the anniversary dates of their first indeterminate appointments based solely on the plain reading of the Pay Notes. The employer argues that that is contrary to what the grievors presented in their individual grievances and during the grievance process, in which they argued that they should have received their pay increments based on having been continuously employed for a period of 12 months.\n\nThe employer objects to the introduction of this “new” argument by the grievors and, relying on Burchill, argues that the grievances should be dismissed on the basis that the grievors have changed the nature of the grievances.\n\nFor the reasons that follow, I disagree.\n\nIt is worth reproducing again the grievances’ wording. They state as follows: … I have been continuously employed with Canada Border Services Agency since May 1, 2011 [or May 1, 2010, for Mr. Anderson] and the employer has not granted my pay increment. I grieve that the employer is not compensating me according to my collective agreement and any other CBSA and Treasury Board of Canada Secretariat Policies or Regulations that may apply. …\n\nAs a corrective measure, the grievors request the following: “I request that I be afforded the pay and benefits to which I am entitled and any other corrective action appropriate in the circumstances and that I be made whole.”", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-31", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 99–101", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Based on the two documents entitled “Grievance Hearing” (reproduced earlier in this decision), which purport to outline the points raised during the grievance process meetings held on July 7 and 8, 2012, the grievors argued that they “… should not have two separate anniversary dates …” and that “[t]hey should have one anniversary date which would be from the appointment date in the initial letter of offer from WC&Y District.” As corrective action, they requested to be “… compensated in back pay from the anniversary of when their first pay increment would be due.”\n\nAs was held in Delage, the Burchill decision cannot be interpreted as a blanket pronouncement preventing grievors from raising any new arguments at adjudication to support their cases. Indeed, grievors are free to raise new arguments at adjudication to support their positions, provided that those arguments do not change the nature of the dispute that the parties discussed during the grievance process.\n\nIn this case, the “new” argument to which the employer objects does not in any way change the nature of the grievances. The parties have disputed and continue to dispute the appropriate date on which the grievors were entitled to their first pay increments and the consequential pay and benefits issues that are attached to it. This is, and has always been, the fundamental issue between the parties, and the nature of their dispute has not changed by virtue of a “new” argument being brought forward to advocate that point at adjudication.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-32", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 102–106", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Whether the grievors argue that they should have received their pay increments on their first anniversary dates based on having been continuously employed, or whether they argue that they should have received their pay increments on those very dates based solely on the plain reading of the Pay Notes, it remains that they are pursuing the same dispute; i.e., they should have received a pay increment on the anniversaries of the dates on which they were first appointed. At all times, the employer knew that the exact dates of the pay increments were at issue, and it cannot genuinely claim to have been taken by surprise with respect to the nature of the dispute being pursued at adjudication.\n\nAs a result, the employer’s preliminary objection is dismissed.\n\nThe issue to be determined is when the grievors became eligible for their first pay increments.\n\nThe essential facts are not in dispute. The grievors were each appointed to an FB-03 “… full-time indeterminate appointment on a seasonal basis …” in Victoria, effective May 1, 2010, in the case of Mr. Anderson, and effective May 1, 2011, in the case of Mr. Boparai and Mr. Broda. They were required to work from May 1 to September 30 of every calendar year and were placed on a “seasonal layoff” from October 1 to April 30 of each year.\n\nIn March 2012, the grievors were advised of a change to their “hours of work” to take effect May 1, 2012, at which point they returned to their Victoria positions as full-time indeterminate employees on a year-round basis.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-33", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 107–109", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Anderson received his first pay increment effective June 27, 2012, which was approximately 26 months after his initial appointment. Mr. Boparai and Mr. Broda received their first pay increments effective November 27, 2012, which was approximately 19 months after their initial appointments. These dates represent the dates on which the grievors completed a period equivalent to 12 months of actual work at their Victoria positions.\n\nThe grievors maintain that they should have received their first pay increments on the anniversary dates of their initial appointments, which corresponds to May 1, 2011, for Mr. Anderson, and May 1, 2012, for Mr. Boparai and Mr. Broda.\n\nThe grievors base their argument on the plain and ordinary reading of the language in the collective agreement.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-34", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 110–111", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Article 62 of the collective agreement provides the pay-administration provisions. The relevant sections read as follows: ARTICLE 62 ARTICLE 62 PAY ADMINISTRATION ADMINISTRATION DE LA PAYE 62.01 Except as provided in this Article, the terms and conditions governing the application of pay to employees are not affected by this Agreement. 62.01 Sauf selon qu’il est stipulé dans le présent article, les conditions régissant l’application de la rémunération aux employé-e-s ne sont pas modifiées par la présente convention. 62.02 An employee is entitled to be paid for services rendered at: 62.02 L’employé-e a droit, pour la prestation de ses services : (a) the pay specified in Appendix A for the classification of the position to which the employee is appointed, if the classification coincides with that prescribed in the employee’s certificate of appointment …. a. à la rémunération indiquée à l’appendice A pour la classification du poste auquel l’employé-e est nommé, si cette classification concorde avec celle qu’indique son certificat de nomination […]. 62.03 (a) The rates of pay set forth in Appendix A shall become effective on the dates specified. 62.03 a) Les taux de rémunération indiqués à l'appendice A entrent en vigueur aux dates précisées. … […] [Emphasis added]\n\nPut simply, clause 62.01 means that the Treasury Board terms and conditions governing the application of pay apply, except when article 62 provides otherwise. In this case, it does.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-35", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 112–114", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Clause 62.02(a) specifies that an employee is entitled to be paid at the pay rates specified in Appendix A. It is uncontested that all three grievors were employees, and as such, pursuant to clause 62.02(a), they were entitled to the pay specified in Appendix A. Moreover, clause 62.03(a) confirms that the rates in Appendix A are effective on the dates specified in that Appendix.\n\nAppendix A details in a grid format the annual rates of pay applicable for each classification in the Border Services Group (FB). Appendix A also includes the Pay Notes that are the subject of this dispute. Among other things, these Pay Notes define the pay increment period. They read as follows: FB - BORDER SERVICES GROUP ANNUAL RATES OF PAY FB – GROUPE : SERVICES FRONTALIERS, TAUX DE RÉMUNÉRATION ANNUELS … […] PAY NOTES NOTES SUR LA RÉMUNÉRATION PAY INCREMENT FOR FULL-TIME AND PART-TIME EMPLOYEES AUGMENTATION D’ÉCHELON DE RÉMUNÉRATION POUR LES EMPLOYÉ-E-S À TEMPS PLEIN ET À TEMPS PARTIEL 1. The pay increment period for employees at levels FB-1 to FB-8 is the anniversary date of such appointment. A pay increment shall be to the next rate in the scale of rates. 1. La période d’augmentation d’échelon de rémunération pour les employé-e-s aux niveaux FB-1 à FB-8 est la date anniversaire de ladite nomination. L’augmentation d’échelon de rémunération sera au taux suivant de l’échelle de taux. … […] [Emphasis added]\n\nIn the grievors’ opinion, the language in the Pay Notes is clear. It provides that for full-time and part-time employees, the pay increment period is the anniversary date of the appointment. As a result, they believe that the fact that they were hired on a seasonal basis is irrelevant to the determination of the date of their first pay increment.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-36", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 115–118", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer, on the other hand, believes the collective agreement is silent as it relates to seasonal employees. As a result, it argues that it is necessary to turn to the Directive and the Pay Increments Policy to determine the applicable pay increment period.\n\nI am unable to agree with the employer’s argument. A plain reading of the collective agreement’s Pay Notes clearly shows that the collective agreement is not silent. Rather, it explicitly defines the pay increment period for full-time and part-time employees as being the anniversary dates of their appointments.\n\nAs the grievors noted, the rules of interpretation were recently reviewed and summarized in Cruceru as follows: … [84] As outlined in authoritative sources such as Brown and Beatty, at paragraph 4:2100, and as recognized throughout the Board’s case law, canons of interpretation such as the following guide this analysis: (1) the parties are assumed to have meant what they said, (2) the meaning and intent of the collective agreement is to be sought in its express provisions, (3) the words of a collective agreement must be given their grammatical and ordinary sense, (4) they must [sic] read in their entire context, in harmony with the scheme of the collective agreement, and (5) when the same words reappear, they are to be given the same interpretation. …\n\nBased on a plain and ordinary reading of the Pay Notes, the pay increment period is the “anniversary date” of an employee’s appointment. I believe that the term “anniversary date” is self-explanatory and that it does not leave room for debate. It is plainly what it says — a date that once set, is repeated each year.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-37", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 119–121", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Furthermore, based on a plain and ordinary reading of the Pay Notes, only two criteria must be met for an employee to be eligible for a pay increment on their anniversary date: they must (1) be a full-time or part-time employee, and (2) have been appointed at levels FB-1 to FB-8. There are no other criteria. There is no mention that an employee must actually perform the duties of their position continuously throughout the year without interruption; nor is any exception expressly made for indeterminate full-time or part-time employees who are hired to work on a seasonal basis.\n\nAs such, I find that the language of the collective agreement is clear as it relates to the pay increment period. However, when seeking to determine the intention of the parties regarding specific clauses in the collective agreement, the analysis does not stop there. As pointed out in Brown and Beatty, at paragraph 4:21, adjudicators must also ensure that the interpretation of specific clauses in a collective agreement is in harmony with the rest of the agreement and would not result in absurd or inconsistent outcomes. It reads as follows: In searching for the parties’ intention with respect to a particular provision in the agreement, arbitrators have generally assumed that the language before them should be viewed in its normal or ordinary sense unless to do so would lead to some absurdity or inconsistency with the rest of the collective agreement, or unless the context reveals that the words were used in some other sense.…\n\nThe employer argues that the exception highlighted in Brown and Beatty applies in this case. It argues that applying the Pay Notes to seasonal employees would lead to an absurd and unfair outcome for year-round border services officers.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-38", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 122–123", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer argues that seasonal border services officers would be entitled to the pay increment at the same time as their year-round colleagues, despite working only a portion of the year. It argues that the parties to the collective agreement could not have intended to create a double standard for year-round and seasonal border services officers.\n\nHowever, as the grievors point out, this so-called double standard already exists as both full-time and part-time employees benefit from a pay increment on their anniversary dates despite the fact they do not work the same number of hours in a year. I also observe that it is entirely possible that a seasonal employee could work the same number of hours as a part-time employee over the course of a year, with the sole difference being how the employer assigned the hours that were worked. As such, I cannot agree that applying the plain language of the collective agreement to the grievors would lead to an absurd outcome, as argued by the employer.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-39", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 124–125", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer also points to clause 33.02 of the collective agreement and argues that the grievors’ interpretation is at odds with it and would lead to another absurdity or inconsistency with the collective agreement. Clause 33.02 is located in the general leave section of the collective agreement and provides as follows: 33.02 Except as otherwise specified in this Agreement: 33.02 Sauf disposition contraire dans la présente convention : (a) where leave without pay for a period in excess of three (3) months is granted to an employee for reasons other than illness, the total period of leave granted shall be deducted from “continuous employment” for the purpose of calculating severance pay and from “service” for the purpose of calculating vacation leave; a. lorsqu'un congé non payé est accordé à un employé-e pour une période de plus de trois (3) mois pour un motif autre que la maladie, la période totale du congé accordé est déduite de la période d' « emploi continu » servant à calculer l'indemnité de départ et de la période de « service » servant à calculer les congés annuels; (b) time spent on such leave which is for a period of more than three (3) months shall not be counted for pay increment purposes. b. le temps consacré à un tel congé d'une durée de plus de trois (3) mois ne compte pas aux fins de l'augmentation d'échelon de rémunération.\n\nThe employer argues that this demonstrates that the pay increment date is not automatic in all cases and that the parties to the collective agreement did not intend for the pay increment period to comprise extended periods of leave without pay during which an employee is not working.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-40", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 126–128", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I agree with the employer to the extent clause 33.02 creates an exception to the general rule in the Pay Notes. Indeed, looking at the entire scheme of the collective agreement, it is clear that the parties to the collective agreement turned their minds to creating an exception to a pay increment occurring on one’s anniversary date. This exception is explicitly detailed in clause 33.02 and excludes from the calculation of a pay increment period time granted to an employee of leave without pay for more than three months, other than sick leave (or maternity or parental leave without pay granted under clauses 38.01(g) and 40.01(g)). However, since the grievors were technically on seasonal layoff from their Victoria positions, this exception does not apply to them.\n\nThe parties to the collective agreement could have extended the exception in clause 33.02 to periods of seasonal layoff; however, they did not. The fact that they chose to limit the exception to pay increments occurring on an anniversary date to only certain periods of leave without pay in excess of three months does not appear absurd given that these periods of leave without pay are at an employee’s request. This stands in stark contrast to periods of layoff which are unilaterally imposed by the employer.\n\nOnce again, I do not believe that applying the plain language of the collective agreement to the grievors would result in an absurd outcome or inconsistent application of the collective agreement as the employer suggested in relation to clause 33.02. To the contrary, the employer’s position would result in the need to read into the collective agreement an exception that does not exist. As a decision maker, I do not possess that authority.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-41", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 129–132", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The scope of a decision maker’s authority in a case as the one before me was summarized well in Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112, in which the Board stated this at paragraph 50: 50 I start with the trite but true observation that my authority as an adjudicator is limited to and by the express terms and conditions of the collective agreement. I can only interpret and apply the collective agreement. I cannot modify terms or conditions that are clear. Nor can I make new ones. The fact that a particular provision may seem unfair is not a reason for me to ignore it if the provision is otherwise clear ….\n\nIn this case, the Pay Notes are very clear. They provide that for full-time and part-time employees at levels FB-1 to FB-8, the pay increment period is the anniversary date of such appointment. The collective agreement provides for a sole exception to the pay increment period occurring on the anniversary date of an employee’s appointment. It is clause 33.02. It excludes from the calculation of the pay increment period any leave without pay granted to an employee of more than three months, other than sick leave (or maternity or parental leave under clauses 38.01(g) and 40.01(g)).\n\nI find no reason why the provisions of the collective agreement as it relates to the pay increment period should not be applied as just stated.\n\nThe grievors were all hired as FB-03 employees in “full-time indeterminate appointments”. The fact that the appointments were on a seasonal basis does not change that the grievors were appointed as full-time employees. Had the employer not wished for them to benefit from the entitlements of full-time employees, it could have hired them on a different basis. It did not.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-42", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 133–135", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Since the grievors were hired as full-time employees, they are covered by the plain wording of the Pay Notes that applies to full- and part-time employees. Further, the exception in clause 33.02 does not apply to them as they were not on a granted leave of absence without pay during their off season from their Victoria positions.\n\nI conclude and find that the grievors were entitled to pay increments on the anniversary dates of their respective appointments to the Victoria positions, being May 1, 2010, for Mr. Anderson, and May 1, 2011, for Mr. Boparai and Mr. Broda. Therefore, Mr. Anderson was entitled to his first pay increment on May 1, 2011, and Mr. Boparai and Mr. Broda were both entitled to their first pay increment on May 1, 2012.\n\nSince the Pay Notes’ language is clear, and based on the application of clauses 62.01, 62.02(a), and 62.03(a), any reliance on external directives or manuals would violate the collective agreement. On this point, I find that Broekaert is entirely distinguishable since the collective agreement language in that case was silent, which made it necessary to refer to external documents to make a determination. That is not so in this case.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-43", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "paras 136–142", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "However, had I concluded that the collective agreement was silent as it relates to the grievors, the outcome would have been the same, since section 5.3 of the Directive provides “[w]hen the relevant collective agreement is silent, the pay increment period is 12 months and is calculated in accordance with this Appendix”. As the Appendix to the Directive does not address how a pay increment period should be calculated for full-time employees hired on a seasonal basis, the grievors would have been entitled to a pay increment 12 months after their initial appointments. The Pay Increments Policy would have been of no assistance since it purports to apply and interpret the regulations that were explicitly replaced by the Directive effective April 1, 2009. Therefore, it stands to reason that the Pay Increments Policy was likewise replaced by the Directive.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe employer’s objection based on the Burchill principle is dismissed.\n\nThe grievances are allowed.\n\nI order the Treasury Board to recalculate Mr. Anderson’s salary and any related benefits based on his first pay increment occurring on May 1, 2011.\n\nI order the Treasury Board to recalculate Mr. Boparai’s and Mr. Broda’s salaries and any related benefits based on their first pay increment occurring on May 1, 2012.\n\nI order the Treasury Board to pay the grievors the difference between the amounts recalculated under paragraphs 140 and 141 respectively of this decision and the amounts that were paid to them before those recalculations were made, less the customary deductions, within 60 days of this decision.", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-521082-44", - "doc_type": "caselaw", - "act_code": "2023 FPSLREB 75", - "act_short": "Anderson", - "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", - "marginal_note": "para 143", - "heading": "CBSA grievance; interpretation of the FB-group collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The Board will remain seized for a period of 90 days of the issuance of this decision with respect to any issues that arise with the calculation of the amounts referred to in paragraphs 140, 141 or 142 of this decision. July 31, 2023. Audrey Lizotte, a panel of the Federal Public Sector Labour Relations and Employment Board", - "current_to": "2023-07-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" - }, - { - "id": "fpslreb-520948-1", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 1–5", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "This decision is issued at the same time as its companion decision White v. Treasury Board (Correctional Service of Canada), 2022 FPSLREB 52. Together, they offer a reformulation and simplification of the principles set out in Vallée v. Treasury Board (Royal Canadian Mounted Police), 2007 PSLRB 52, for determining whether an employer has violated a prohibition contained in section 147 of the Canada Labour Code (R.S.C., 1985, c. L-2; “the Code”).\n\nIn this matter, Alex Burlacu (“the complainant”) made what is generally called a “reprisal complaint” under s. 133 of the Code. Mr. Burlacu is a senior program officer with the Canada Border Services Agency (“CBSA”). He alleged that Andrew LeFrank, then a director general for the CBSA, threatened to discipline him for actions he took in relation to a health and safety issue in his workplace, in contravention of s. 147 of the Code. These provisions fall within Part II of the Code, which governs health and safety in the federal public service and federally regulated workplaces.\n\nOn February 19, 2019, Mr. Burlacu provided the CBSA with a violence-in-the-workplace notice, pursuant to the Canada Occupational Health and Safety Regulations (SOR/86-304). Related to that notice, on March 4, 2019, he exercised his right to refuse unsafe work, pursuant to s. 128(1) of the Code.\n\nIn response to these actions, the CBSA arranged for Mr. Burlacu to report to a different manager on an interim and temporary basis. During several discussions that followed, most of which took place via email, the complainant questioned and challenged management’s decision to require the change in reporting relationship.\n\nEventually, on March 19, 2019, Mr. LeFrank ordered Mr. Burlacu to report to the new supervisor or face possible disciplinary action.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-2", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 6–8", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On April 30, 2019, Mr. Burlacu made this complaint, alleging that the March 19, 2019, order violated s. 147 of the Code. As corrective action, the complainant requested that Mr. LeFrank’s order be set aside so that he could return to the duties of his substantive position.\n\nThe Treasury Board is the complainant’s legal employer: see s. 240(c), and the definition of “employer” in s. 2(1), of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). As s. 147 of the Code imposes a prohibition on an employer, the Treasury Board is the respondent to the complaint.\n\nIn this decision, “the Board” refers to the Federal Public Sector Labour Relations and Employment Board and its predecessors.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-3", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 9–10", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I will quote more extensively from the relevant provisions of the Code in the reasons that follow, but for introductory purposes, I want to highlight the following portions of s. 147: 147 No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee … 147 Il est interdit à l’employeur de congédier, suspendre, mettre à pied ou rétrograder un employé ou de lui imposer une sanction pécuniaire ou autre ou de refuser de lui verser la rémunération afférente à la période au cours de laquelle il aurait travaillé s’il ne s’était pas prévalu des droits prévus par la présente partie, ou de prendre — ou menacer de prendre — des mesures disciplinaires contre lui parce que : […] (c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part. c) soit il a observé les dispositions de la présente partie ou cherché à les faire appliquer. [Emphasis added]\n\nThe complainant argued that there was a direct link between the exercise of his rights under the Code and the threat of discipline, in violation of s. 147, and that the complaint be allowed.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-4", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 11–12", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The respondent argued that no threat of discipline was made. All Mr. LeFrank did was caution Mr. Burlacu about the implications if he did not report to the new manager. Alternatively, if the March 19, 2019, direction amounted to a threat of discipline, then it was not linked to the complainant’s exercise of rights under the Code but to his refusal to cooperate with a change in reporting relationship, a change that the employer was authorized to make. Either way, the respondent did not violate s. 147, it argued.\n\nThe underlying events of this case have led to multiple administrative and legal actions on the part of the complainant, which are proceeding or have proceeded in front of several decision makers. After the passage of three years, the workplace-violence notice is still awaiting investigation by a competent person. Some related grievances presented to the CBSA are now the subjects of judicial reviews in front of the Federal Court or the Federal Court of Appeal. A finding that there was “no danger” with respect to the complainant’s March 4, 2019, work refusal was the subject of a decision rendered by the Occupational Health and Safety Tribunal of Canada (Burlacu v. Canada Border Services Agency, 2021 OHSTC 4; “Burlacu 2021 (OHSTC)”).", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-5", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 13–16", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "While these other proceedings are not before the Board, much of the evidence in this matter is intertwined with evidence that may be related to these other proceedings. For example, in Burlacu 2021 (OHSTC), the seven-page summary of evidence at paragraphs 3 to 16 overlaps entirely with the evidence put before the Board in this matter. The emails exchanged between the complainant and his manager in February and March 2019 contain extensive arguments about the employer’s rights and responsibilities under the Code, several of which relate directly to the complainant’s arguments before me.\n\nTherefore, while the essential facts of this case are relatively simple, reporting them and the parties’ arguments in this case is more complex and multilayered. I have endeavoured to accurately report the scope of the parties’ evidence and arguments while respecting the limits of the Board’s mandate.\n\nThe challenge before me is to consider the broader context of the events while limiting my decision to one issue: Did the respondent violate s. 147 of the Code?\n\nAs will be detailed in the reasons that follow, when an employee makes a work refusal under the Code and subsequently makes a complaint under s. 133 in relation to that work refusal, the respondent bears the burden of proving that there was no violation of s. 147.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-6", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 17–22", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I find that the respondent has met that burden. While I agree with Mr. Burlacu that he was threatened with discipline, the respondent has satisfied me, on a balance of probabilities, that this threat was not because of Mr. Burlacu’s work refusal under the Code. The CBSA sought to put into place a change in reporting relationship that would temporarily provide a safe work environment for the complainant. The evidence shows that Mr. Burlacu was seeking a different interim solution, such as being granted leave with pay for other reasons. He went to considerable effort to question and challenge the employer’s authority to direct the change in reporting relationship. The threat of discipline was based on a perception by Mr. LeFrank of possible insubordination on the part of Mr. Burlacu, not to his work refusal under the Code.\n\nThe respondent called Mr. LeFrank as its witness. At the time of the events in question, Mr. LeFrank was Director General of Enforcement and Intelligence Operations at the CBSA. He testified that in that position, he had some 150 direct and 2000 indirect reports across the country. Mr. Burlacu was an indirect report.\n\nIn February and March 2019, Mr. LeFrank had the lead role in responding to Mr. Burlacu’s workplace-violence notice and work refusal. Most of the correspondence referenced in the chronology that follows involved email exchanges between the two of them.\n\nMr. LeFrank retired from the CBSA in May of 2019; he testified that his last actual day of work was March 28, 2019, just shortly after the events in question.\n\nThe complainant testified for himself.\n\nI will make two procedural notes before summarizing the evidence.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-7", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 23", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At one point during the hearing, the complainant began to testify about the meaning of certain email exchanges between him and Mr. LeFrank. The respondent objected to this testimony on the basis that the complainant was not following the rule in Browne v. Dunn, 1893 CanLII 65 (FOREP), which requires that a party intending to challenge the credibility of a witness by putting forward contradictory evidence must put that contradictory evidence to that witness. The complainant had not questioned Mr. LeFrank about those emails when he was cross-examining Mr. LeFrank. After the rule was explained to Mr. Burlacu, I allowed the complainant to continue his testimony, provided that the respondent be allowed to recall Mr. LeFrank to testify further about the document in question. The respondent did recall Mr. LeFrank, and the complainant was also given the right to cross-examine further Mr. LeFrank during that recall testimony.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-8", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 24–25", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I will also note that in the case management process before the hearing, the complainant took the position that the content of his workplace-violence notice was not relevant to the issues before the Board. Alternatively, if the respondent were to claim that the threat of discipline was related to the workplace-violence notice, then all documents related to that notice should be produced to him, he argued, and the Board should order their pre-hearing production. I ruled that the content of the notice was arguably relevant and ordered the respondent to produce to the complainant all documents related to it. At the hearing, the complainant included the workplace-violence notice in his book of documents and testified about it, and it was accepted as evidence. I note that in other parts of the documentary evidence, the complainant took the position that his workplace-violence notice and work refusal were inextricably linked.\n\nAlthough they did not appear as witnesses, three other CBSA employees were referenced frequently in the testimony and documentary evidence before me. The three employees and their work relationships to the complainant and Mr. LeFrank at the time of the events in question were as follows: · Mehdi Ghaani, Acting Manager of the Operations Branch, and Mr. Burlacu’s direct supervisor; · Sharon Spicer, Director of Inland Enforcement Operations and Case Management, Mr. Ghaani’s manager, and a direct report to Mr. LeFrank; and · Brett Bush, Director of Inland Enforcement Program, an alternate work unit, and a direct report to Mr. LeFrank.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-9", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 26–29", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The summary of evidence that follows is based on witness testimony and documents entered into evidence. Facts not in dispute are summarized without referencing the source. For any conflict in the evidence, I make specific reference to what I heard from different witnesses.\n\nIn the following sections, I will first summarize the chronology of events, followed by a few additional points of evidence that do not fit easily into the chronology.\n\nOn February 7, 2019, Mr. Burlacu made a request to Mr. Ghaani for the approval of leave with pay to attend a Federal Court proceeding that he was involved in with the CBSA. He made the request under article 52 of his collective agreement, “… leave with or without pay for other reasons”. On February 11, 2019, Mr. Ghaani denied the leave request. In the course of the next two days, an exchange of more than a dozen emails took place. During this exchange, Mr. Ghaani maintained his position that the leave requested would not be approved under article 52 and that Mr. Burlacu would have to take some other form of leave (vacation, compensatory leave, etc.). During this exchange, Mr. Ghaani also told Mr. Burlacu that any unauthorized absence, without approved leave, could result in disciplinary action.\n\nI will note that the respondent objected to this exchange of emails being entered in evidence, on the basis that it preceded any exercise of rights under the Code by the complainant. I allowed the exchange to be entered as I found it provided context for the events that followed. I also note that in the exchange, Mr. Burlacu indicated to Mr. Ghaani that he was considering exercising his rights under the Code.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-10", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 30–32", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On Tuesday, February 19, 2019, at 1:51 p.m., Mr. Burlacu provided a violence-in-the-workplace notice, pursuant to the Canada Occupational Health and Safety Regulations. It was given to Mr. Ghaani. The notice alleged workplace violence due to a “pattern of behaviour” by management with respect to leave requests. The notice alleged that management consulted Labour Relations on “every request” made by Mr. Burlacu and alleged that the CBSA was failing to “… treat [him] in accordance with the values of the public sector ….”\n\nMr. Ghaani’s response, at 3:41 p.m., indicated that he and the complainant had met to discuss leave approval issues. He explained that most of the complainant’s leave requests had been addressed but that he needed more time to respond to his request for leave with income averaging. He also indicated that since the violence-in-the-workplace notice related to him, he was referring the notice to Ms. Spicer.\n\nMs. Spicer responded at 4:27 p.m. She acknowledged receipt of the violence-in-the-workplace notice and indicated that she took Mr. Burlacu’s allegations as very serious. She authorized him to take leave with pay for the rest of February 19 and for the following day, Wednesday, February 20. The complainant replied at 4:37 p.m., agreeing to the short-term plan. He also indicated that his email to Mr. Ghaani should not be taken as a complete list of the issues that had led to his allegation of workplace violence.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-11", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 33–35", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Burlacu returned to work on Thursday, February 21. He met with Mr. LeFrank that morning and again the next day. They began a discussion of interim measures. Following these meetings, at 11:14 a.m. on February 22, Mr. Burlacu sent an email to Mr. LeFrank, asking to be informed about what steps would be taken in the interim to protect him from the workplace violence. He also stated that he was prepared to fully participate in the investigation into his workplace-violence notice.\n\nOn Monday February 25, the complainant had a compressed day off work. At 9:20 a.m. that morning, he sent Mr. Ghaani an email indicating that on the advice of his doctor, he would be away from the office until March 4, 2019. He testified that he was compelled to make this request to Mr. Ghaani because Mr. LeFrank had not accepted his proposal to report directly to him. Mr. LeFrank testified that it would have been acceptable for this leave request to have been made directly to him.\n\nAlso on Monday, February 25, at 9:23 a.m., Mr. LeFrank wrote a follow-up email to Mr. Burlacu’s summary of their meeting on February 22. In it, he said, “In order to arrive at an interim solution I may need to identify another person to whom you can report temporarily and who is not included in the scope of the investigation. That may require a list of names from you. I hope to have an answer for you today.”", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-12", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 36–41", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant testified that he did not see Mr. LeFrank’s February 25 email until he returned to work on March 4, 2019. He sent an email that morning at 9:29 a.m., stating this: … … I cannot see how I can continue to perform employment-related activities (especially requesting leave) absent some measures being taken by the Employer, even on an interim basis, to limit my exposure to the circumstances that gave raise to my work place violence complaint. …\n\nHe also indicated that he was about to have a conversation with an advisor from the Informal Conflict Management System program.\n\nOn Monday, March 4, 2019, at 10:35 a.m., Mr. Burlacu exercised his right to refuse work pursuant to s. 128(1) of the Code, based on the following perceived danger: … · the imminent threat to my mental health arising out of the requirement to continue to perform my employment-related activities (especially requesting leave) in the absence of any measures being taken by the Employer, even on an interim basis, to limit my exposure to the circumstances that gave raise to my work place violence complaint. …\n\nThe work refusal was made to Mr. Ghaani, who then forwarded it to Ms. Spicer. He asked her if Mr. Burlacu could be removed from the team as soon as possible.\n\nOn March 4, at 11:18 a.m., Mr. LeFrank wrote to Mr. Burlacu and explained that to identify an appropriate interim reporting relationship, he needed a list of the individuals related to the workplace-violence notice.\n\nOn March 4, at 12:09 p.m., Mr. Burlacu identified Mr. Ghaani, Ms. Spicer, and any labour relations advisor or advisors assisting them in providing responses to his requests as the individuals related to the workplace-violence notice.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-13", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 42", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On Tuesday, March 5, at 3:47 p.m., Mr. LeFrank wrote an email to Mr. Burlacu in response to the workplace-violence notice and his subsequent work refusal. In this email, he · communicated his responsibility for ensuring that employees have a safe and healthy work environment; · acknowledged that Mr. Burlacu’s immediate supervisor and director were related to the workplace-violence notice (i.e., Mr. Ghaani and Ms. Spicer); · explained that an interim and temporary solution had been identified, which was reporting to the director of inland enforcement programs (i.e., Mr. Bush), and in determining the assignment, he took into consideration Mr. Burlacu’s safety and mental health and the need to provide meaningful work until a formal investigation was completed; · explained why it would not be appropriate for Mr. Burlacu to report directly to him, given his schedule and volume of emails, and said that given their mutual agreement to engage in informal conflict management he did not think a direct reporting relationship appropriate, as it might jeopardize the success of that process; · acknowledged Mr. Burlacu’s concerns about being “pushed out” of the Case Review section and explained that a temporary change in reporting relationship was necessary, given the workplace-violence notice and the subsequent work refusal and alleged threats to his mental health; and · with respect to Mr. Burlacu’s proposal to be placed on leave with pay, said that he could not approve it as “… there is no precedent or authority to provide … leave with pay pending an informal-conflict-management process or investigations of violence.”", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-14", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 43–45", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On Tuesday, March 5, at 7:01 p.m., Mr. Burlacu responded. In this email, he · argued that Mr. LeFrank had authority to grant leave with pay under s. 11.1(1)(c) of the Financial Administration Act (R.S.C., 1985, c. F-11); · reiterated his belief that management’s actions or inactions toward him and his legitimate requests were taken with the goal of pushing him out of the unit; · emphasized that his workplace-violence notice related to psychological violence “… in the course of exercising managerial authority …”; · described the temporary reporting relationship as a “temporary solution” rather than an “assignment”; · requested to remain in his current cubicle and attend weekly meetings of the Case Review Unit; and · took the position that any further delay in answering his request for leave with income averaging was a continuation of workplace violence.\n\nOn Wednesday, March 6, at 2:16 p.m., Mr. LeFrank promised to respond the next day with respect to the request for leave with income averaging and the requests about the interim change in reporting.\n\nOn Thursday, March 7, at 5:21 p.m., Mr. LeFrank wrote to explain that: · Mr. Burlacu’s request to remain in his current cubicle was approved; · his request to attend weekly meetings of the Case Review Unit was not approved, given the need to separate him from the manager of that unit (i.e., Mr. Ghaani), to protect him from the alleged workplace violence; · the effective date of the change in reporting relationship would be Monday, March 11, 2019.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-15", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 46", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On Thursday, March 7, at 7:46 p.m., Mr. Burlacu responded by email. Unlike the previous emails in this chain, in which the subject line was blank, this reply included a subject, “Continued refusal – subsection 128(9) of the Canada Labour Code”. In this email, he · questioned whether Mr. LeFrank’s emails represented the immediate action that the employer was taking pursuant to s. 128(8) of the Code (i.e., if the employer agrees there is a danger, to take action to protect the employee from the danger), and if so, requested a copy of the written report setting out the results of the investigation conducted pursuant to s. 128(7.1); · stated that he was continuing his work refusal pursuant to s. 128(9), given management’s refusal to allow him to attend team meetings and not to grant him leave with pay; and · questioned the legal authority of the employer to remove him from his position, pursuant to s. 49 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the PSEA”).", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-16", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 47–49", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. LeFrank testified that on March 8, 2019, he provided Mr. Burlacu with what he called the “stage one investigation report” with respect to the work refusal (i.e., the report required by s. 128(7.1)). The decision listed in the report was one of “No Danger”. He recalled that Mr. Burlacu did not understand how the employer could conclude that there was no danger but still proceed with a change in reporting relationship. He testified that while he had found no danger, he did not dismiss Mr. Burlacu’s view that there was a danger, and that he wanted an investigation by a competent person to proceed so that Mr. Burlacu could return to his position in a situation in which he did not feel threatened. He testified that he had difficulty understanding Mr. Burlacu’s allegations of violence, which is why he wrote these comments in his investigation report: “The nature of these allegations do not align with work refusals normally investigated at the Agency. Further, the alleged workplace violence is not experienced by other persons in the unit even though they are operating in the same environment.”\n\nOn Friday, March 8, at 5:38 p.m., Mr. Burlacu wrote again to Mr. LeFrank, following their meeting. In this email, he · thanked Mr. LeFrank for emphasizing to Mr. Bush the importance of the complainant remaining in his current cubicle; · wrote that he did not view Mr. Ghaani’s presence at team meetings as an exercise of his managerial authority but that he was willing to accept the solution of attending those Case Review meetings that Mr. Ghaani would not attend; and · accepted the interim and temporary solution and abandoned his refusal to work, effective immediately.\n\nMr. Burlacu testified that as of March 11, 2019, he began reporting to Mr. Bush.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-17", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 50", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On Tuesday, March 12, at 10:42 a.m., Mr. LeFrank wrote to Mr. Burlacu. In this email, he wrote as follows: … As a point of clarification, having received my work refusal stage one investigation report are you agreeing with my findings that there is no danger in which case there would be no need for an interim temporary reporting arrangement or do you disagree with my findings, continue to require an interim temporary arrangement, and the work refusal continues for the regular reporting relationship of your substantive position? This is important for me to know in order to refer your work refusal to a labour investigator that will likely conclude more quickly than the violence in the workplace complaint. …", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-18", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 51", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On Wednesday, March 13, at 10:37 a.m., Mr. Burlacu wrote back to Mr. LeFrank, responding to the email of March 12 and referencing a discussion they had that day. In this email, he · stated that he no longer believed the matter to be resolved and that pursuant to s. 128(9) of the Code, he was continuing his right to refuse work; · restated his view that a danger existed and that his agreement to the interim solution was predicated on that; · questioned how Mr. LeFrank could determine that no danger existed while maintaining the need for a temporary assignment; · said, With respect, I cannot see how the work refusal can be regarded as separate from the work place violence complaint, when the work refusal was specifically premised on the failure of the Employer to take any measure to “limit my exposure to the circumstances that gave raise to my work place violence complaint.”; · questioned the authority of the employer to unilaterally assign other duties and said that he had been refusing since summer of 2017 to be pushed out of his unit through harassment and now psychological violence; and · rejected the temporary work arrangement and said that “… if you are ordering me to report to Mr. Bush, please do so explicitly [and] indicate what the legal basis is for such an order ….”", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-19", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 52–54", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On Friday, March 15, at 4:15 p.m., Mr. LeFrank wrote to Mr. Burlacu. In this email, he · indicated that the temporary interim reporting relationship was initiated and put in effect as a result of the workplace-violence notice; · explaining why he had asked for clarification, said that he had expected a rejection of the stage one investigation finding of no danger, and therefore expected it to go to a “labour investigator” due to confidentiality concerns, but that he was subsequently informed that the Work Place Health and Safety Committee needed to investigate; · indicated that his authority to assign other work was under s. 129(5) of the Code; and · confirmed his direction that Mr. Burlacu report to Mr. Bush until the workplace-violence notice was resolved.\n\nOn Tuesday, March 19, at 9:45 a.m., Mr. Burlacu wrote back to Mr. LeFrank. In this email, he challenged the authority of the employer to assign other work under s. 129(5) of the Code because that section is triggered by the employee’s exercise of rights under s. 129(1.3), which he had not done. He also reiterated his interest in using the informal-conflict-management process to resolve the matters in dispute.\n\nLater that day, at 3:41 p.m., Mr. LeFrank wrote that in addition to s. 129(5), he had the authority to assign other work under the “general duty clause” of the Code, at s. 124 (which states that the “… employer shall ensure that the health and safety at work of every person employed by the employer is protected”) and under s. 128.1(3) (“An employer may assign reasonable alternative work to employees who are deemed under subsection (1) of (2) to be at work.”).", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-20", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 55–58", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Two hours later, at 5:41 p.m., Mr. Burlacu wrote to Mr. LeFrank. In this email, he · disagreed with Mr. LeFrank’s assertion that s. 124 provides the employer with the “… unilateral authority to remove me from a position to which I have been appointed by the Public Service Commission …”, particularly after finding that there was no danger; · challenged Mr. LeFrank’s reliance on s. 128.1(3) because that fell under the section dealing with employees on shift during a work stoppage; and · requested a meeting the following day.\n\nMr. LeFrank’s response to that email is the subject of this complaint. Dated March 19, 2019, at 5:54 p.m., he wrote the following to Mr. Burlacu: Alex - I will not be meeting with you tomorrow. The situation is clear. You will report immediately to Mr. Bush. Failure to comply with this direction may result in disciplinary action as I find it to be insubordination. …\n\nOn March 21, 2019, the Work Place Health and Safety Committee completed its stage II investigation report into Mr. Burlacu’s work refusal. The committee concluded that there was “No Danger” but also noted, “Although this investigation has ruled that there is no reasonable danger to employees, the conclusion has been made that the complainant believes his mental well-being is in danger.”\n\nOn March 22, 2019, Mr. Burlacu and Mr. LeFrank participated in an informal-conflict-management session in an effort to resolve the issues in dispute.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-21", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 59–61", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On March 24 and 25, 2019, Mr. Burlacu and Mr. LeFrank exchanged several more emails, in which they discussed the relationship between the workplace-violence notice and the work-refusal process, the employer’s response to the stage II report, and the alternate reporting relationship to Mr. Bush. Mr. Burlacu testified that in these emails, he gave Mr. LeFrank two opportunities to deny that his email of March 19, 2019, was a threat made because the complainant had exercised the right that the Code gave him to refuse to work, and that Mr. LeFrank did not deny that.\n\nOn March 25, at 1:59 p.m., Mr. LeFrank wrote this: “I have agreed to continue to keep the temporary interim reporting arrangement in place until the conclusion of the complaint investigation or should you choose, you consider the matter resolved.”\n\nIn reply, on March 25, 2019, at 5:13 p.m., Mr. Burlacu stated that he had complied with the order of March 19 to report to Mr. Bush but added, “I am now of the view that this threat was made so as to prevent me from fully exercising my rights under s. 128.” He stated his belief that this rendered any further proceedings under s. 128 moot and concluded with the following: … … Therefore, I cannot see how I have any choice other than to comply with your order, regardless of the fact that I absolutely disagree with the finding of ‘no danger,’ the manner in which the investigations were conducted, both at stage I and II, and your reliance on section 124 to explain your order that I report to Mr. Bush. …", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-22", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 62–65", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Following the results of the stage II investigation by the Work Place Health and Safety Committee, Mr. Burlacu’s work refusal was referred to “the Labour Program” on March 26, 2019. The official conducting that review is called the “ministerial delegate”. Her report was completed on April 3, 2019, and confirmed the finding of “no danger”. This report was the subject of Mr. Burlacu’s appeal to the Occupational Health and Safety Tribunal of Canada in Burlacu 2021 (OHSTC).\n\nAs already noted, Mr. LeFrank’s last day of work at the CBSA, before his retirement, was March 28, 2019.\n\nMr. Burlacu made his complaint under s. 133 of the Code to the Board on April 30, 2019, directly in relation to the content of Mr. LeFrank’s email of March 19, 2019.\n\nI want to summarize five additional points of evidence that do not fit easily into the chronology of events.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-23", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 66–67", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "First, Mr. Burlacu testified about what he saw as a pattern in which managers were alleging insubordination on his part, leading up to the use of that word in Mr. LeFrank’s March 19, 2019, email. He cited content from a harassment complaint he made against Ms. Spicer on March 27, 2019. He took me to that complaint, which lists more than 25 incidents between September 2017 and the date of that complaint. He testified about two of these incidents in particular. The first was in September of 2017, when Ms. Spicer is alleged to have commented that he was “bordering on insubordination” for continuing to request written confirmation of who his manager was. The second was in April of 2018, in which the Director General of Labour Relations, following a review of multiple grievances filed by Mr. Burlacu, is alleged to have harassed him by writing in an email that the complainant “… ‘often question[s] management decisions to the point of near insubordination.’ ”\n\nMr. Burlacu testified that he also made these same allegations in a January 31, 2019, harassment complaint against two labour relations officers. That complaint also alleged harassment by Labour Relations staff for having concluded that he “… ‘often question[s] management decisions to the point of near insubordination’ ” and for sharing that information with his managers.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-24", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 68–69", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In relation to the harassment complaint of January 31, 2019, I take note that it was the subject of a decision of the Federal Court in Burlacu v. Canada (Attorney General), 2021 FC 339. The emails with respect to insubordination are summarized at paragraphs 13 and 15 of that decision. The Federal Court heard that matter on judicial review of the CBSA’s rejection of a grievance that Mr. Burlacu filed after the CBSA determined the harassment complaint unfounded. The Federal Court upheld the employer’s decision. Mr. Burlacu has appealed that decision to the Federal Court of Appeal (file no. A-140-21).\n\nSecond, Mr. LeFrank testified at length about his intentions behind putting the alternate reporting relationship into place. He said that a solution was needed to remove Mr. Burlacu from potential harm but to still allow him to perform meaningful work. He testified that in the end, he concluded that “it was time to go to work” and that no further discussion on the alternate reporting relationship was needed. In cross-examination, he testified about the content of the March 19, 2019, email, and he said to Mr. Burlacu: “I was trying to caution you. I was trying to encourage you to comply with my direction. In no way was I trying to dissuade you to refuse work.” He also testified that he supports any individual’s right to redress, particularly when it comes to health and well-being, and that throughout, he was trying to make sure that he had done everything he could to protect Mr. Burlacu’s health and safety.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-25", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 70–72", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Third, the complainant testified that at the time of the hearing, his workplace-violence notice remained outstanding as it had still not been investigated by a competent person. The CBSA had made proposals for appointing a competent person, but he still disagreed with some aspects of the appointment.\n\nFourth, the complainant testified that he was not actually disciplined for insubordination with respect to the order to report to Mr. Bush, and he has not been disciplined at any time by the CBSA for insubordination.\n\nFifth, the complainant acknowledged that he has several proceedings before the Federal Court and the Federal Court of Appeal that relate directly or indirectly to the events in this matter.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-26", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 73", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The prohibition against reprisals is found at s. 147 of the Code, which reads as follows: 147 No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee … (c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part. 147 Il est interdit à l’employeur de congédier, suspendre, mettre à pied ou rétrograder un employé ou de lui imposer une sanction pécuniaire ou autre ou de refuser de lui verser la rémunération afférente à la période au cours de laquelle il aurait travaillé s’il ne s’était pas prévalu des droits prévus par la présente partie, ou de prendre — ou menacer de prendre — des mesures disciplinaires contre lui parce que : […] c) soit il a observé les dispositions de la présente partie ou cherché à les faire appliquer. [Emphasis added]", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-27", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 74", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The provision that allows an employee to make a reprisal complaint is found at s. 133, which reads in part as follows: 133 (1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention. … 133 (1) L’employé — ou la personne qu’il désigne à cette fin — peut, sous réserve du paragraphe (3), présenter une plainte écrite [à la Commission] au motif que son employeur a pris, à son endroit, des mesures contraires à l’article 147. […] (3) A complaint in respect of the exercise of a right under section 128 … may not be made unless the employee has complied with subsection 128(6) …. … (3) Dans les cas où la plainte découle de l’exercice par l’employé des droits prévus aux articles 128 […], sa présentation est subordonnée, selon le cas, à l’observation du paragraphe 128(6) par l’employé […] […] (5) On receipt of a complaint made under this section, the Board may assist the parties to the complaint to settle the complaint and shall, if it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances, hear and determine the complaint. (5) Sur réception de la plainte, [la Commission] peut aider les parties à régler le point en litige; [si elle] décide de ne pas le faire ou si les parties ne sont pas parvenues à régler l’affaire dans le délai [qu’elle] juge raisonnable dans les circonstances, [elle] l’instruit [elle-même].", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-28", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 74", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "(6) A complaint made under this section in respect of the exercise of a right under section 128 … is itself evidence that the contravention actually occurred and, if a party to the complaint proceedings alleges that the contravention did not occur, the burden of proof is on that party. (6) Dans les cas où la plainte découle de l’exercice par l’employé des droits prévus aux articles 128 […], sa seule présentation constitue une preuve de la contravention; il incombe dès lors à la partie qui nie celle-ci de prouver le contraire.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-29", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 75", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The provision at s. 133(6) is important because it reverses the burden of proof onto the respondent, in a situation where a complainant exercised their right to refuse to perform an activity reasonably perceived as dangerous. That right is found at s. 128, which reads in part as follows: 128 (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that … 128 (1) Sous réserve des autres dispositions du présent article, l’employé au travail peut refuser d’utiliser ou de faire fonctionner une machine ou une chose, de travailler dans un lieu ou d’accomplir une tâche s’il a des motifs raisonnables de croire que, selon le cas : […] (c) the performance of the activity constitutes a danger to the employee or to another employee. … c) l’accomplissement de la tâche constitue un danger pour lui-même ou un autre employé. […] (6) An employee who refuses to use or operate a machine or thing, work in a place or perform an activity under subsection (1) … shall report the circumstances of the matter to the employer without delay. … (6) L’employé qui se prévaut des dispositions du paragraphe (1) […] fait sans délai rapport sur la question à son employeur. […] (7.1) The employer shall, immediately after being informed of a refusal under subsection (6), investigate the matter in the presence of the employee who reported it. Immediately after concluding the investigation, the employer shall prepare a written report setting out the results of the investigation. … (7.1) Saisi du rapport fait en application du paragraphe (6), l’employeur fait enquête sans délai en présence de l’employé.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-30", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 75–79", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Dès qu’il l’a terminée, il rédige un rapport dans lequel figurent les résultats de son enquête. […]\n\nThis Board’s mandate to hear complaints made under s. 133 of the Code is set out in s. 240 of the Act, which provides that the Board deals with complaints made under s. 133 of the Code in respect of the federal public service and may order an employer to remedy the situation pursuant to s. 134 of the Code.\n\nOther disputes that can arise under Part II of the Code in respect of the federal public service are not within the Board’s mandate. For example, if an employee refuses to do work that the employee believes to be dangerous, and his or her employer determines that there is no danger, the employee’s appeal process (under ss. 128 and 129) does not end up before this Board.\n\nWhile the distinction is legally clear, in practice, this can present some challenges.\n\nIn some cases, the same underlying set of events and facts could give rise to two or more different complaint processes, raising distinct legal questions and ending up before different decision makers.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-31", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 80–82", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As already noted, in this particular case, the question of whether Mr. Burlacu was subjected to workplace violence is the issue of his workplace-violence notice of February 19, 2019, which is to be investigated by a competent person. The question of whether there was a danger in the workplace justifying Mr. Burlacu’s refusal of work on March 5, 2019, went through three stages of investigation, ultimately ending up before the Occupational Health and Safety Tribunal of Canada in Burlacu 2021 (OHSTC). Mr. Burlacu’s complaints of harassment have been the subjects of grievances denied by the CBSA. He has sought judicial review of at least one of those grievance decisions before the Federal Court, and that matter is now being appealed before the Federal Court of Appeal.\n\nWhen there are distinctive processes emerging from the same set of events, the Board must sort out which events relate to the provisions set out at s. 147 of the Code from those that are not relevant to it. At the same time, it must avoid reaching conclusions on matters that must be decided by other decision makers.\n\nThe respondent argued that the standard test applied by the Board in complaints involving s. 133 of the Code was established in Vallée at para. 64, which reads as follows: 64 Thus, the complainant would have to demonstrate that: 1. he exercised his rights under Part II of the [Code] (section 147); 2. he suffered reprisals (sections 133 and 147 of the [Code]); 3. these reprisals are of a disciplinary nature, as defined in the [Code] (section 147); and 4. there is a direct link between his exercising of his rights and the actions taken against him.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-32", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 83–84", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The respondent noted that the complainant in Vallée had not exercised his right to refuse unsafe work, and therefore, the reverse burden of proof did not apply in that matter. It argued that in the context of a complaint made under s. 133 of the Code in relation with a s. 128 work refusal, the test set out in White v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 63 “White 2013”, would apply. That test, at paragraph 142, reads as follows: 142 The burden established by subsection 133(6) of the Code, which is proving that a contravention of section 147 did not occur, will be satisfied by the respondent if it can establish any one of the following: 1. The complainant did not act in accordance with section 128. 2. The respondent neither disciplined nor financially penalized the complainant. 3. If the respondent either disciplined or financially penalized the complainant, it was not in any way related to the complainant exercising his rights under section 128 of the Code.\n\nThe complainant argued that Vallée should not be applied because of the issue of the reserve burden of proof. He did not dispute the use of White 2013 as the test for his complaint, except that he argued that steps 2 and 3 would need to be broadened to include the threat of discipline and not limited to situations involving a financial penalty. He agreed with the third criterion in White 2013 and said that in this case, the respondent must demonstrate that the threat of discipline is “not in any way related” to the exercising of his rights under the Code.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-33", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 85–86", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant argued the Board could also use an alternative test, similar to White 2013, set out as follows by the Canada Industrial Relations Board (CIRB) in Bah v. Royal Bank of Canada, 2018 CIRB 867 at para. 33: [33] Thus, the [CIRB] must determine whether the employer took retaliatory action, which is prohibited under section 147 of the Code. In Paquet, 2013 CIRB 691, the [CIRB] established a three-step analysis to determine whether a violation of section 147 of the Code has occurred. If we apply these steps to this matter, the following questions arise: · Did the employer impose, or threaten to impose, discipline on the complainant? · Was the complainant participating in a process under Part II of the Code? · Did a nexus exist between the Part II process and the disciplinary action?\n\nI disagree with the complainant that Vallée is to be dispensed with as a test simply because that case did not involve a reverse onus on the respondent. Vallée has been applied by this Board in many cases in which the reverse onus did apply. See, for example, Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40 at para. 75, Nash v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 4 at para. 77, Vanegas v. Treasury Board (Correctional Service of Canada), 2018 FPSLREB 60 at para. 65, and Pezze v. Treasury Board (Department of Natural Resources), 2020 FPSLREB 37 at para. 7.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-34", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 87–88", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At the same time, I agree that Vallée has some limitations. The wording of the first and fourth criteria in Vallée are too narrowly focused on the “exercising of … rights” under Part II of the Code. While the first part of s. 147 does speak about the exercising of rights, the latter part of s. 147 prohibits reprisals when an employee “… has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part” [emphasis added] (see s. 147(c)). The enquiry with regards to the first and fourth criteria of Vallée must therefore encompass any actions taken in accordance with, or in furtherance of, Part II of the Code, not just those that involve the exercising of rights.\n\nI note that the third criterion in Vallée is also narrower than the wording of s. 147, which speaks not only of reprisals, but of threat of reprisals. As argued by the complainant, this is also a limitation of the second criterion set out in White 2013. In that regard, it is also important to note that not all reprisals are financial in nature. I agree with the principle articulated in Chaves v. Treasury Board (Correctional Service Canada), 2005 PSLRB 45, in which the Board concluded, at paragraph 72, as follows: [72] … The intent and goal of the [Code provisions] are to ensure a safe workplace for employees and the “whistle blowing” provisions of the [Code] would be rendered meaningless if the employer were allowed to take action against an employee, as long as that action did not result in a financial penalty for the employee.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-35", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 89–90", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "However, when it comes to the critical fourth criterion in Vallée, I think that the preponderance of the case law favours the careful consideration of whether a direct link exists between the exercise of rights or taking of action under the Code and a respondent’s alleged reprisal action. In other words, as stated in section 147 of the Code, the question is whether an employer has taken the alleged retaliatory action because an employee has acted in accordance with, or in furtherance of, Part II of the Code. Thus, I find that the fourth criterion in Vallée is more appropriate than the third criterion in White 2013, which requires the respondent to demonstrate that the discipline “… was not in any way related to the complainant exercising his rights under section 128 of the Code” [emphasis added] (at paragraph 142).\n\nIt is worth noting that the Board in White 2013 did not actually apply that criterion to the matter before it. The Board rejected the complaint at step 1 of its three-part test on the basis that Mr. White had no reasonable cause to refuse work (see paragraph 179). Therefore, no one actually knows if the Board would have applied the third criterion in White 2013 differently than the fourth criterion in Vallée.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-36", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 91–92", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "For similar reasons, I think the third criterion in Bah (“Did a nexus exist between the Part II process and the disciplinary action?”; at paragraph 33) must be considered in light of the actual wording of s. 147. More is required than simply “a nexus”. Section 147 states that an employer is prohibited from making a reprisal “… because the employee … (c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part” [emphasis added]. This is more than simply establishing a relationship between the two events. What is required is a careful weighing of the facts to see whether there is a causal link between the discipline made or threatened and the employee’s exercise of rights under the Code, or his or her other actions taken under the Code.\n\nThis approach is reflected in the preponderance of the case law I have considered. For example, in Vanegas, at para. 67, the Board applied Vallée and stated, “Retaliatory action must however be inextricably linked to the complainant’s exercise of her rights under section 128 of the [Code] …” [emphasis added]. In that case, a correctional officer who participated in a work refusal was required to stay on site for a period of 45 minutes, cutting into her scheduled vacation time. The Board concluded that this action was neither retaliatory in nature nor an act of reprisal (see paragraph 75).", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-37", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 93–95", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In Pezze (at paragraph 43), the Board confirmed that close proximity in time between the exercise of a right under the Code and the administration of discipline is not, in and of itself, proof of a violation of s. 147. That complaint was about a letter of discipline issued at the time of a work refusal under the Code. However, as the Board determined, the letter was not linked to the work refusal but was issued for unprofessional and disrespectful comments.\n\nThe Board in Pezze followed an earlier decision, Sousa-Dias v. Treasury Board (Canada Border Services Agency), 2017 PSLREB 62, in which Mr. Sousa-Dias had received a one-day suspension for refusing to attend a meeting to discuss a work refusal. In that decision, the Board concluded that the discipline was for insubordination and that it was linked to a poor labour-management environment, and it stated, “This lack of respect carried over into the work-refusal process but was not linked to that process” (at paragraph 131).\n\nIn Martin-Ivie, the Board allowed the complaint made under s. 133 of the Code. Nevertheless, in the reasoning, the Board distinguished a reprisal prohibited under s. 147 from discipline administered when an employee violates an employer’s code of conduct, at paragraph 59, as follows: 59 If the story ended there, I would have no qualms finding in favour of the respondent. Instituting an investigation to look into a possible breach of an employer policy is not, in and of itself, in my opinion a threat of discipline. An employer has every right to discipline an employee for a breach of its policies. The complainant cannot hide behind the exercise of her rights under the Code to avoid disciplinary action which may result from actions which are a violation of the employer’s code of conduct.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-38", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 96–99", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Having considered the parties’ arguments, the wording of s. 147 of the Code, and the case law, I find it more useful to reformulate and simplify the principles in Vallée as follows: 1. Has the complainant acted in accordance with Part II of the Code or sought the enforcement of any of the provisions of that Part (section 147)? 2. Has the respondent taken against the complainant an action prohibited by section 147 of the Code (sections 133 and 147)? and 3. Is there a direct link between (a) the action taken against the complainant and (b) the complainant acting in accordance with Part II of the Code or seeking the enforcement of any of the provisions of that Part?\n\nIn this matter, there is no dispute between the parties that the complainant has properly invoked, pursuant to s. 128(1)(c) of the Code, his right to refuse work that he believed to be a danger and that he has notified his employer of that, pursuant to s. 128(6). Further, there is no dispute between the parties that the burden of proof in this matter lies with the respondent, pursuant to s. 133(6). Procedurally, the case proceeded on that basis, with the respondent leading in both evidence and argument.\n\nAs discussed, there is no dispute between the parties that Mr. Burlacu exercised his rights under the Code, meeting criterion #1. On February 19, 2019, he reported workplace violence, which at the time was provided for in Part XX of the Canada Occupational Health and Safety Regulations. (The Code has since been amended to provide for a right to complain about workplace violence).\n\nFurthermore, on March 4, 2019, Mr. Burlacu exercised his right to refuse work he considered a danger to his health and safety.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-39", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 100–102", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On March 8, 2019, after several email exchanges between Mr. Burlacu and Mr. LeFrank, the complainant accepted as an interim and temporary solution the change in reporting relationship to Mr. Bush and abandoned his work refusal. However, on March 13, 2019, after a further exchange of emails about the status of his work refusal, the complainant reiterated his right to refuse dangerous work. That work refusal was still in place on March 19, when Mr. LeFrank ordered Mr. Burlacu to report to Mr. Bush or face possible disciplinary action.\n\nAs I have already concluded, given that a work refusal was in place, the reverse burden of proof as outlined in s. 133(6) applies. There is no dispute between the parties on that point.\n\nThe respondent argued that Mr. LeFrank’s email of March 19, 2019, was not a threat of discipline but merely a “caution” of the consequences Mr. Burlacu would face if he continued to challenge the change in reporting relationship to Mr. Bush. This argument was related directly to Mr. LeFrank’s testimony about the intention of his email. He testified that he wanted to caution Mr. Burlacu about the importance of following the directions he was providing, as his supervisor. It cited Nash, at paras. 79 to 81, for authority that an employer can caution an employee for refusing to perform duties and for the principle that the Board can distinguish between a threat and a caution.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-40", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 103–106", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant argued that after receiving Mr. LeFrank’s email, he had no choice but to comply with it. He perceived the email as a threat, and in email communications to Mr. LeFrank on March 24 and 25, 2019, he described it as a threat. Mr. LeFrank never corrected his characterization of the email as a threat; at the time of the events, Mr. LeFrank could have clarified his statement as a caution but did not.\n\nFor the purposes of applying the second criterion set out earlier in this decision, I find that there is little to distinguish a “caution” from a “threat”. The issue that I have to determine is whether the respondent has taken against the complainant an action prohibited by section 147 of the Code. What Mr. LeFrank called a caution, Mr. Burlacu took as a threat. Either way, the result is the same: “If you continue with X behaviour, I may impose result Y on you.”\n\nI find that the email of March 19, 2019, amounted to an action prohibited by section 147 of the Code, meeting the second criterion set out earlier. The respondent’s argument about Mr. LeFrank’s intent behind the email are best taken up during the third and final part of the analysis.\n\nI turn now to the heart of this matter, which is whether there is a direct link between the threat contained in Mr. LeFrank’s email and Mr. Burlacu’s actions in accordance with, or furtherance of, Part II of the Code. As discussed, given the reverse onus that applies to the respondent, it was up to the respondent to demonstrate that, on a balance of probabilities, the threat was not made because Mr. Burlacu had exercised his right to refuse work that he considered dangerous.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-41", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 107–110", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "It is useful to repeat the key phrases in Mr. LeFrank’s email to the complainant of March 19, 2019: “The situation is clear. You will report immediately to Mr. Bush. Failure to comply with this direction may result in disciplinary action as I find it to be insubordination.”\n\nWere I to follow the third criterion set out in White 2013 and Bah, as argued by the complainant, the respondent might have a harder time meeting its burden. Following Mr. Burlacu’s workplace-violence notice and his subsequent work refusal, he and Mr. LeFrank engaged in extended discussions, both in person and by email, about the interim measures to be put into place to provide the complainant with a safe work environment. These discussions touched on the reasons for Mr. Burlacu’s actions under the Code and the employer’s obligations and authorities under the Code. The March 19 email was, effectively, the culmination of those discussions. To suggest that the email was “not in any way related” to the issues about the Code or that “a nexus” did not exist between the threat of discipline and Mr. Burlacu’s exercise of rights would fly in the face of these basic facts.\n\nHowever, the issue is whether there is a causation, or put in the words used in s. 147 of the Code, whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code.\n\nI find that the respondent has met the burden of demonstrating that there is not a causal link between the threat of discipline in this case and Mr. Burlacu’s actions in accordance with, or in furtherance of, Part II of the Code, for the following reasons.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-42", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 111", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "First, I consider the context of Mr. LeFrank’s email and the words he used in it. Once it became clear that Ms. Spicer and Mr. Ghaani were related to the workplace-violence notice, Mr. LeFrank sought to put into place a change in reporting relationship. In meetings and via several emails, Mr. Burlacu sought other alternatives, such as reporting directly to Mr. LeFrank or being granted leave with pay, but Mr. LeFrank did not approve of those. He decided that Mr. Burlacu should report to Mr. Bush. During the exchange of several other emails, they then discussed the terms of that reporting relationship. On March 8, the complainant agreed to the change in reporting relationship as a temporary and interim measure and abandoned his work refusal. However, after Mr. LeFrank’s email of March 12, in which he sought clarification on the status of the work refusal, Mr. Burlacu reiterated his work refusal and began to question Mr. LeFrank again on why the change in reporting relationship was required. His emails said that he would not report to Mr. Bush unless there was a direct order to do so.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-43", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 112–114", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "What the context shows is that the threat of discipline was made following a prolonged exchange of emails between the 2 men in which Mr. Burlacu continued to question or challenge the change in reporting relationship to Mr. Bush and Mr. LeFrank’s managerial authority to do so. This occurred multiple times over a period of nearly 2 weeks, even after Mr. Burlacu said that he would require a direct order and after Mr. LeFrank made that direct order. The last email from Mr. Burlacu was sent on March 19, 2019, at 5:41 p.m., and Mr. LeFrank’s reply came 13 minutes later. The words he used were precise. He clearly conveyed to Mr. Burlacu the unambiguous direction to report to Mr. Bush. And he said, “Failure to comply with this direction may result in disciplinary action as I find it to be insubordination.”\n\nOn the basis of their plain meaning, and when considered in context, what the words used to convey Mr. LeFrank’s direction in the email suggest is that the threat of discipline was made because Mr. LeFrank found Mr. Burlacu’s behaviour to be insubordinate.\n\nI wish to emphasize that the question in front of me is not whether Mr. Burlacu’s behaviour was insubordinate. I need not conclude that his behaviour was insubordinate; nor do I need to assess whether Mr. LeFrank’s view of the situation was justified. Rather, the issue that I must determine is whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code. On that point, I find Mr. LeFrank’s testimony to be credible with regards to his considering that Mr. Burlacu was insubordinate at the time.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-44", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 115–117", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Second, I take account of Mr. LeFrank’s testimony that he was not in any way trying to dissuade the complainant from refusing work or acting in accordance with, or in furtherance of, Part II of the Code. While he did not fully understand why Mr. Burlacu felt that he had been subjected to workplace violence, once he knew who was involved, he began searching for an alternative reporting relationship. Once the work refusal was made, the change was put into place as soon as possible. Mr. LeFrank testified that there were a limited number of options, as there were only four managers to choose from, and that he wanted someone with strong management experience to supervise Mr. Burlacu, as well as a meaningful work situation for him.\n\nAccording to Mr. LeFrank, the reason for the change in reporting relationship was to separate Mr. Burlacu from those managers who related to the workplace-violence notice: Ms. Spicer and Mr. Ghaani. The need for the change was reinforced after Mr. Burlacu alleged that the reasons for his work refusal were inextricably linked with the workplace-violence notice.\n\nI find Mr. LeFrank’s explanation of his intentions credible and plausible. He wanted Mr. Burlacu to be working and sought to temporarily separate him from his former managers. He thought that the reporting relationship to Mr. Bush would provide a safe working environment. I note that Mr. Burlacu never said that reporting to Mr. Bush represented a potential danger. Nor did he name Mr. Bush as a person related to his workplace-violence notice. Nor was Mr. Bush named as a respondent in any of the harassment complaints.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-45", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 118–119", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Quite simply, in light of all the circumstances put in evidence before the Board, I find it more probable than not that Mr. LeFrank wanted Mr. Burlacu to comply with the direction to report to Mr. Bush, and his threat of discipline was made because of Mr. Burlacu’s continued resistance to that direction. I do find that the tone of his email conveys a sense of exasperation about the ongoing nature of Mr. Burlacu’s emails about the interim solution. However, I do not find that surprising, particularly looking at it in hindsight in that the exchange happened within the last 10 business days of Mr. LeFrank’s career with the CBSA.\n\nI note as well that Mr. LeFrank’s testimony was made as a retired person, three years after the events in question. Despite that, he testified with clarity about his intentions in the decisions he made in 2019 and nevertheless said that he fully supports Mr. Burlacu’s right to seek recourse under the Code and before this Board. Nothing in the evidence before the Board puts that testimony into question.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-46", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 120–121", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Third, I wish to highlight Mr. Burlacu’s testimony about the issue of CBSA management viewing his behaviour as insubordinate. In his testimony, he referenced Mr. Ghaani’s threat of discipline in their discussion of his leave requests in their exchange of emails from February 7 to 13, 2019. He also brought me to the content of the harassment complaint he made on March 27, 2019, against Ms. Spicer. That complaint, which, including attachments, numbered some 45 pages in length, covered a period from September of 2017 through January of 2019. In very general terms, the complaint concerns Ms. Spicer’s approach to managing Mr. Burlacu, and many conflicts with respect to management’s approval or rejection of leave requests made by the complainant. Within the complaint, he alleged that some CBSA Labour Relations staff had exchanged emails that stated that he “… often questions management decisions to the point of near insubordination.” He alleged that Labour Relation’s perception of him was shared with Ms. Spicer. He alleged that Ms. Spicer wrote an email in September 2018, accusing him of “bordering on insubordination”. He also included some of these same allegations in a harassment complaint made on January 31, 2019, against the two Labour Relations staff members involved in that exchange of emails.\n\nHe argued that while Mr. LeFrank might not have seen those documents before March 19, 2019, he should have at least been aware of the fact that some managers and Labour Relations staff had seen the complainant’s behaviour as insubordinate and that therefore, he would take the threat of discipline seriously.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-47", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 122–123", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In my assessment, Mr. Burlacu’s evidence and argument on this point further suggest a causal nexus between the threat of discipline and Mr. LeFrank’s opinion that Mr. Burlacu was being insubordinate. Consequently, they reinforce the respondent’s contention that the threat of discipline was because of perceived insubordination and not related to the complainant’s actions under the Code.\n\nAgain, I make no assessment of whether Mr. Burlacu’s behaviour amounted to insubordination. As Mr. Burlacu himself testified, he was not actually disciplined by the CBSA at the time for insubordination or since. The issue in this case is only to establish the cause behind Mr. LeFrank’s threat of discipline.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-48", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 124–125", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The respondent cited Nash for its arguments that Mr. LeFrank’s email was merely a caution and that a caution about not reporting to work should not be considered disciplinary. Although I have found Mr. LeFrank’s email to be more than a caution, Nash is nevertheless instructive about the legitimacy of an employer directing an employee to work, even in the context of the exercising of a right to refuse dangerous work. The following passage from Nash, at para. 82, is analogous to the situation in this case: 82 A disciplinary sanction must at least have the potential to prejudicially affect an employee. In this case, the grievor being cautioned that if he refused to do any work, and not just that for which he had exercised his rights under the Code, he would be sent home, in my opinion is not disciplinary in the context of either of the work refusals. A reasonable employer can expect an employee in the workplace to perform the duties of his or her position. A failure on the employee’s part to meet his or her employment obligations warrants a caution that he or she may end up without pay for that failure. Such a caution is not disciplinary. Furthermore, the employer was entitled to assign legitimate work to the grievor regardless of whether or not he had previously invoked his rights under the Code in relation to other work. [Emphasis added]\n\nFor similar conclusions, see also Vanegas, at para. 77, Nash, at para. 86, Sousa-Dias, at para. 130, and Pezze, at para. 42.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-49", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 126–127", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Although the employer bears the burden of disproving the complaint in this case, the complainant nevertheless made a series of arguments in response to those of the respondent to try to establish that there was indeed a direct relationship between the threat of discipline and his acting in accordance with, or in furtherance of, Part II of the Code. However, the issue before me is whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code. Many of these arguments relate to the larger events surrounding the workplace conflict. I find that most of these arguments are not relevant to the issues before me; those that are relevant do not change my assessment. Rather than taking these in the order presented by Mr. Burlacu, I will try to take these roughly in chronological order.\n\nFirst, the complainant argued that Mr. LeFrank unnecessarily delayed putting into place temporary measures after the workplace-violence notice was made. The complaint was made on February 19, and the first time the reporting relationship to Mr. Bush was mentioned in an email was March 8. This undermines Mr. LeFrank’s explanation of the reasons for the change in reporting relationship, the complainant argued. He referenced Stiermann v. Treasury Board (Department of Industry), 2019 FPSLREB 52 at para. 53, for the principle that following a workplace-violence notice, an employer must act quickly. If the purpose was to keep him safe, given the workplace-violence notice, why the delay?", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-50", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 128–129", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I do not find the delay significant. After his workplace-violence notice, Mr. Burlacu was granted leave for February 19 and 20. He was in the office on February 21 and 22, during which time he met twice with Mr. LeFrank. He was on a compressed workday off on February 25 and on sick leave from February 26 to March 2. On Monday, March 4, he returned to work, and only at that time did he tell Mr. LeFrank who were the persons involved in his workplace-violence notice. He filed a work refusal the same day. The reporting relationship to Mr. Bush was detailed in Mr. LeFrank’s email to Mr. Burlacu of March 5, 2019, at 3:47 p.m. Even if this were a significant delay, I do not see how this would help shed any light on the reasons for Mr. LeFrank’s threat of discipline.\n\nSecond, the complainant challenged Mr. LeFrank’s reasons for not granting him the alternative of leave with pay, at least pending the outcome of the informal-conflict-management process. Mr. LeFrank had written and testified that he did not have authority to grant such leave. But he could not name a document that limited his authority, the complainant argued. He added that leave could have been granted under the collective agreement and argued that before Mr. LeFrank did something the law prohibited (forcing a change in reporting relationship), he should have done everything the law allowed (granting leave with pay). Instead, he imposed the reporting relationship to Mr. Bush, Mr. Burlacu argued.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-51", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 130–132", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I do not find this argument relevant to the issue before me. Mr. Burlacu had the option of filing a grievance if he felt that the denial of his leave request was unreasonable. An employer’s interpretation and application of the collective agreement can always be challenged by way of a grievance, with the employee’s bargaining agent’s support.\n\nThird, the complainant argued that he made a reasonable proposal to report directly to Mr. LeFrank as an interim measure. Mr. LeFrank testified that he did not agree to the direct report because he already had a large number of direct and indirect reports, he did not think that he could respond quickly enough to the volume of emails, and he did not want to jeopardize the informal-conflict-management session scheduled for late March 2019, in which he would be representing the CBSA in an effort to resolve Mr. Burlacu’s disputes.\n\nIn my view, Mr. LeFrank’s reasons for not accepting a direct reporting relationship seem perfectly reasonable, particularly given his pending retirement. Nevertheless, I do not find this argument relevant to the issue before me. I am not seized with a grievance about Mr. Burlacu having to report to Mr. Bush. Nor am I seized with a grievance that challenges the authority of Mr. LeFrank to make a change in reporting relationship to Mr. Bush. Mr. Burlacu suggested that such a change might be in violation of his appointment under the PSEA, but that has no bearing on the issue before me, which is whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code. The interpretation or application of the PSEA cannot help to answer that question.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-52", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 133", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Fourth, the complainant argued that Mr. LeFrank failed to properly explain why the change in reporting relationship was consistent with the employer’s rights and responsibilities under the Code. He referred to their email exchanges of March 5 to 19, 2019. In those, Mr. LeFrank first cited s. 129(5), but Mr. Burlacu pointed out that that section applies only to the exercise of rights under s. 129, not those under s. 128. Mr. LeFrank then pointed out what he called the “general duty clause” at s. 124 of the Code, which reads, “[the] employer shall ensure that the health and safety at work of every person employed by the employer is protected.” Mr. Burlacu challenged Mr. LeFrank’s assumption that the duty listed in s. 124 provided him with the authority to remove the complainant from his position. Mr. LeFrank also cited s. 128.1(3) as authority. Mr. Burlacu argued that this section applies only to workers on shift, which did not apply to his case.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-53", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 134–135", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "There is no doubt in my mind that Mr. Burlacu had closely studied the Code and that during his email exchanges with Mr. LeFrank, he demonstrated a better understanding of some of its details. However, whether or not the employer had the authority to make the change in reporting relationship does not help determining whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code. Mr. Burlacu clearly was seeking alternative solutions to a change in reporting relationship, but ultimately, it is up to management to put into place a temporary solution when faced with a workplace-violence notice. The Board is not seized with either assessing Mr. LeFrank’s understanding of the nuances of the Code or assessing whether the solution chosen was the best one under the circumstances. The complainant’s argument sheds no light on the issue before the Board. Further, Mr. Burlacu could have challenged the exercise of Mr. LeFrank’s managerial authority by way of a grievance.\n\nFifth, the complainant argued that I should consider the subject line of Mr. LeFrank’s email of March 19, 2019: “Re: Continued refusal – subsection 128(9) of the Canada Labour Code”. This establishes a clear link between the threat of discipline and his actions in accordance with, or in furtherance of, Part II of the Code, he said.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-54", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 136–138", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I disagree. The entire email chain entered into evidence, from March 5 to 19, 2019, consisted of 12 emails, each of which was clearly linked to the one before it. When the email chain started, with an email written by Mr. LeFrank, the subject line was blank. The subject line in question was added by the complainant himself in one of his response emails. The subject line does not change my assessment that Mr. LeFrank’s threat of discipline was because of perceived insubordination.\n\nSixth, the complainant argued that in the further exchange of emails between him and Mr. LeFrank on March 24 and 25, 2019, he clearly articulated his view that he had compiled with reporting to Mr. Bush only because Mr. LeFrank had made a threat of discipline, in violation of the Code. He argued that if Mr. LeFrank had not intended to make a threat, he should have corrected the record then. This is evidence of a direct link between the threat of discipline and his actions in accordance with, or in furtherance of, Part II of the Code, he argued.\n\nI disagree. Mr. LeFrank could not recall the final one of those emails, which is not surprising given the fact that at the time, he was in his last days of work for the CBSA, and given the passage of time. Even if he had fully absorbed the content of Mr. Burlacu’s emails, I place no value in his failure to try to change Mr. Burlacu’s views. The actual subject being discussed by Mr. Burlacu and Mr. LeFrank in those emails was whether the work refusal was still in effect and whether it would then be referred to the Work Place Health and Safety Committee for review.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-55", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 139–140", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Seventh, the complainant argued that Mr. LeFrank had no reason to send the email he did on March 12, 2019, except that he was trying to force a finding that there was no danger in the workplace, and that this intention was confirmed in the events that followed their March 24 and 25, 2019, exchange. On March 8, Mr. Burlacu had abandoned his work refusal; on March 11, he started reporting to Mr. Bush. The issue should have ended there, he argued. The fact that it did not end there demonstrated that Mr. LeFrank was trying not to protect his health and safety but to compel him into an agreement that the workplace did not represent a danger, he said. He argued that Mr. LeFrank was engaged in a deliberate attempt to achieve a finding of “no danger”, because the ministerial designate at Labour Program could rule “no danger” because there had been a temporary measure put in place. It was for those reasons that he refused to agree to the temporary measure and reiterated his work refusal. Throughout the process, Mr. LeFrank did not properly follow the provisions of the Code, and included in these errors was the threat of discipline made on March 19, the complainant argued.\n\nThe respondent argued that Mr. LeFrank was making his best effort to be compliant with the Code. He wanted to ensure that Mr. Burlacu agreed that the work refusal was resolved, because if not, he wanted to refer the matter to the Work Place Health and Safety Committee and later the ministerial designate at the Labour Program. Mr. Burlacu’s response of March 13 made it clear that the issue was not resolved, and there was a point of urgency in ensuring a safer work environment through the change in reporting relationship.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-56", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 141", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Sorting out this exchange of emails and the events that follow would involve covering much of the same events and arguments made before the Occupational Health and Safety Tribunal of Canada in Burlacu 2021 (OHSTC). That decision already clarifies the appropriate distinction between the workplace-violence-notice process and the work-refusal process (see paragraph 66). That decision also contains a conclusion that Mr. Burlacu demonstrates a remarkable technical understanding of the provisions of the Code (see paragraph 67), a conclusion I fully concur with. His understanding prevailed before that tribunal, which determined that the ministerial designate at the Labour Program did not have jurisdiction to reach a finding of “no danger” because only Mr. Burlacu can make the proper referral to the ministerial delegate. In essence, what the decision says is that it was not up to Mr. LeFrank to move the work refusal through to that stage; doing so would have been Mr. Burlacu’s decision.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-57", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 142", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Does that conclusion undermine the respondent’s argument that Mr. LeFrank’s email of March 19, 2019, was not because of Mr. Burlacu’s actions in accordance with, or in furtherance of, Part II of the Code? I do not find that it does. It is useful to review the first major paragraph in Mr. LeFrank’s email of March 12, 2019, which reads as follows: … As a point of clarification, having received my work refusal stage one investigation report are you agreeing with my findings that there is no danger in which case there would be no need for an interim temporary reporting arrangement or do you disagree with my findings, continue to require an interim temporary arrangement, and the work refusal continues for the regular reporting relationship of your substantive position? This is important for me to know in order to refer your work refusal to a labour investigator that will likely conclude more quickly than the violence in the workplace complaint. …", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-58", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "para 143", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. LeFrank testified that while he did not completely understand why Mr. Burlacu felt that he was subject to workplace violence, or why his work was dangerous, he accepted that that is how Mr. Burlacu felt. He wanted to have the issue resolved, and in the meantime, he wanted Mr. Burlacu to have a safe work environment. His email of March 12 reflected a motivation of obtaining a third-party conclusion more quickly. That might not have been the best choice of action, but, on a balance of probabilities, I can find no malice in it or any attempt on Mr. LeFrank’s part to stop Mr. Burlacu from acting in accordance with, or in furtherance of, Part II of the Code. Furthermore, while Mr. Burlacu’s emails of March 24 and 25 did not request the referral of the work refusal to the Labour Program, they also expressed a clear disagreement with the finding of “No Danger”. Once again, I accept Mr. LeFrank’s testimony that he was looking for a solution, taking into account both the workplace-violence notice and the work refusal, even though the processes were different. I find it more probable than not that he wanted the interim reporting solution in place until a resolution could be found, and he wanted to see the issue resolved as quickly as possible.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-59", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 144–145", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Eighth, the complainant argued that subsequent changes made in reporting relationships at the CBSA reveal that the order that he report to Mr. Bush was not made in his best interests. He testified that in June of 2019, Ms. Spicer was made the acting director general for two weeks. As the director general, she oversaw Mr. Bush, which placed Mr. Burlacu back into an indirect report relationship to her. The CBSA did not proactively address this. Mr. Burlacu had to raise it as an issue, he said. Rather than granting him leave with pay for a week, it made yet another reporting change. This indicates that the CBSA was not interested in his health and safety, he argued. A similar issue happened in the fall of 2019, he said, when Ms. Spicer was placed in an acting vice-president role at the CBSA for two weeks. No protective measures were put into place then, he argued.\n\nI am entirely unconvinced that changes in reporting relationships made by the CBSA in June and November of 2019 shed any light on whether Mr. LeFrank violated s. 147 of the Code in March of 2019. Mr. Burlacu clearly had concerns about being brought back into an indirect reporting relationship with Ms. Spicer, and he had opportunities to raise those concerns. Whether or not the CBSA’s actions after the complaint at hand was filed on April 30, 2019, were appropriate or sufficient is not an issue before me. These events occurred entirely after the facts relevant to this case. Further, there is no evidence before me to suggest that Mr. LeFrank was aware of any CBSA’s possible later actions at the time of his March 19, 2019, email.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-60", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 146–148", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Ninth, reference was made during the course of testimony to the fact that there have been significant delays commencing an investigation of Mr. Burlacu’s February 19, 2019, workplace-violence notice. At the time of the hearing, an investigation of the complaint by a competent person had still not commenced. Testimony revealed that there were delays in the selection of a competent person and that although a person has been found, at the time of the hearing, there remained outstanding issues with respect to starting the investigation.\n\nWhile a delay of this duration may not be ideal, the full facts and causes of that delay are not relevant to the determination of this complaint, which is about whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code.\n\nIn this matter, the respondent bore the burden of proving that its threat of discipline was not because the complainant was acting in accordance with, or in furtherance of, Part II of the Code. I am satisfied that on a balance of probabilities, the threat of discipline was made because Mr. LeFrank felt that Mr. Burlacu’s ongoing resistance to reporting to Mr. Bush amounted to insubordination. The threat was not made because the complainant was acting in accordance with, or in furtherance of, Part II of the Code. None of the complainant’s multiple arguments that he has been subject to several forms of injustice at the hands of the CBSA have discredited the respondent’s evidence. As such, I find the respondent has established that it did not violate s. 147 of the Code.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-61", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 149–150", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Because of the Board’s limited mandate under the Code, it is not my role to get to the heart of the conflict Mr. Burlacu has with his employer. Much of it appears to be rooted in how his managers responded to his leave requests, with either denials or challenges to his requests, and to other questions of how his work was being managed. Whether this amounted to workplace violence is a question to be addressed by the competent person.\n\nWhat is not clear is why Mr. Burlacu so strongly resisted reporting to Mr. Bush. Mr. Burlacu never alleged that he was or would be subject to workplace violence or harassment at the hands of Mr. Bush. On March 8, 2019, Mr. Burlacu accepted reporting to Mr. Bush as an interim measure and abandoned his work refusal. He then reiterated the work refusal on March 13, 2019, not because of any allegation that Mr. Bush represented a danger but because he disagreed with the content and questions of Mr. LeFrank’s email of March 12, 2019. He then strenuously resisted the change in reporting relationship multiple times over a period of several days. Mr. LeFrank felt that that resistance amounted to insubordination, which is why he stated that he would consider discipline if Mr. Burlacu continued to resist.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-62", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 151–153", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Burlacu stated that he did not want to be “pushed out of [his] unit”, but it is not clear whether he made a complaint about that. This is not such a complaint. Ultimately, the only clarity I could find is that Mr. Burlacu thought that the CBSA should have sought other alternative solutions to his complaints, such as allowing him to report to Mr. LeFrank or placing him on leave with pay pending the results of a mediation or an investigation. He also suggested before me that instead of moving him to a new manager, the CBSA could have allowed him to stay in his position and could have reassigned Mr. Ghaani and Ms. Spicer to new positions.\n\nI take note of information provided by the respondent that Ms. Spicer and Mr. Ghaani are no longer in the positions they occupied when Mr. Burlacu made his workplace-violence notice. From that point of view, it indicated that there would be no risk to Mr. Burlacu were the Board to uphold his complaint and return him to his previous position. This is also not relevant to the determination of the issue before me.\n\nMr. Burlacu has every right to seek recourse under the Code and through the grievance process, but he does not get to set the terms of how the employer responds to his many complaints and actions. The underlying fact is that he remains an employee of the CBSA, and it has the right to expect him to work. Given his multiple complaints against his former managers, Mr. Ghaani and Ms. Spicer, it is to be entirely understandable that it would separate him from them while the process is underway to investigate and rule on his complaint.", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-520948-63", - "doc_type": "caselaw", - "act_code": "2022 FPSLREB 51", - "act_short": "Burlacu", - "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", - "marginal_note": "paras 154–156", - "heading": "CBSA; occupational health and safety and staffing", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As I have noted, Mr. Burlacu has initiated multiple recourse processes in the form of complaints, grievances, and judicial reviews before different decision makers, all related to the same underlying issues affecting his work for the CBSA. This decision addresses only one small aspect of those issues.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe complaint is dismissed. June 22, 2022. David Orfald, a panel of the Federal Public Sector Labour Relations and Employment Board", - "current_to": "2022-06-22", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" - }, - { - "id": "fpslreb-483604-1", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 1–4", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor was employed as an indeterminate FB-02 (border services) officer trainee with the Canada Border Services Agency (CBSA) in the Officer Induction Development (OID) Program from January 13, 2014, until the termination of her employment on June 15, 2015, which she grieved. As of her termination, she was on probation.\n\nOn November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; PSLREBA) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (PSLREB) to replace the former Public Service Labour Relations Board (PSLRB) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40; EAP No. 2) also came into force (SI/2014-84). Pursuant to s. 396 of the EAP No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) as that Act read immediately before that day.\n\nOn June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the PSLREBA and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (FPSLRA).\n\nThis grievance is dismissed for the reasons that follow.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-2", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 5–6", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "A part of this grievance relates to the search and seizure of items in the car of the grievor’s brother. The police officer involved in this seizure testified, and the occurrence report was admitted as an exhibit. The police officer is now an undercover officer. The parties agreed that the officer’s identity should not be revealed in this decision and that the general occurrence report that refers to the officer should be sealed, in accordance with the test established in Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, and R. v. Mentuck, 2001 SCC 76, known commonly as the “Dagenais/Mentuck” test.\n\nIn Canada (Attorney General) v. Philps, 2019 FCA 240, at par. 23, the Federal Court of Appeal relied on the test set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, at paragraphs 48 and 53, where the Supreme Court considered its jurisprudence relating to publication bans in the criminal context in Dagenais and Mentuck, for determining whether to redact names in a proceeding before the Board. The Supreme Court held that in administrative proceedings, confidentiality orders should not be issued unless the order is necessary to prevent a serious risk to an important interest in the context of litigation because reasonably alternative measures will not prevent the risk. The Court also held that the risk in question must be “real and substantial”. In addition, the salutary effects of the confidentiality order, including the effects on the right of litigants to a fair trial, must outweigh its deleterious effects, including the effects on the right to free expression.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-3", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 7–9", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In Mentuck, the publication ban request related to the identities of undercover police officers, among other facts. In applying its test, the Court addressed the names and identities of undercover police officers as follows: 46 However, I accept that the publication of the names and identities of the officers in question would create a serious risk to the efficacy of current, similar operations. Given that the officers involved appear to go by their real names in the course of this undercover work, publishing their names could very easily alert targets that their apparent criminal associates are in fact police officers. Furthermore, since the operations in question have already been commenced, it would obviously be unreasonable for officers to adopt pseudonyms now. The targets already know their real names. Accordingly, I agree with Menzies J. that a ban on the publication of officers’ names is necessary and that there is no reasonable alternative. [Emphasis in the original]\n\nI therefore find that the anonymization and sealing order are necessary to prevent a serious risk to an important interest (police operations) that outweighs the right of the public to know the identity of the police officer and there is no other reasonable alternative to anonymizing the decision and sealing the exhibit. I find that the risk in question is “real and substantial”. I also find that the salutary effects of the confidentiality order, including the effects on the right to a fair hearing, outweigh its deleterious effects, including the effects on the right to free expression.\n\nAccordingly, I have identified the police officer in this decision by the initials “A.B.” I have also ordered that the occurrence report be sealed.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-4", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 10–13", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor disclosed to the employer as part of her case a grievance report prepared by her former representative on this grievance, which was the bargaining agent for the Border Services (FB) Group. The employer did not object to the introduction of this report and relied on it in its final arguments.\n\nIt is unusual for a grievance report to be introduced as evidence. This grievance report identifies the strengths and weaknesses of the grievance before the Board. It is the former representative’s assessment based on his/her review of the facts as set out by the grievor. The former representative’s assessment of the merits of a grievance is not relevant in the evidence portion of a grievance hearing as it is simply the former representative’s assessment. In this sense, it is more like submissions. Accordingly, it is not relevant evidence to the issues in the grievance before me and I have given it no weight.\n\nThere was no request for an exclusion of witnesses. Four witnesses testified for the employer, and the grievor testified.\n\nA witness for the employer was not available on the scheduled hearing days. The employer reserved its right to contact the witness by teleconference after the scheduled hearing days concluded. The grievor consented to this approach. After the hearing dates concluded, the employer’s counsel advised that it did not need to call the witness.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-5", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 14–16", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer relied on s. 62 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA) to terminate the grievor’s employment. That section provides as follows: 62 (1) While an employee is on probation, the deputy head of the organization may notify the employee that his or her employment will be terminated at the end of (a) the notice period established by regulations of the Treasury Board in respect of the class of employees of which that employee is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act, or (b) the notice period determined by the separate agency in respect of the class of employees of which that employee is a member, in the case of a separate agency to which the Commission has exclusive authority to make appointments, and the employee ceases to be an employee at the end of that notice period. Compensation in lieu of notice (2) Instead of notifying an employee under subsection (1), the deputy head may notify the employee that his or her employment will be terminated on the date specified by the deputy head and that they will be paid an amount equal to the salary they would have been paid during the notice period under that subsection. [Emphasis in the original]\n\nThe application of this provision is commonly referred to as a “rejection on probation”.\n\nThe FPSLRA sets out the jurisdiction to refer an individual grievance to adjudication. Section 211 states that any termination of employment under the PSEA cannot be referred to adjudication.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-6", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 17–18", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The jurisdiction of the Board to hear a rejection-on-probation grievance is limited. The Federal Court, in Chaudhry v. Canada (Attorney General), 2007 FC 389, set out the limited basis of the Board’s jurisdiction as follows: [51] In these circumstances, the employer satisfied the adjudicator that it had met the burden of proof which required it to show some evidence of an employment-related reason for a rejection on probation. In this regard see Canada (Attorney General) v. Leonarduzzi (2001), 205 F.T.R 238, at para. 37, where Lemieux J. wrote: Specifically, the employer need not establish a prima facie case nor just cause but simply some evidence the rejection was related to employment issues and not for any other purpose. … [53] Once the employer’s onus was met, the burden shifted to the employee to show bad faith. In this regard, the adjudicator concluded that the Applicant had not shown that the Rejection on Probation was a sham or made in bad faith.\n\nTello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134, at paragraph 111, sets out the shifting burdens of proof in a rejection on probation grievance. The employer must show that i) the grievor was on probation, ii) the probationary period was still in effect at the time of the termination, iii) she was given notice or compensation in lieu of notice, and iv) she was provided with a letter stating why she was rejected on probation. The burden then shifts to the grievor to demonstrate that the decision to terminate her employment by way of a rejection on probation was a sham, camouflage, or contrived reliance on the PSEA or that it was done in bad faith.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-7", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 19–22", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer relied on the grievor’s removal of protected documents from the workplace when she was a summer student (before her appointment as an FB-02 officer trainee) to support the rejection on probation. While she acknowledges that the documents were in her possession, she maintains that they ended up in her possession inadvertently. Her position is that she was rejected on probation based on discriminatory grounds and because she made a complaint about being photographed by the news media while on duty.\n\nIn the summary of evidence, I set out the grievor’s background and an overview of the CBSA’s OID program. I then summarize evidence on her performance assessments during the probationary period. I then summarize the alleged employment-related reason for the rejection on probation, the investigation of the allegation, and the termination of employment. I then turn to the allegations of a breach of human rights and the events that she relied on to support her position that the rejection on probation was a sham or camouflage.\n\nIn her testimony, the grievor referred to a narrative document that she had prepared. The employer did not object to her reliance on it and it was entered as an exhibit.\n\nThe grievor self-identifies as a Muslim and wears a hijab. She was employed by the CBSA as a summer student in 2012. In that role, she worked in the CBSA’s Corporate Services branch at Pearson International Airport (“Pearson”).", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-8", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 23–26", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Sharnreet Sandhu was the superintendent of Corporate Services at Pearson in the summer of 2012. She testified that the role of Corporate Services includes managing employee performance-management agreements and learning plans. She testified that the role of a summer student was as a “floater” and covering for those on leave. The role also involved clerical duties such as filing and photocopying. Superintendent Sandhu testified that the role included filing performance-management documents, as well as entering data in an electronic database related to learning plans.\n\nThe grievor testified that she was not given any training on the handling and storage requirements for sensitive information. Superintendent Sandhu testified that all summer students were provided with orientation training that would have included training on security and the high level of confidentiality required in the position. She also recalled meeting with the summer students and explaining the high level of confidentiality required of them.\n\nThe grievor was selected for the Officer Induction Training Program (OITP) in 2013, which is an online learning program followed by an 18-week in-residence program at the CBSA College in Rigaud, Quebec. This portion of the training program is unpaid, and the participants are not employees until they graduate.\n\nThe grievor graduated from the OITP in December 2013 and was offered a full-time appointment as an FB-02 officer trainee, starting January 13, 2014. Her work location was at Pearson in the Passenger Operations District.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-9", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "para 27", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The offer letter stated that the grievor was subject to a probationary period for the duration of the OID program or twelve months, whichever was longer, excluding any periods of leave without pay, full-time language training or leave with pay in excess of thirty consecutive days, in accordance with s. 61 of the PSEA. The duration of the OID program is a minimum of 12 months and a maximum of 18 months. Its length can be extended on a case-by-case basis at management’s discretion. At 12, 15, and 18 months, the officer trainee is evaluated based on an evaluation package. To be eligible for promotion, trainee officers are required to present evidence supporting their competency development, undergo a performance questionnaire quarterly review, and present proof of their successful completion of all core training. This evaluation package is reviewed by the Merit Review Board (MRB) and then the MRB provides a recommendation for promotion, further development, or for removal from the program. If at the time of the presentation of the Evaluation package the officer trainee has consistently demonstrated all required competencies and meets the FB-03 merit criteria, she will be recommended for appointment to a permanent FB-03 position.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-10", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 28–30", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "If an officer trainee is not successful at the 12-month mark or at the 15-month mark, an enhanced developmental plan is put together in consultation with the trainee, the OID program unit, and the trainee’s superintendent (supervisor). The plan is designed to support the trainee in developing the appropriate competencies and in performing at the required level. The officer trainee is then reassessed after an additional 3-month period (15 months and 18 months). If a trainee is not successful at the 18-month review, he or she is subject to removal from the OID program.\n\nThe grievor’s employment was not terminated because of her performance during the probationary period. I have included a summary of her performance only for the purpose of explaining the extension of her probationary period up to the time of the termination of her employment. She did not agree with some of the performance evaluations and provided testimony explaining the context of the evaluations and her explanations. In light of the fact that her performance during the probationary period was not a ground for her rejection on probation, I have not summarized that testimony.\n\nIn the grievor’s enhanced performance-development plan dated November 28, 2014 , it was noted that her performance to that date did not meet the requirements for appointment to the FB-03 level. It stated that “significant improvement” needed to be demonstrated for her to be considered for appointment at the 12-month mark of the OID program.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-11", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 31–36", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In the quarterly review dated December 20, 2014, the superintendent noted that the grievor had demonstrated some improvement over the previous quarter. The superintendent also noted that if she continued the momentum, she would meet all the expectations set out in the enhanced performance-development plan.\n\nOn January 15, 2015, the grievor was advised by Human Resources that she would continue in the OID program until the next time for assessment (at the 15-month mark), on April 13, 2015.\n\nAn Enhanced Performance Development Plan was prepared on February 4, 2015 and signed by the grievor on March 4, 2015.\n\nThe grievor was provided with a Performance Questionnaire prepared by her superintendent on April 2, 2015. It noted improvements in those areas that had been identified as requiring improvement as well as an isolated incident of poor performance that had not reoccurred (the superintendent noted that the grievor had “learned from her mistake”). The questionnaire was mostly positive and ended with “Good work Mariam!!”\n\nOn April 29, 2015, the grievor wrote an email to the OID program team noting that the 15-month assessment period had passed (April 13, 2015) and asking about the status of her participation in the OID program. On May 1, 2015, she received the following reply: …Senior management has advised us of a pending Labour Relations / Personal Security Investigation currently under way that needs to be resolved before proceeding with your acting assignment process under the OID Program. We will keep up-dated as the situation develops. …\n\nThe grievor received no other performance evaluation after this period and her evaluation package was not reviewed by the MRB.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-12", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 37–39", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On January 25, 2015, Constable A.B. stopped the grievor’s brother in his vehicle when the constable noticed that it had no visible licence plate. The occurrence report notes that on approaching the car, the constable first noticed a “strong odour” of marijuana (a controlled substance at that time). When the driver opened his window, the constable reported that there was evidence of marijuana, in plain view. He arrested the occupants of the car and conducted a search of the vehicle, which turned up a box that contained performance evaluations of FB officers from 2012 on letter-sized paper. The evaluations were marked “Protected” and contained the officers’ names as well as their personal record identification (PRI) numbers. The documents filed as exhibits in this hearing had the PRI numbers redacted. The parties agreed that the PRI numbers in the documents seized by Constable A.B. had not been redacted.\n\nAt the hearing, Constable A.B. identified the documents that he had retrieved from the vehicle. He testified that he was concerned enough about them to continue the investigation at the police station. The CBSA was contacted by a colleague of his and advised of the seized documents, which were returned to the CBSA the following day. The grievor’s brother was not charged with any drug offences and was released\n\nIn cross-examination, Constable A.B. was asked if the arrest had been lawful. He stated that he believed so. He disagreed with the assertion made by the grievor’s representative that he had not had sufficient grounds for an arrest. He also disagreed with the assertion that he needed a warrant to conduct a search of the vehicle.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-13", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 40–43", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Superintendent Sandhu testified that a PRI is a unique identifier. She also testified that performance evaluations were normally done on legal-sized paper. Superintendent Matthew Forrest, Superintendent of Corporate Operations, testified that a PRI is used to obtain salary information, for letters of employment, and for applying to other positions. He also stated that the performance evaluations contained phone numbers, which, along with an employee’s name, could be used in identity theft. The performance evaluations that were filed as exhibits in this hearing do not contain phone numbers of the employees – either their office phone number or their home phone number.\n\nOn February 17, 2015, the grievor received an emailed notification from Superintendent Forrest of a fact-finding meeting “regarding a security issue” on February 23, 2015. She was advised of her right to have a bargaining agent representative attend the meeting with her, in light of the fact that disciplinary action might result.\n\nThe grievor testified that when she received the notification, she was not aware of any security issues. She spoke to her bargaining agent representative, who asked if she was aware of any incident that management would want to investigate. She replied that she was not aware of any incident. She testified that she did not have regular communications with her brother before the incident.\n\nSuperintendent Forrest testified that the grievor’s representative did not ask for particulars before the meeting but that if he had, Superintendent Forrest would have explained “as far as [he] could”.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-14", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "para 44", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The fact-finding meeting took place on February 23, 2015. Superintendent Forrest was accompanied by a note-taker. The grievor attended with her bargaining agent representative. Superintendent Forrest prepared notes of the interview based on his notes and those of the note-taker immediately after the interview.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-15", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "para 45", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor was advised by Superintendent Forrest that her brother had been arrested for the possession of marijuana, and she was shown the police report of the arrest. She told Superintendent Forrest that she was completely unaware of the arrest. She also told him that the car referred to in the police report was her brother’s and that she had never driven it to work. Superintendent Forrest then told her about the employee evaluations found in the trunk of the car. In his disciplinary report, he set out the grievor’s reaction to being told that the documents had been found in her brother’s trunk as follows: … … Mariam claimed to have no idea of the occurrence. When presented with the documents that were found in the vehicle she claimed to recognize what they were and has handled them often, but claimed to never have seen these ones before. When asked why these documents were in the back of the vehicle, Mariam offered no explanation. She offered no clarification of how the documents were moved from the CBSA premises to that vehicle or why they would be reproductions of the originals… When asked directly if she removed the photocopied [sic] and then removed the documents from the workplace, Mariam denied the allegation. When asked how they would be in her/her brother’s possession she offered: “Like I said, I have no idea. I can’t speak to if I unknowingly took them.” … At the end of the interview she speculated that it may have been a mistake on her part but was reminded that she still needed to report these incidents to management. …", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-16", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 46–50", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor testified that the first time she learned of the incident involving her brother was at the fact-finding meeting. She testified that she was “dumbfounded” when informed by Superintendent Forrest. She also testified that she was truthful in her answers at the meeting.\n\nSuperintendent Forrest testified that in the fact-finding interview, there was no emotion in the grievor’s voice. In his disciplinary report, he expressed the opinion that she had not taken any responsibility for her actions or expressed any genuine remorse.\n\nAt the fact-finding meeting, the grievor was asked what she would have done had she been aware that the documents had left the CBSA’s offices. She replied that she would have immediately reported it to Superintendent Sandhu. She testified that at the end of the meeting, she was advised that the investigation would continue but that it was unlikely that she would have to speak to the investigators again.\n\nSuperintendent Forrest testified that the grievor or her bargaining agent representative could have provided further information after the fact-finding interview but did not. The grievor testified that at the end of her interview, she was under the impression that no more was required from her in the investigation.\n\nAfter the fact-finding interview of February 23, 2015, the grievor confronted her brother about the arrest and about the documents being found in the trunk of his car. She testified that there were items of hers, including a box of school documents, from 2012 in the trunk of his car. She had moved in June 2014 and testified that she had asked her brother to move some of her belongings. The box was left behind in the trunk. She testified that it mostly contained university assignments, readings, exams, and notes.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-17", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 51–53", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor testified that she must have picked up the documents at work inadvertently while putting her schoolwork in her bag and then shoved the pile of papers (the schoolwork and the performance evaluations) in a box and forgot them. The grievor testified that she had made a mistake in removing the protected documents from Pearson, stating, “I’m human.” She denied “knowingly” taking them.\n\nSuperintendent Sandhu testified that she did not understand how the grievor could have taken the performance appraisal documents inadvertently. She testified that the photocopier was not near a workspace and that once photocopied, the documents were supposed to be filed. The original documents were then sent to the CBSA’s Regional Headquarters. Superintendent Sandhu also testified that she had never seen the grievor studying while at work. In cross-examination, Superintendent Sandhu stated that it was possible that the grievor could have picked up the documents inadvertently.\n\nSuperintendent Forrest provided his disciplinary report to management on March 5, 2015. He recommended that in light of the seriousness of the grievor’s conduct, her security clearance be revoked and that her employment be terminated, as the CBSA could “… no longer trust or support her decision making ability”. He testified that he had no further involvement in the decision to terminate her employment.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-18", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 54–57", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On March 31, 2015, William Sawchuk, Senior Investigator, Personnel Security Screening Section, advised the grievor that a security interview was required. She was also provided with a “Security Interview Notification” that her reliability status or security clearance was to be reviewed “… as a result of concerns which have come to our attention”. The purpose of the interview was “… to provide [her] an opportunity to provide information in a forthright and honest manner with respect to the concerns that have arisen and to answer all questions truthfully”. She was also advised that she could be accompanied by an observer, who was not allowed to interfere in any way with the interview process.\n\nThe interview took place on April 9, 2015. The grievor brought a bargaining agent representative as an observer. The grievor told Mr. Sawchuk that the only plausible explanation of how the performance evaluations ended up in her possession was that she might have accidentally taken them off the premises along with her school materials.\n\nMr. Sawchuk spoke to Superintendent Forrest about Superintendent Forrest’s fact-finding meeting with the grievor. Superintendent Forrest testified that it was a brief conversation and that he was not aware of the contents of any security report. He testified that the disciplinary investigation was segregated from the security investigation, and vice-versa, for the investigations not to influence each other. He testified that he had no knowledge of Mr. Sawchuk’s interview of the grievor.\n\nThe grievor testified that her impression was that the security investigation was connected to the fact-finding investigation.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-19", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "para 58", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On June 2, 2015, the grievor was advised of a disciplinary meeting scheduled for June 3, 2015. On that day, Christine Durocher, Director, Passenger Operations, advised her that “… additional information has come to management’s attention which requires further consideration and validation” and that the disciplinary meeting was postponed. The grievor testified that she was never told what additional information had come to management’s attention.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-20", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "para 59", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The disciplinary meeting took place on June 15, 2015. The grievor had a bargaining agent representative with her. She was presented with a letter terminating her employment, signed by Jennifer Richens, Acting Director General of the CBSA’s Training and Development Directorate. The letter stated as follows: … …Throughout the course of the meeting with management [February 23, 2015 fact-finding] you denied having taken the protected documents, offered no explanation as to how the documents could have been removed from CBSA premises and had “no idea” as to how they came to be in the vehicle. As an employee of the CBSA you occupy a position of authority and have access to protected information and systems. With authority comes the expectation that your decisions and actions will be guided by the Agency’s Code of Conduct and values, including integrity. Based on a thorough review of this case, I am satisfied that you were made aware of the allegations and that you had the opportunity to present information to management that you wished to have considered prior to a decision being made. I find on the balance of probabilities that you removed protected documents from CBSA premises without authorization, failed to properly secure the documents and allowed them to be viewed by unauthorized persons. Moreover, the findings listed above along with your conduct during the investigation of the incidents are contrary to the Code of Conduct and demonstrate a lack of integrity that has irrevocably damaged the bond of trust that is fundamental to the employer-employee relationship.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-21", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 59–63", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Consequently, in accordance with the authority delegated to me by the Deputy Minister, and pursuant to section 62 of the Public Service Employment Act, please be advised that your employment is hereby terminated effective the date of receipt of this letter during the probationary period from your position as a CBSA Officer Trainee. As of the date of receipt of this letter, you are no longer authorized to report for duty, however, pursuant to section 62(2) of Public Service Employment Act, you will be paid 30 days in lieu of notice. …\n\nMs. Richens testified that she first became aware of concerns about the grievor when she was asked to review the documentation for the grievor’s rejection on probation. She reviewed the report prepared by Superintendent Forrest as well as the police report. She testified that this information gave her “grave concerns”. She testified that her decision to reject the grievor on probation was not a disciplinary decision but was based on integrity.\n\nIn cross-examination, Ms. Richens explained her reference in the termination letter to the grievor’s conduct during the investigation. She stated that she relied on the fact that the grievor expressed no remorse and took no responsibility for her actions.\n\nMs. Richens was asked by counsel for the employer why the grievor was allowed to stay in the workplace until the termination of her employment, given the concerns about her integrity. Ms. Richens stated that due process had to be followed.\n\nMs. Richens testified that it was normal to carry out two investigations — one for security, and the other with respect to labour relations — and that they would be parallel and separate. She testified that she had not seen the security investigation report before preparing for this hearing.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-22", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 64–68", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor testified that she believed that the employer would have considered the security investigation, as it contained her side of the story.\n\nMs. Richens testified that she had never met the grievor and that she had never seen the grievor before the hearing. She testified that she was shocked to hear the allegation of racism in a document that the grievor had provided to the Canadian Human Rights Commission (CHRC; discussed later in this decision). She testified that she had thought that the name “Malik” was of Hungarian origin, based on her experience, and that she had not been aware that the grievor was Muslim or wore a hijab.\n\nIn cross-examination, Ms. Richens noted that in the grievor’s performance assessments, some areas for improvement had been identified.\n\nThe grievor contacted Mr. Sawchuk after her termination of employment, and she testified that he told her that he would not complete his investigation or issue a report because her employment had been terminated. She did obtain a “Security Review Investigation Report” through an access-to-information request. The report, dated May 5, 2015, was signed by Mr. Sawchuk as well as others in the Personnel Security Screening Section but ultimately was not signed off by the Departmental Security Officer. Mr. Sawchuk’s recommendation was that the matter be referred to the Security Review Committee for consideration of a possible suspension of the grievor’s reliability status.\n\nThe grievor testified that the work environment at Pearson was toxic and alleged that colleagues had made racist comments to her.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-23", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 69–72", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "To place in context the grievor’s evidence relating to her complaint about the coverage of her by the Canadian Broadcasting Corporation (CBC) and her human rights complaint to the CHRC, it is necessary to first set out the events of January 2014.\n\nShortly after she started working at Pearson, on January 29, 2014, the grievor was asked if she would be willing to appear in a video being prepared by the CBSA called, “Arriving by Air”. She signed a consent and waiver form, allowing the CBSA to film her. The release was specific to that video. The name tag on her uniform was changed. The video was shown on terminal screens at Pearson commencing in December 2014. The grievor testified that she agreed to appear in it in “the interests of being a team player”.\n\nThe grievor testified that in the first week of March of 2015, a CBSA representative approached her, accompanied by a camera operator, while she was working at a booth in Primary Inspection. She was asked if she minded if she was put in “a couple of shots” while working. She testified that she was not informed about the purpose of the “shots” or that the camera operator was from the CBC.\n\nThe grievor was on leave from March 8 to 18, 2015, and had limited Internet access then. She testified that on March 10, 2015, she was advised by a friend that her photo was the main image in an online CBC article entitled, “March Break 2015: How to avoid an airport meltdown”. She testified that friends of hers shared the article on Facebook and “tagged” her. She also testified that the article was posted on the CBC Facebook page and that there were a large number of comments from the public, many of which were discriminatory. She provided some of the comments at the hearing. The photograph of her clearly shows her name tag on her uniform.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-24", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 73–74", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor testified that on or about April 3, 2015, she met with Acting Chief David Berndt to express her concerns about her personal safety as well as what she felt was a lack of consent. She followed up with an email to him in which she stated that had she been advised that the photograph of her would be used by the CBC, she would not have agreed to it. She also stated in the email that given the current anti-Islamic sentiment around the world, she did not appreciate being put in a national news article. She noted that although she had not experienced any specific threats, it was a safety concern for her, as she often worked late.\n\nMs. Durocher replied to the grievor on April 15, 2015, stating that it was the CBSA’s intention to meet with her and to provide a more fulsome response once inquiries had been completed.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-25", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "para 75", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On May 20, 2015, Ms. Durocher provided the following email response: I am writing you further to my email of April 20, 2015 concerning the CBC video taping of “March Break 2015”. As the Director of Passenger Operations District, my first and foremost concern is the safety of the staff and, in this regard, I had A/Chief Berndt meet with you to discuss precautions you may take, as you raised concerns. A/Chief Berndt met with you on May 2, 2015 and discussed your concerns, as well as, precautions you may consider. A/Chief Berndt has confirmed that he discussed the tools that have been developed to assist officers with safety concerns when not at work. He has advised me that you understood the precautions available, however, your main concern with the matter was related to your not fully understanding the purpose of the video footage. In this regard, I have followed up with Communications and they have confirmed that you did provide verbal consent and were advised that CBC was taking the footage for a March break video. Communications has confirmed that only volunteers that consent/agree to be filmed and have their names visible are used in video footage. They have assured me that if an individual expresses any concerns with being taped they will guarantee that they are not included in the footage. However, I understand that in this particular incident you did not fully understand what the footage was being used for and, therefore I have requested that a more thorough discussion and/or consent is required before future taping occurs at Passenger Operations District. I understand that you have not had any specific threats stemming from this video footage and would request, that if you do, that you advise Management immediately. …", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-26", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 76–80", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor requested a meeting with Ms. Durocher, whose assistant scheduled one for June 2, 2015. The grievor reiterated her concerns to Ms. Durocher about the CBC article and the use of her image. She testified that she expressed her dissatisfaction with the CBSA investigation and the response to her concerns.\n\nFollowing the meeting, the grievor wrote to Ms. Durocher on June 15, 2015, denying that she had provided consent for the taping. She stated, “I cannot understate how upsetting this matter is to me, given the other stressors I am currently facing …”.\n\nMs. Richens testified that she had no knowledge of the CBC article until making her preparations for this hearing. She testified that she was not made aware of this issue and that it did not factor into her decision to terminate the grievor’s employment.\n\nThe grievor testified that she believed that someone would have mentioned her complaint about the CBC coverage to Ms. Richens but admitted that she had no proof.\n\nThe grievor filed a complaint with the CHRC on June 15, 2016, a year after her termination. She alleged that she had been discriminated against on the grounds of race, colour, and religion by how she was treated in an adverse, differential manner and by the termination. In a report dated June 26, 2018, the CHRC determined that it was “… plain and obvious that this complaint cannot succeed”. The report recommended that the complaint be dismissed as frivolous, under s. 41(1)(d) of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA).", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-27", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 81–84", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor was given an opportunity by the CHRC to respond to the report. She provided it with undated submissions. A significant part of her submissions consists of argument. I have summarized the relevant parts of her argument in the summary of the arguments section later in this decision. In her submissions, she wrote about the finding of the protected documents in her brother’s car and corrected the statement in the CHRC report that she had removed protected documents from the workplace while she was on probation, as follows: …The respondent says that the investigation determined that the complainant had removed protected documents from the workplace while she was a probationary officer trainee. This statement is not true. Not once did I remove a single document while I was an officer trainee. I unknowingly took paperwork home that I assumed was my own coursework, in 2012, while I was an administrative student. I moved in 2014 and had asked my brother to help me move some of my belongings to my new residence; these belongings included a box full of academic coursework. I was unaware that there were protected CBSA documents in that box, with my coursework.\n\nLater in her response, she stated that she agreed that there was evidence of negligence on her part in 2012 but that there was no evidence of malfeasance.\n\nThe CHRC reviewed the submissions and dismissed the complaint on September 28, 2018. The grievor did not apply for a judicial review of the CHRC’s decision.\n\nThe following is a summary of the arguments made at the hearing, in addition to additional submissions made by teleconference call on February 12, 2020.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-28", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 85–89", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer submitted that I did not have jurisdiction over this grievance and that the proper procedure for the grievor was a judicial review application to the Federal Court.\n\nThe employer referred me to Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.), and Tello. It stated that it was required only to provide an employment-related reason for the termination of the grievor’s employment. In this case, it submitted that it had an employment-related reason and that the grievor had admitted her negligence in her CHRC submissions.\n\nThe employer submitted that the removal of the performance appraisals from the workplace was a serious issue. It did not have to prove any intent to remove them. In the alternative, it argued that it was more likely than not that the grievor knew about the existence of the documents. The employer submitted that the chain of events as described by the grievor was not plausible.\n\nThe employer also submitted that the grievor’s discrimination allegations were simply wild allegations without any substantive support. The employer also noted that the grievor demonstrated a lack of remorse for her actions.\n\nThe employer submitted that it had met its burden of proof and that the grievor had not met her burden to show that the termination of employment was a sham. The employer noted that the decision-maker, Ms. Richens, was not aware of the grievor’s issues with the CBC. There was no evidence to support retaliation by the CBSA for her raising those issues.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-29", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 90–96", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer submitted that the discrimination issues raised by the grievor had been addressed by the CHRC and had been dismissed. It submitted that these issues should not be relitigated and relied on the principle of issue estoppel; see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. The employer stated that these were the same issues and the same parties and that the grievor was estopped from raising these issues in this proceeding.\n\nIn the alternative, the employer stated that Ms. Richens knew only the grievor’s gender and that she was not aware of the grievor’s race or religion. The employer submitted that there was no basis for determining that the termination of employment was tainted by discrimination.\n\nIn conclusion, the employer submitted that the grievor had failed to meet her burden and that the grievance should be dismissed.\n\nThe grievor submitted that the termination of employment was done in bad faith and that it was a planned and purposeful act. She stated that her probationary status was improperly extended in bad faith.\n\nThe grievor submitted that the arrest of her brother and the search of his car were illegal. She submitted that the police officer did not have probable cause to search the vehicle.\n\nThe grievor submitted that the testimony of Superintendent Forrest was not reliable. He testified that he was not aware of the security investigation, but there is evidence that he had a detailed conversation with the security investigator.\n\nThe grievor submitted that the security investigation report contained information that would not support a termination of employment and that Ms. Richens should have considered it.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-30", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 97–102", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor doubted that Ms. Richens was not aware of the issues the grievor raised about the CBC report. She stated that it was likely that Ms. Richens was informed of it by Ms. Durocher.\n\nThe grievor alleged that the CBSA promoted racism and that she experienced racism from both passengers and CBSA employees.\n\nThe grievor submitted that her situation has many similarities to those raised in Niedermeiser and Treasury Board (Revenue Canada - Customs and Excise), PSSRB File No. 166-02-27859 (19971022), [1997] C.P.S.S.R.B. No. 111 (QL). In that case, protected documents were found in the grievor’s boyfriend’s car, and a suspension was substituted for a termination of employment. The only difference, the grievor submitted, was that she was on probation and had been deliberately kept on it.\n\nThe grievor submitted that the true motive for her termination was the fact that she had raised issues about her privacy and compromised safety as a result of the CBC’s publication of her image. She also questioned the seriousness of the employer’s stated reason for the termination, since she had been permitted to continue working after it became aware that the protected documents had been in her possession.\n\nThe grievor submitted that she was honest, forthright, reliable, and consistent in her testimony. She submitted that her termination was tainted by bias, racism, and a lack of due process. She submitted that she should be reinstated and fully compensated.\n\nThe employer submitted that there were many issues related to the grievor’s performance in December 2014 and that for that reason, her probation was extended. The employer submitted that the next window for ending the probationary period was at the 18-month mark.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-31", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 103–106", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer submitted that the Niedermeiser case did not involve a rejection on probation. It submitted that the lengthy suspension substituted in that case bolstered the employer’s case that the reason for the rejection on probation was employment-related.\n\nI requested further submissions from the parties relating to a decision of the PSLRB on pre-employment conduct and a rejection on probation, namely, Doucet v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 145. Those submissions were made on February 12, 2020, by teleconference call.\n\nIn Doucet, the employer discovered that the probationary employee had engaged in an inappropriate relationships with inmates while working on a casual basis and before commencing her probationary period. The adjudicator issued a preliminary decision, holding that the employer could not rely on evidence from before the grievor’s probationary period.\n\nIn that case, the adjudicator determined that the grievor did not know of the rule against inmate relationships when she was employed on a casual basis. The rule had not been clearly communicated to her and there was no evidence that the grievor was presumed to have known that rule. The adjudicator also determined that the employer could have discovered the behaviour when it interviewed her for her appointment as a probationary employee. The adjudicator then held that the employer could not rely on the grievor’s pre-employment conduct in its decision to reject her on probation.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-32", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 107–108", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer submitted that Doucet was wrongly decided. It stated that neither of the elements (knowledge of the rule and discoverability of the misconduct) addresses whether the decision to terminate was a disguised disciplinary measure, i.e., a sham or camouflage. Counsel noted that the adjudicator stated explicitly (at paragraph 65), “My role as an adjudicator is to determine whether the evaluation method was fair and reasonable …”. To support this proposition, the adjudicator cited two arbitration decisions in which there is no equivalent to ss. 209 or 211 of the PSLRA; i.e., the arbitrators had jurisdiction to consider the reasonableness of the rejection on probation. Counsel submitted that the adjudicator in Doucet was categorically wrong in her assessment of her role under the PSLRA.\n\nIn the alternative, the employer stated that the decision in Doucet was distinguishable on the facts. In the case before me, counsel for the employer said that the grievor had testified that she was aware of the confidentiality rules and the rule against removing such documents from the workplace. Counsel also submitted that their removal was not something that the employer could have been aware of at the time the grievor was recruited.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-33", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 109–112", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In the further alternative, the employer submitted that the proposition that pre-employment matters are “irrelevant” to the assessment during the probationary period (see paragraph 70 of Doucet) is without a logical foundation. Its counsel submitted that nothing in the jurisprudence or leading labour law texts dealing with the issue of probation stands for the proposition that the discovery of pre-employment evidence relating to suitability cannot be relied upon to reject on probation. Nothing in the PSEA limits the evidence that a deputy head can rely on when rejecting someone on probation. Counsel submitted that the employer’s position was that there is no basis in law or logic to suggest that the discovery of evidence from the pre-employment period during the probationary period must be ignored when determining a person’s suitability for a job.\n\nThe employer submitted that the Doucet decision should be given no weight.\n\nThe grievor submitted that she should have been assessed solely on her performance during the probationary period. She submitted that the employer did not question her performance during the probationary period.\n\nFor the reasons set out in this section, I have determined that the employer had an employment-related reason for terminating the grievor’s employment during the probationary period and that the grievor did not meet her burden of showing that the rejection on probation was a sham or camouflage. Therefore, I have determined that the grievance must be dismissed.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-34", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 113–115", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I have not addressed the employer’s position that the appropriate forum for challenging the reasonableness of a termination of employment while on probation is the Federal Court. My role as a panel of the Board is to determine if I have jurisdiction over the grievance before me. It is not appropriate for me to suggest an alternate forum for addressing a grievor’s issues.\n\nSome of the evidence in this hearing related to the grievor’s overall performance during her probationary period. The grounds set out in the termination letter did not include any performance-related concerns during the probationary period. Therefore, the evidence of Ms. Richens relating to “other performance concerns” is not relevant to her decision to terminate the grievor’s employment. I find that the evidence on the grievor’s performance during the probationary period is relevant only with respect to her allegations of bad faith and to providing context for her position on the law.\n\nThe grievor made allegations at the hearing about discrimination being a factor in her termination of employment. The employer submitted that she was prevented from relying on these allegations because of issue estoppel. Danyluk establishes three preconditions for the operation of issue estoppel: (1) the same question has been decided in earlier proceedings, (2) the earlier decision was final, and (3) the parties to that decision or their privies are the same in both the proceedings. If these three preconditions are met, the decision maker must still determine whether, as a matter of discretion, issue estoppel ought to be applied.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-35", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 116–118", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In this case, the parties are the same, and the decision was final (the grievor did not refer the CHRC’s decision for judicial review). However, I do not find that the CHRC decided the same question. It addressed discrimination allegations in employment, but it did not squarely address the issue in this grievance — whether the employer appropriately terminated the grievor’s probationary employment. In addition, I am not being asked to determine the grievor’s rights under the CHRA but to determine whether the employer acted in bad faith by terminating her employment. Therefore, I find that issue estoppel does not apply in the circumstances of this grievance.\n\nThe grievor made allegations of discrimination in the workplace, including of anti-Muslim comments and a toxic workplace. I have not considered them, for two reasons. Firstly, the grievance did not allege human rights discrimination and simply referred to the disciplinary action, so the issue of discrimination on the basis of race or religion is not properly before me. Secondly, these allegations were raised for the first time in this grievance process at the hearing.\n\nThe grievor alleged that the search of her brother’s car was illegal. In light of her admission that the protected documents had been removed from the workplace in 2012, whether they were obtained improperly is not relevant to this proceeding.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-36", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 119–120", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The basis for determining my jurisdiction over a rejection on probation was succinctly stated as follows in Penner where the Federal Court of Appeal referenced Jacmain v. Attorney General, [1978]: … … an adjudicator seized of a grievance by an employee rejected on probation is entitled to look into the matter to ascertain whether the case is really what it appears to be. That would be an application of the principle that form should not take precedence over substance. A camouflage to deprive a person of a protection given by statute is hardly tolerable. In fact, we there approach the most fundamental legal requirement for any form of activity to be defended at law, which is good faith…. … an adjudicator … is not concerned with a rejection on probation, as soon as there is evidence satisfactory to him that the employer’s representatives have acted, in good faith, on the ground that they were dissatisfied with the suitability of the employee for the position…. … … It may be that this dissatisfaction with suitability arose from misconduct or misbehaviour by the employee, but that does not render the dissatisfaction any less real and legitimate nor does it permit us to confuse the rejection with a disciplinary sanction. …\n\nThe assessment steps in the OID program came to a halt for the grievor on May 1, 2015, when she was advised that the labour relations and personal security investigations needed to be resolved prior to proceeding with the OID program process. The grievor’s employment was terminated before the end of the 18-month probationary period.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-37", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 121–122", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer has met its initial burden as set out in Tello. The grievor was on probation, the probationary period was still in effect at the time of termination and her employment was terminated within the probationary period. There is no dispute that she received compensation in lieu of notice, in accordance with the PSEA. She was also provided with a letter outlining the reason for the termination.\n\nThe burden then shifted to the grievor to demonstrate that the termination was not for an employment-related reason but was exercised in bad faith or was a sham. The grievor’s burden is described as follows in Tello (at paragraphs 110 and 111): [110] If a deputy head terminates the employment of a probationary employee without any regard to the purpose of a probationary period — in other words, if the decision is not based on suitability for continued employment — that decision is one that is arbitrary and may also be made in bad faith. In such a case, the termination of employment is not in accordance with the new PSEA. [111] … The grievor bears the burden of showing that the termination of employment was a contrived reliance on the new PSEA, a sham or a camouflage. If the grievor establishes that there were no legitimate “employment-related reasons” for the termination (in other words, if the decision was not based on a bona fide dissatisfaction as to his suitability for employment: Penner at page 438) then the grievor will have met his burden. Apart from this change to the burden of proof, the previous jurisprudence under the former PSEA is still relevant to a determination of jurisdiction over grievances against a termination of a probationary employee.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-38", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 123–124", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor argued that her probationary period was unnecessarily extended before her termination. I do not have jurisdiction over the management of a probationary process. My jurisdiction is limited to determining if the rejection on probation was a sham or camouflage. Performance issues were identified in November 2014, before the discovery that the protected documents had been removed, and the grievor received an enhanced performance plan. There was a further enhanced performance plan prepared in February 2015, after the discovery of the documents. Although her performance had improved, as evidenced by her last evaluation by her superintendent, the evaluation process was put on hold due to the ongoing fact-finding investigations. This was a legitimate action by the employer, in light of the allegations relating to her previous employment as a student. She was rejected on probation prior to the next stage of the evaluation process (at 18 months). The grievor has not convinced me that the extension of her probationary status was done in bad faith. The suspension of the evaluation at the 15-month period was for an employment-related reason.\n\nThe grievor admitted that she had protected documents in her possession since 2012. She testified that she must have inadvertently put them in her bag with her school texts and then placed the contents of the bag in a cardboard box. The box then ended up in her brother’s car when she moved in 2014. The employer suggested that this was implausible.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-39", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 125–128", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In cases involving probation, a decision-maker need only determine if the factor relied upon by the employer is an employment-related reason. This is not a disciplinary grievance in which determining whether conduct was inadvertent or deliberate would be necessary to assess the appropriateness of the discipline. However, I find it plausible that the documents ended up in the grievor’s bag without her making a conscious decision. But she remains responsible for failing to discover them and then inadvertently storing them in her brother’s car.\n\nI do not need to determine whether the grievor intended to remove protected documents from the workplace. It was her responsibility not to have protected documents in her possession. She appeared to recognize her negligence of not checking her bag or the box that she put them in. I am satisfied that the employer had an employment-related reason for the rejection on probation.\n\nIn the termination letter, Ms. Richens also referred to the grievor’s conduct during the investigation as having been contrary to the CBSA’s “Code of Conduct”. The letter refers to the grievor having denied taking the documents and having offered no explanation as to how they could have been removed or how they came to be in her brother’s car.\n\nThis allegation is not an accurate reflection of the content of the fact-finding interview. Although the grievor offered no explanation, she did not deny that she had taken them. She stated in the fact-finding interview that the removal of the documents might have been a mistake on her part. This is not a denial that she removed them from CBSA premises.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-40", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 129–132", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In addition, I accept that it is plausible that the grievor did not know how the documents ended up in her possession. In fact, at the hearing, she was still only speculating on how they ended up in her possession. However, she has consistently accepted that they were in her possession inadvertently.\n\nI will also address the statement of Superintendent Forrest that the documents could have resulted in identity theft. In my view, that statement is speculative and based on an underlying assumption (the presence of personal phone numbers) that is not supported by the evidence.\n\nIn Tello, I found that the employer does not have to prove all the allegations it relied on in a rejection on probation. The requirement is for it to provide an employment-related reason. In this case, it did not establish that the grievor denied taking the documents. However, I find that it still had an employment-related reason for the rejection on probation.\n\nThe grievor asserted that Ms. Richens should have considered the security investigation interview in her decision making. The fact-finding process for human resources purposes is kept separate from security investigations at the CBSA, which was done in this case. The testimony of Ms. Richens was clear that she did not review any of the security investigation documents (the interview or the draft report). The content of the security interview and the fact-finding interview are roughly similar.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-41", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 133–137", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor speculated in the fact-finding interview that the removal of the protected documents might have been “a mistake on her part”. In the security interview, she provided more details when she speculated that she might have accidentally taken them off the premises along with her school materials. Apart from setting out the possible way in which the documents ended up in her possession, the essence of her response was the same in both investigations — she mistakenly took them.\n\nI find that the information from the security investigation was not materially different from the information obtained through the fact-finding investigation.\n\nThe employer relied largely on the removal and discovery of the protected documents as the basis for the grievor’s termination of employment. As noted, the grievor’s action took place before she was hired as an FB-02 officer trainee.\n\nDoucet is the only decision in the federal public sector that squarely addresses the issue of pre-employment conduct in rejection-on-probation cases. The employer suggested that Doucet was wrongly decided. I find that I do not need to address that allegation, as the facts in the grievance before me are distinguishable from those in Doucet.\n\nIn Doucet, the adjudicator found that the employer could have discovered the grievor’s inappropriate behaviour before she was hired. In this case, the grievor admitted that she did not know about having the documents in her possession until the fact-finding interview in February 2015. Therefore, the employer could not have possibly discovered this pre-employment conduct until contacted by the police in January of 2015.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-42", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 138–139", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor relied on Niedermeiser to support her position that the termination of her employment was excessive. Niedermeiser related to the termination of employment of an employee who was not on probation. The analysis of a grievance of a rejection on probation is fundamentally different from the analysis of a disciplinary termination of employment. Therefore, I find that that decision is of no relevance in the grievance before me.\n\nThe grievor also argued that the employer could not have had real concerns about her integrity and reliability as she was allowed to continue with her regular duties and had continued access to protected documents and databases after the employer was advised of the removal of documents. In a grievance of termination for misconduct, the fact that the grievor was allowed to stay in the workplace would be a factor in determining rehabilitative potential. However, during the probationary period, the same disciplinary principles do not apply. In a rejection on probation, the employer needs to have an employment-related reason. The strength of that reason is not relevant.", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-483604-43", - "doc_type": "caselaw", - "act_code": "2020 FPSLREB 64", - "act_short": "Malik", - "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", - "section": "", - "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", - "marginal_note": "paras 140–142", - "heading": "Discipline and termination grievance of a CBSA employee", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor alleged that the real reasons for her termination were the issues she raised with the CBSA about the CBC’s use of her image. I first note that the employment-related reason for the rejection on probation arose before she was photographed. The fact-finding report and Superintendent Forrest’s recommendation were also prepared before she raised concerns about the CBC photograph. She alleged that Ms. Richens must have known about her dissatisfaction with the CBSA as to how the matter was handled. However, Ms. Richens denied any knowledge of the complaint, and the grievor did not establish any evidence that this was a factor in Ms. Richens’ decision to terminate the grievor’s employment.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe grievance is dismissed. June 9, 2020 Ian R. Mackenzie, a panel of the Federal Public Sector Labour Relations and Employment Board", - "current_to": "2020-06-09", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" - }, - { - "id": "fpslreb-500554-1", - "doc_type": "caselaw", - "act_code": "2021 FPSLREB 72", - "act_short": "Andruszkiewicz", - "act_name": "Andruszkiewicz v. Canada Border Services Agency", - "section": "", - "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", - "marginal_note": "paras 1–2", - "heading": "Unfair labour practice complaint involving the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On November 23, 2020, Valerie Andruszkiewicz (“the complainant”) made a complaint under s. 190 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; \"the Act”) alleging that the respondent, the Canada Border Services Agency (“the Agency”), committed an unfair labour practice within the meaning of s. 185 of the Act and, in particular, s. 186(2).\n\nSection 186(2) of the Act states this: 186 (2) No employer, no person acting on the employer’s behalf, and, whether or not they are acting on the employer’s behalf, no person who occupies a managerial or confidential position and no person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer, shall (a) refuse to employ or to continue to employ, or suspend, lay off, discharge for the promotion of economy and efficiency in the Royal Canadian Mounted Police or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person (i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of an employee organization, or participates in the promotion, formation or administration of an employee organization, (ii) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Part or Part 2 or 2.1 (iii) has made an application or filed a complaint under this Part or Division 1 of Part 2.1 or presented a grievance under Part 2 or Division 2 of Part 2.1, or (iv) has exercised any right under this Part or Part 2 or 2.1.", - "current_to": "2021-06-21", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" - }, - { - "id": "fpslreb-500554-2", - "doc_type": "caselaw", - "act_code": "2021 FPSLREB 72", - "act_short": "Andruszkiewicz", - "act_name": "Andruszkiewicz v. Canada Border Services Agency", - "section": "", - "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", - "marginal_note": "paras 2–4", - "heading": "Unfair labour practice complaint involving the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "(b) impose, or propose the imposition of, any condition on an appointment, or in an employee’s terms and conditions of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Part or Part 2 or 2.1; or (c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from (i) testifying or otherwise participating in a proceeding under this Part or Part 2 or 2.1, (ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2 or 2.1, or (iii) making an application or filing a complaint under this Part or Division 1 of Part 2.1 or presenting a grievance under Part 2 or Division 2 of Part 2.1.\n\nThe complainant alleges that the Agency conducted an arbitrary, discriminatory, and bad-faith investigation into a harassment complaint she made against senior management. She alleges that in the course of its investigation, the Agency violated Treasury Board policies, including the investigation guide for the Policy on Harassment Prevention and Resolution and the Directive on the Harassment Complaint Process. She alleges that it left out testimony and that it destroyed evidence.\n\nShe states that she grieved the handling of the investigation to the final level of the grievance process. She also states that she was provided with a copy of the employer’s final-level decision with respect to her grievance on August 27, 2020.", - "current_to": "2021-06-21", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" - }, - { - "id": "fpslreb-500554-3", - "doc_type": "caselaw", - "act_code": "2021 FPSLREB 72", - "act_short": "Andruszkiewicz", - "act_name": "Andruszkiewicz v. Canada Border Services Agency", - "section": "", - "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", - "marginal_note": "paras 5–12", - "heading": "Unfair labour practice complaint involving the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "By way of corrective action, she seeks an apology, salary lost (including holiday and overtime pay), and reimbursement for loss of leave, as well as a fair and transparent reinvestigation.\n\nOn December 22, 2020, the Agency replied to the complaint, objecting to its timeliness and requesting, in the alternative, that it be dismissed summarily because the complainant’s allegations could not support a finding of violation of a prohibition contained in s. 186(2) of the Act.\n\nThe complainant filed the complaint on November 23, 2020. She stated that she learned of the facts underlying the complaint 88 days earlier, when she received the final-level decision on her grievance on August 27, 2020.\n\nThe employer denied the complainant’s grievance because it considered that an external investigator handled her harassment complaint properly and that the Treasury Board Secretariat’s policies were followed.\n\nThe Agency submits that, contrary to the time limit set out in s. 190(2) of the Act, the complainant filed the complaint more than 90 days after she became aware of the facts at issue.\n\nThe Agency argued that the final-level decision on the grievance did not provide the complainant with any new information that she did not already know and that she should have filed the complaint within 90 days of learning of the results of the investigation of her harassment complaint.\n\nThe complainant is not represented by a bargaining agent.\n\nIn June 2018, the complainant made a harassment complaint in which she alleged that her manager, her director, and her director general had discriminated against her since 2016. The Agency retained an external investigator to investigate some of the allegations raised in the harassment complaint.", - "current_to": "2021-06-21", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" - }, - { - "id": "fpslreb-500554-4", - "doc_type": "caselaw", - "act_code": "2021 FPSLREB 72", - "act_short": "Andruszkiewicz", - "act_name": "Andruszkiewicz v. Canada Border Services Agency", - "section": "", - "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", - "marginal_note": "paras 13–17", - "heading": "Unfair labour practice complaint involving the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The investigation took place between December 2018 and May 2019, and during that time, two additional allegations were added to the investigator’s mandate. In June 2019, the investigator reported that the allegations did not relate to harassment, as defined in the Policy on Harassment Prevention and Resolution and the Directive on the Harassment Complaint Process.\n\nThe Agency informed the complainant and the alleged harassers of the investigator’s findings in the summer of 2019.\n\nOn October 7, 2019, the complainant grieved the handling of the harassment investigation.\n\nOn August 17, 2020, the employer denied the grievance at the final level of the grievance process. The employer’s decision concluded in part as follows: … The investigations, led by an impartial external investigator, both concluded that the allegations raised in your complaints did not meet the definition of harassment and thus, were unfounded. After a review of the entire process, I am confident that it was undertaken in accordance with the relevant Treasury Board Secretariat harassment directives and policies and see no reason to intervene. …\n\nThe complainant alleges that the Agency conducted an arbitrary, discriminatory, and bad-faith investigation into a harassment complaint she made against senior management. She alleges that in the course of its investigation, the Agency violated Treasury Board policies, including the investigation guide for the Policy on Harassment Prevention and Resolution and the Directive on the Harassment Complaint Process. She alleges that it left out testimony and that it destroyed evidence.", - "current_to": "2021-06-21", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" - }, - { - "id": "fpslreb-500554-5", - "doc_type": "caselaw", - "act_code": "2021 FPSLREB 72", - "act_short": "Andruszkiewicz", - "act_name": "Andruszkiewicz v. Canada Border Services Agency", - "section": "", - "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", - "marginal_note": "paras 18–20", - "heading": "Unfair labour practice complaint involving the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On October 7, 2019, the complainant grieved the handling of the harassment investigation. The employer denied the grievance at the final level of the grievance process. The employer’s decision notes this in part: … The following is in response to the above grievance in which you grieved that the harassment complaint process was mismanaged by the CBSA and the investigator. As corrective action, you requested compensation for lost salary, including overtime and shift differential pay, a return of leave used since 2016, and for an independent, non-commissioned employee of the federal government to review the findings of the investigations. …\n\nIt is apparent that after exhausting the grievance process, the complainant raised before the Board what is in essence and substance the same issues as those in her grievance, alleging this time that the Agency engaged in an unfair labour practice when it handled her harassment complaint.\n\nThe complainant in this case is not represented by a bargaining agent, and her terms and conditions of employment are not in a collective agreement. She does not have access to the adjudication process for her grievance that alleged that the Agency failed to follow Treasury Board policies with respect to harassment investigations. Any right that the complainant had with regards to the employer’s decision that denied her grievance should have been pursued before the Federal Court by way of an application for judicial review of that decision: see ss. 18 and 18.1 of the Federal Courts Act (R.S.C”, 1985, c. F-7).", - "current_to": "2021-06-21", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" - }, - { - "id": "fpslreb-500554-6", - "doc_type": "caselaw", - "act_code": "2021 FPSLREB 72", - "act_short": "Andruszkiewicz", - "act_name": "Andruszkiewicz v. Canada Border Services Agency", - "section": "", - "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", - "marginal_note": "paras 21–23", - "heading": "Unfair labour practice complaint involving the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "This brings me to the objection of timeliness raised by the Agency. As mentioned previously, the complainant is raising now essentially the same issues as those in her grievance. She claims to have known or learned of the events giving rise to this complaint when she was provided, on August 27, 2020, with the employer’s decision denying her grievance. I note with interest that she did not respond to the Agency’s assertion that she did not learn from that decision anything new that she did not already know when the Agency provided her, in the summer of 2019, with the investigator’s findings on her harassment complaint.\n\nAlthough there is not yet before the Board any evidence adduced through a contradictory process with regards to the timeliness issue, I do believe that the complainant ought to have provided a response to the Agency’s objection. Further, based on the fact that the complainant offered no explanation in that regard, I think it more likely than not that she has no plausible explanation for filing her complaint more than 90 days after being informed of the outcome of her harassment complaint. It should be kept in mind that the complaint relates to the Agency’s handling of her harassment complaint and not to the handling of her grievance.\n\nAlthough my findings regarding the Agency’s objection to timeliness dispose of the complaint, for the sake of completeness, I will consider nevertheless whether the complainant’s allegations may constitute an unfair labour practice within the meaning of the Act. In other words, I will consider whether, taking the facts alleged by the complaint as true for the sole purpose of deciding on the Agency’s request for summary dismissal, there is an arguable case of a violation of a prohibition contained in s. 186(2) of the Act.", - "current_to": "2021-06-21", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" - }, - { - "id": "fpslreb-500554-7", - "doc_type": "caselaw", - "act_code": "2021 FPSLREB 72", - "act_short": "Andruszkiewicz", - "act_name": "Andruszkiewicz v. Canada Border Services Agency", - "section": "", - "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", - "marginal_note": "paras 24–26", - "heading": "Unfair labour practice complaint involving the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In Laplante v. Treasury Board (Department of Industry and the Communications Research Centre), 2007 PSLRB 95, Ms. Laplante made a complaint under s. 190 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) alleging unfair labour practices by her employer as specified in ss. 186(1) and (2). She made a number of allegations, including that her employer had changed her working conditions based on discrimination. Other employees had complained against Ms. Laplante, alleging harassment on her part.\n\nMs. Laplante’s employer changed her working conditions so that she would no longer work with the employees who had complained against her, in accordance with its harassment policy. After investigating, Ms. Laplante’s employer determined that the other employees’ harassment complaints were unfounded.\n\nMs. Laplante’s employer did not immediately reinstate her to her former functions. She also filed grievances based on the same facts as her complaint, and she made distinct harassment complaints. The Public Service Labour Relations Board found that Ms. Laplante’s employer had not contravened ss. 186(1) or (2) of the Public Service Labour Relations Act. Furthermore, the Public Service Labour Relations Board found that Ms. Laplante’s harassment allegations were not grounds for a complaint under s. 190, and it dismissed the complaint.", - "current_to": "2021-06-21", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" - }, - { - "id": "fpslreb-500554-8", - "doc_type": "caselaw", - "act_code": "2021 FPSLREB 72", - "act_short": "Andruszkiewicz", - "act_name": "Andruszkiewicz v. Canada Border Services Agency", - "section": "", - "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", - "marginal_note": "paras 27–31", - "heading": "Unfair labour practice complaint involving the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The Public Service Labour Relations Board set out its reasons on Ms. Laplante’s employer’s objection to the complaint at paragraphs 68 through 83. I will recite those reasons in part, as follows: [68] … I agree with the employer’s argument that an unfair labour practice complaint must be based on a breach of the prohibitions set out in the provisions of section 185. [69] To decide the preliminary objection, I must determine whether the allegations of the complainant’s complaint can be considered prohibitions under the new Act. …\n\nThe Public Service Labour Relations Board then examined Ms. Laplante’s complaint in light of the specific provisions in ss. 186(2)(a) and (b) of the Public Service Labour Relations Act.\n\nAt paragraph 80, the Public Service Labour Relations Board dealt with Ms. Laplante’s harassment complaints, stating as follows: [80] I come to the same conclusion with respect to both the harassment complaints and the grievances listed by Ms. Laplante in this complaint, which she filed against certain managers. The circumstances described in the complaint [sic] do not state why, among the reasons set out in subparagraphs 186(2)(a)(ii) to (iv) of the new Act, those managers allegedly failed to comply with the prohibitions against unfair labour practices specified … in those circumstances.\n\nIn the result, the Public Service Labour Relations Board allowed Ms. Laplante’s employer’s objection that the complaint was not one that the Public Service Labour Relations Board could decide under s. 190 of the Public Service Labour Relations Act.\n\nThe grounds set out in s. 186(2) of the Act prohibit discrimination by an employer based solely on the situations described in s. 186(2).", - "current_to": "2021-06-21", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" - }, - { - "id": "fpslreb-500554-9", - "doc_type": "caselaw", - "act_code": "2021 FPSLREB 72", - "act_short": "Andruszkiewicz", - "act_name": "Andruszkiewicz v. Canada Border Services Agency", - "section": "", - "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", - "marginal_note": "paras 32–39", - "heading": "Unfair labour practice complaint involving the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Sections 186(2)(a)(i), (b), and (c) relate to a person’s membership or participation in an employee organization.\n\nSections 186(2)(a)(ii), and (c)(i) relate to a person’s participation as a witness in a proceeding under Part 1, 2 or 2.1 of the Act.\n\nSections 186(2)(a)(iii), and (c)(iii) relate to a person making an application or filing a complaint under Part 1 of the Act or a grievance under Part 2 or Division 2 of Part 2.1.\n\nSection 186(2)(iv) relates to a person exercising a right under Part 1, 2, or 2.1 of the Act.\n\nSection 186(2)(c)(ii) relates to a person making a disclosure with regards to a proceeding under Part 1, 2 or 2.1 of the Act.\n\nEven by taking all the facts alleged by the complaint as true for the sole purpose of deciding on the Agency’s request for summary dismissal, I can see no arguable case of a violation of a prohibition contained in s. 186(2) of the Act.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe complaint is dismissed. June 21, 2021. David Olsen, a panel of the Federal Public Sector Labour Relations and Employment Board", - "current_to": "2021-06-21", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" - }, - { - "id": "fpslreb-359013-1", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 1–2", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On May 27, 2013, the Public Service Alliance of Canada (“the complainant” or “the bargaining agent”) filed a complaint under section 190 of the Public Service Labour Relations Act (“the Act”) against the Treasury Board (Canada Border Services Agency) (“the employer” “the respondent”). At the time of the filing of the complaint, the parties were engaged in bargaining for a new collective agreement for the Border Services Group (FB). The collective agreement between the complainant and the respondent for the FB group expired on June 20, 2011 (“the collective agreement”). For the purpose of this decision, it should be noted that the terms and conditions contained in the collective agreement were maintained in force, at the time of the filling of the complaint, by virtue of section 107 of the Act.\n\nEssentially, the complainant alleged that the respondent violated sections 106 and 107 and subsection 186(1) of the Act by preventing it from distributing a bargaining agent meeting invitation via the “desk drop” method at some of the employer’s locations (Exhibit G-1, tab F). The complainant maintained that the respondent interfered with its right to communicate with its members. It also argued that the long-standing practice of distributing its documents via desk drop is a term and condition of employment that may be embodied in a collective agreement and as such could not be interfered with by the employer by virtue of section 107.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-2", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 3–5", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On June 14, 2013, the respondent maintained that the complaint was untimely since it was filed after the 90 days prescribed by subsection 190(2) of the Act. The respondent also submitted that the complaint was without merit in that in addition to being told many years ago that using desk drop to distribute its documents was not authorized, prior approval by the employer was required for that type of notice. The respondent asserted that the complainant had other means of communication provided for under the collective agreement and that it had home contact information for its members. The respondent also argued that there has been no breach of the freeze provided for under section 107 and that the employer merely exercised its discretionary authority to authorize access to its premises in accordance with the negotiated collective agreement.\n\nSix witnesses testified on behalf of the complainant. The employer called four witnesses. Each party introduced a book of exhibits.\n\nChantal Rajotte was the complainant’s first witness. She has been a local president of the Custom and Immigration Union for six years and had been involved in bargaining agent business before that. Ms. Rajotte indicated that the complainant’s members in the Ottawa-Hull area work at several facilities, such as 191 Laurier Avenue West, 250 Tremblay Road, Isabella Street and St. Laurent Boulevard.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-3", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 6–7", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Ms. Rajotte described the desk drop method as a method that the complainant had resorted to in the past to distribute documents after working hours or at lunch. Ms. Rajotte testified that in 2011, she distributed documents such as Christmas invitations, bargaining agent calendars and election information via desk drop at the work locations mentioned earlier. She desk dropped roughly 150 to 200 of each document. Ms. Rajotte indicated that in January 2013, she also desk dropped about 150 to 200 bargaining agent calendars at the Laurier Avenue West, Metcalfe Street and Tremblay Road buildings (Exhibit G-1, tab M). Ms. Rajotte testified that every time she distributed via desk drop, she never asked the employer for permission, since that was not her job and she was not required to do so. Ms. Rajotte added that over the years, she also received documents from her bargaining agent in the desk drop fashion.\n\nMs. Rajotte explained that to disseminate information, bulletin boards are not as effective as using desk drop because in most buildings, the bulletin board is located at the back of a corridor. Also, bulletin boards are divided in two, one side for the bargaining agent and one side for management which means that the notices are often covered by information from other bargaining agents or the employer. As a result, bargaining agent members cannot really see what is on the bulletin board. In response to a question from counsel for the respondent, Ms. Rajotte indicated that on numerous occasions, the bargaining agent complained about the location of the bulletin boards and that it might have grieved.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-4", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 8–9", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As to the specific events leading to this complaint, Ms. Rajotte testified that on April 5, 2013, she sent an email (Exhibit G-1, tabs F and G) to the director of human resources (HR) for the employer about distributing an invitation to a meeting on collective bargaining (Exhibit G-2). Ms. Rajotte explained that the purpose of her email was simply to inform management about the distribution of a notice of a meeting to be held on May 7, 2013 (Exhibit G-1, tab F), that it was done only as a courtesy and that she did not need the employer’s approval for the distribution. Ms. Rajotte indicated that she had created the notice (Exhibit G-1 tab F), on her own time at home. Ms. Rajotte testified that while the employer allowed notices to be posted on bulletin boards, as evidenced in its reply email of April 8, 2013, it did not permit the distribution via desk drop (Exhibit G-1, tab F). In cross-examination, Ms. Rajotte agreed that the invitation was posted on the bulletin boards one month before the scheduled event.\n\nMs. Rajotte also indicated that in the past, she distributed documents on secure floors of some buildings but never asked for the employer’s permission. She indicated that in the instances mentioned earlier, she was not sure if approval had been sought from the employer for the desk drop. It was not her job to seek that approval. Ms. Rajotte explained that for her, distributing documents through the means of desk drop was bargaining agent business as per article 12 of the collective agreement and, as such, did not require the employer’s approval. Ms. Rajotte testified that on numerous occasions, the bargaining agent complained about the locations of bulletin boards.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-5", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 10–12", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Francine Stuart also testified for the complainant. Ms. Stuart is retired. She indicated that she worked in several locations in her career, such as the Connaught Building in Ottawa and 191 Laurier Avenue West, and that over the years, she held several bargaining agent positions. Ms. Stuart indicated that the practice of using the desk drop to distribute the bargaining agent’s documents goes back many years and that in 1991, she did it on weekends. She indicated that she desk dropped documents such as bargaining agent calendars, branch election material, collective bargaining updates and Christmas party invitations.\n\nAs for the bulletin boards, Ms. Stuart complained that some buildings do not have them. In other buildings, bulletin boards are not easily accessible or are located on secured floors with restricted access, meaning that the bargaining agent may not have access to them. Ms. Stuart indicated that the bargaining agent complained about that at some of the Union/Management Consultation Committee (UMCC) meetings.\n\nMs. Stuart referred to the UMCC meeting of September 9, 2008, at its item 7 of Exhibit E-1, tab 14A. She indicated that she was president of the bargaining agent local at that time and that the bargaining agent asked for bulletin board postings and desk drops to be put on the agenda since it found it difficult to post its notices. Ms. Stuart testified that at that September 9, 2008 UMCC meeting, the bargaining agent asked for a link to be created in Outlook and that a locked cover be installed on the bulletin board; it told management that otherwise, it would use desk drop. Ms. Stuart testified that management replied that it would get back to it on the issue of desk drop; it never did.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-6", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 13–14", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In cross-examination, Ms. Stuart testified that in 2003 and 2004, after experiencing difficulty using bulletin boards, the bargaining agent tried to use desk drops to distribute information to its members but was told by the employer that it could not desk drop. Also, she agreed that it was told not to desk drop documents by the employer during the bargaining round for the FB group that took place previous to the round in issue here. Ms. Stuart indicated that while in the past, the bargaining agent filed grievances on the issue of access to bulletin boards, the matter was never referred to adjudication. Ms. Stuart indicated that the bargaining agent had been allowed to desk drop because the employer did not want to be bad mouthed by the bargaining agent.\n\nAs for her email of January 16, 2008 to Lauralee Larose (Exhibit E-1, tab 10), Ms. Stuart maintained that it was meant only as a courtesy and that she was not asking permission since it was bargaining agent business for which the employer’s permission was not required. Ms. Stuart indicated that she did not challenge Ms. Larose’s January 16, 2008, response that there was no issue with it as long as the calendars were left in non-work areas.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-7", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 15–16", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Charles Khoury was the complainant’s next witness. He testified that as the first vice president for the bargaining agent, he desk dropped the collective bargaining update in issue in March 2013 at the 150 Isabella Street building (Exhibit G-2). Mr. Khoury indicated that he distributed about 100 copies of it with a colleague, Insa Fall, at lunch during the days preceding the event referred to in the update. Mr. Khoury testified that desk drop was the best method to distribute information to bargaining agent members. Mr. Khoury indicated that the turnout rate improves when members are invited to a meeting through a desk drop as opposed to being invited through a notice posted on a bulletin board.\n\nMr. Khoury testified that for the March 2013 desk drop (Exhibit G-2), he told his manager that he would be doing it and gave him a copy of the document to be distributed. As for Mr. Fall, Mr. Khoury indicated that Mr. Fall talked to his manager, who was fine with the desk drop distribution as long as it did not involve the electronic network. Mr. Khoury also testified that he desk dropped the bargaining agent’s calendar in 2012 (Exhibit G-1, tab N). He indicated that he did not ask permission to distribute the calendars and that one manager even asked for copies for her staff. Mr. Khoury agreed that the bargaining agent might have a list of its members; however, he did not know whether it was accurate.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-8", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 17", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Robert Lafortune also testified on behalf of the complainant. He testified that he has been a shop steward for the complainant as well as its vice president of communications. Mr. Lafortune indicated that for the 10 years he was in Ottawa, he desk dropped documents for the complainant at least once a year, sometimes twice. He indicated that the documents that he distributed varied from calendars to collective bargaining updates to business cards with addresses on them. Mr. Lafortune testified that six years ago or so, he carried out desk drop distributions at 250 Tremblay Road and 2265 St. Laurent Blvd. in Ottawa. Mr. Lafortune indicated that he did it after working hours for the Tremblay Road building. As for the St. Laurent Blvd. building, since it is secure, with limited access, he asked for permission to get in, and then carried out the distribution at lunch. Mr. Lafortune indicated that he had permission from management to distribute the business cards and that he distributed over 800 of them on employees’ desks. Mr. Lafortune also testified that in October 2008, an election was underway for representatives of the bargaining agent, and he desk dropped his resumé. Mr. Lafortune testified that he probably passed out 1000 copies of his resumé after working hours and that he did not seek management’s permission Mr. Lafortune testified that he never asked for permission for a desk drop; he would simply tell management that he was about to do it and never received any complaints.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-9", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 18–22", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As for the UMCC meeting of September 9, 2008 (Exhibit G-1, tab C, page 5), Mr. Lafortune indicated that not much was said about desk drop except that it should be done after working hours and that it should not require management’s permission, as opposed to the bulletin board, for which management’s approval on the content of a notice was required before posting it. In cross-examination, Mr. Lafortune testified that he did not recall that the employer did not agree with the desk drop method.\n\nRichard Carrier and Lynn Smith Doiron, both involved with the union, also testified on behalf of the complainant, essentially about the fact that in the past, they desk dropped bargaining agent materials with the knowledge of their managers, who never complained.\n\nScott Pryor testified for the respondent. Mr. Pryor stated that he is currently the manager of the Trusted Trader program with the employer and that he has been in that position for the last three years. Mr. Pryor indicated that he has 21 years of service with the employer.\n\nMr. Pryor testified that it is not routine for the complainant to desk drop documents and that the bargaining update document (Exhibit G-2) was the first time, in March 2013, that it did so. Mr. Pryor testified that he became aware by talking to his director that the update was desk dropped by Mr. Fall, who works in his team and is a shop steward for the complainant.\n\nMr. Pryor testified that in addition to being desk dropped, the notice (Exhibit G-2) was posted on the bulletin board. He indicated that the bulletin board is about 5’ x 9’ in size and that it is easily accessible to employees. It is located on the 11th floor of the Isabella Street building, outside the kitchen area.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-10", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 23–27", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Pryor testified that Mr. Fall told him that he desk dropped the bargaining update document during his lunch break. Mr. Pryor indicated that not everyone in his group works the same hours or has the same lunch and break periods. He indicated that lunch and breaks are staggered.\n\nMr. Pryor testified that when he found out about the desk drop of the bargaining update document, he told Mr. Fall that there was a procedure to follow for the distribution of documents and that there was also a bulletin board for the purpose of communicating with employees.\n\nMr. Pryor testified that there were other means that the complainant could have used to communicate with its members, such as distributing the material outside the Isabella Street building and in its lobby.\n\nMr. Pryor stated that he is not the one who decided for the employer what documents can be desk dropped by the complainant. He testified that if he were asked for permission to desk drop documents by the complainant, he would have to refer that person to his director.\n\nRon Goulet also testified on behalf of the respondent. Mr. Goulet is currently director of the Travellers System and Reporting Division for the employer. Mr. Goulet’s office is located on the 4th floor at 250 Tremblay Road. He testified that he does not recall documents being desk dropped by the complainant at that location. He indicated that on his floor, employees have different lunch and break times and that some employees start their days earlier, some later. He stated that there is a bulletin board on his floor that has been used by the complainant, which also recently distributed documents to its members outside the building.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-11", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 28–31", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Ann Kline testified on behalf of the respondent. She is the director general of the Trade Program for the employer. She has been working at 150 Isabella Street since 2012. She testified that desk dropping documents was not a routine means of distribution for the complainant and that except for the distribution of calendars and the incident of March 4, 2013, she was not aware of other instances of desk dropping by the complainant.\n\nMs. Kline testified that on or about March 4, 2103, she noticed the bargaining agent’s notice (Exhibit G-2) on one of her assistant’s desks; another assistant also had a copy. Ms. Kline indicated that she also saw other employees outside their cubicles discussing what she assumed was the notice. The day after that, Ms. Kline saw the notice again. She took a picture of it and sent it to the employer’s labour relations group since many questions were raised about it. Ms. Kline stated that she was told that Mr. Fall was the one who had distributed it.\n\nMs. Kline testified that employees do not take their lunches or breaks at the same time. Ms. Kline explained that just because an employee distributes a document during his or her break time does not mean that those who receive it will read it only when they are on break. Ms. Kline indicated that she is not sure who has the authority for the employer to approve the desk drop of documents.\n\nMs. Kline indicated that there is a bulletin board on every floor at the Isabella Street location and that on the 11th floor it is located at the entrance of the kitchen area. She also testified that recently, the complainant distributed handouts in the lobby of the building, sent material via mail or via the employer’s email system, or posted information on its website.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-12", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 32–37", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Ms. Larose was the respondent’s last witness. She is currently the employer’s labour relations manager. Ms. Larose testified that the employer does not allow the distribution of documents by the complainant or for that matter any other bargaining agent by the desk drop method.\n\nMs. Larose testified that in the National Capital Region, the employer’s employees are located in 24 buildings. Some of those buildings, like the one on St. Laurent Blvd, are 24/7 operations. Ms. Larose indicated that all the employer’s buildings have bulletin boards except the one located at 11 Sussex Drive, but no employees from the FB group work there. Ms. Larose also stated that only the employer’s president has the authority to grant permission for desk dropping.\n\nMs. Larose testified that she is not aware of any instances when the employer allowed desk dropping and that the employer’s position goes back a few years. Even when it was part of the Canada Customs and Revenue Agency, it still did not allow the method of desk dropping.\n\nMs. Larose said she was surprised to hear the complainant claim that it has desk dropped in the past without the employer’s approval. Ms. Larose testified that the employer’s permission is always required before resorting to desk dropping.\n\nMs. Larose stated that desk drop was never provided for under the collective agreement and that this issue was never raised during the last round of collective bargaining.\n\nMs. Larose explained that desk dropping is just not permitted, regardless of when it is done, since while the person performing the desk drop may be on his or her own time, it does not mean that the employee who receives the material is on break. The practice of desk dropping may impact the employer’s operations.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-13", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 38–40", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Ms. Larose testified that the issue of desk dropping was raised at the UMCC meeting on September 9, 2008 (Exhibit E, tab 14-A, page 5). Ms. Larose indicated that at that meeting, the complainant raised the issues of posting to bulletin boards and the time it took to obtain a response from the employer for such a posting, along with desk dropping. Ms. Larose testified that while the employer undertook to look into the issue of its response time for posting on bulletin boards, the outcome of that meeting was that the employer’s permission was always required for posting. As for the desk drop issue, the employer refused to reply since it was simply not provided for in the collective agreement. Ms. Larose testified that she did not recall any further discussion on the matter and that no grievance or complaint was filed on the issue of desk dropping. Ms. Larose indicated that between September 9, 2008 meeting and March 2013, she was not aware that the complainant had raised the issue of desk dropping.\n\nMs. Larose testified that the bargaining agents have means other than desk dropping to communicate with their members, such as through a list of addresses of employees that is provided to the bargaining agents twice a year. The bargaining agents also have the employees’ email addresses, and can distribute documents outside buildings.\n\nMs. Larose testified that while the content of the bargaining update document (Exhibit G-2) was approved on time and was posted, the employer was still concerned about allowing it to be desk dropped. Ms. Larose indicated that the employer is concerned that if a document is desk dropped during working hours, it will be disruptive, since not all employees are on a lunch or another break at the same time.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-14", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 41–43", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As for the specific event involving the notice of the bargaining agent’s meeting about a bargaining update, Ms. Larose explained that her colleague, Danielle Monette-Latouche, first received an email from Ms. Rajotte, informing her that the complainant intended to distribute the notice to employees. Ms. Larose explained that Ms. Rajotte’s email was forwarded to Stéphanie Houde, who advised Ms. Rajotte on April 8, 2013 that while the notice was approved for posting on the bulletin board, it was not approved for desk dropping or distribution through the employer’s electronic system (Exhibit G-1, tab F).\n\nMs. Larose testified that the complainant, during this or earlier rounds of negotiations did not make any specific demand about the desk dropping of documents.\n\nMs. Larose also pointed out that the report of the public interest commission (PIC) dealing with the FB group issued on June 5, 2013, did not include desk drop distribution as an issue in dispute between the parties (Exhibit E-1, Vol. 1, tab 4). Ms. Larose also referred to examples of complainant notices that in the past were or were not allowed to be posted on the bulletin board (Exhibit E-1, Vol. 1, tabs 5 and 6) as well as an email from management reminding managers about the bargaining agents’ need to obtain management’s approval before posting notices on bulletin boards (Exhibit E-1, Vol. 1, tab 8).", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-15", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 44–46", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Ms. Larose explained that in 2008, she was asked for permission to desk drop calendars from the complainant. Ms. Larose testified that while she did not recall a discussion on the matter, she remembered denying the desk drop request. She also stated that Ms. Stuart did not indicate at the time that she would do it anyway (Exhibit E-1, Vol. 1, tab 10). Ms. Larose stated that no grievance or complaint was filed as a result of the desk drop denial.\n\nMs. Larose indicated that at Ms. Stuart’s request, the bulletin board and desk drop issues were placed on the agenda for the September 9, 2008 UMCC meeting (Exhibit E-1, Vol. 1, tabs 11 to 13). Ms. Larose also explained that the draft minutes of that UMCC meeting were distributed on November 22, 2008 to all UMCC members, including representatives for the complainant, who did not raise any issue with the outcome on the specific issue of bulletin board postings and desk drops (Exhibit E-1, Vol. 1, tab 14-A). Ms. Larose testified that those minutes were approved and that the complainant did not grieve or complain on the issue (Exhibit E-1, Vol. 1, tab 14-A).\n\nMs. Larose concluded by saying that Ms. Rajotte filed a grievance on April 29, 2013, in response to the employer’s refusal to allow her to desk drop the notice, the subject of which is similar to the present complaint. Ms. Larose explained that while the grievance was denied at the second level of the grievance process, the final decision on the matter is still outstanding (Exhibit E-1, Vol. 2, tab 53). In cross-examination, Ms. Larose admitted that the employer has no policy on desk dropping.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-16", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 47", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On the issue of timeliness, the complainant argued that it was within the 90-day time limit prescribed by subsection 190(2) of the Act when it filed the complaint. Counsel for the complainant argued that while a debate occurred at the UMCC meeting of September 9, 2008, the complainant never received a clear answer from the employer. It is only on May 1, 2013 that the complaint really crystallized. It is only when the complainant’s national president wrote to the respondent’s vice president that the complainant received a clear indication of the employer’s position. Before the issue of desk dropping was brought up, there was no clear policy about the employer’s position; there was nothing in writing. Counsel for the complainant stated that desk dropping is its free-standing right and that each time the employer refuses to allow it, the bargaining agent has a right to file a complaint.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-17", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 48–49", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As for the merits of the case, counsel for the complainant argued that by refusing to allow the desk drop distribution of the notice about an upcoming bargaining update meeting, the employer violated sections 106 and 107 and subsection 186(1) of the Act. Essentially, counsel for the complainant argued that “desk drop” is a term and a practice that has been ongoing for many years and is a way, during non-working hours, for the complainant to share information with its members. Counsel for the complainant argued that this is not a case about access to the respondent’s property but rather about the employer preventing the bargaining agent from exercising its right to communicate with its members. Counsel for the complainant insisted that by distributing documents during non-working hours to its members, even though it happened at the employer’s premises, it did not use the employer’s facilities. Therefore, by preventing the complainant from exercising its free-standing right to communicate and represent its members, the employer violated paragraph 186(1)(a).\n\nCounsel for the complainant reviewed the evidence and argued that on April 5, 2013, all Ms. Rajotte wanted was to communicate with her fellow members that a meeting on collective bargaining was to take place (Exhibit G-1, tab F). She forwarded the notice to the employer’s representative only as a courtesy. Ms. Rajotte’s understanding was that she did not need the employer’s permission since the notice (Exhibit G-1, tab F) dealt with bargaining agent business. Counsel for the complainant insisted that no reason was given to explain the employer’s refusal of the desk drop method. Counsel for the complainant maintained that there was no evidence that desk dropping would be disruptive.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-18", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 50–52", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the complainant argued that the method of desk dropping calendars, bargaining updates and elections propaganda has been used several times in the past at different locations and buildings and that it was a long-standing practice that had always been done without incident and with management’s knowledge.\n\nCounsel for the bargaining agent argued that the distribution of its material during non-working hours is a lawful activity and is a free-standing right that it can pursue as long as it does not interfere with the employer’s operations. In this case, counsel for the bargaining agent maintained, there is no evidence to support that such a disruption occurred.\n\nCounsel for the complainant argued that article 12 of the collective agreement deals with the employer’s premises. This matter is not about the use of the employer’s premises. Counsel for the complainant maintained that the employer cannot use its property right to limit the bargaining agent’s ability to communicate with its members. Counsel for the complainant maintained that this case is about whether the method of dissemination of information from the complainant to its members was reasonable and whether the collective agreement expressly prohibits the desk drop method. Counsel for the complainant argued that if the parties wanted to prohibit the method of desk dropping, they would have done so expressly in the collective agreement, and while article 12 deals with posting on bulletin boards, it does not prohibit any other kind of communication, such as desk dropping.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-19", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 53–55", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the complainant insisted that the right for a bargaining agent to communicate with its members is crucial and permissible as long as it is exercised in a reasonable fashion. In the present matter, counsel for the complainant maintained that the evidence demonstrated that issues arose in the past with access to bulletin boards and the most effective way for the complainant to communicate with its members. Moreover, the notice about the upcoming meeting on an update on collective bargaining was very neutral, and it contained nothing detrimental to the employer’s interests. Therefore, the employer’s position is not reasonable.\n\nCounsel for the complainant argued that desk dropping has been a long-standing practice between the parties. It has been done for several years without complaint and without interference to the employer’s operation. It is a legitimate activity for the complainant that is not prohibited by the collective agreement.\n\nIn addition to the argument that the employer violated paragraph 186(1)(a) of the Act, counsel for the complainant also asked that I find that the respondent violated section 107, which deals with the freeze of all terms and conditions of employment that could be included in a collective agreement once notice to bargain is served.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-20", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 56", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the complainant argued that the evidence demonstrated that there had been a long-standing practice in place before notice to bargain was given on February 21, 2011, in which the complainant could resort to the desk-drop method with the employer’s knowledge and without its permission. Counsel for the complainant asked me to apply the “business as usual” approach and to find a pattern in the past in which desk dropping was performed, which could have been embodied in a collective agreement, as per section 107 of the Act. Therefore, by unilaterally stopping that long-standing practice after the notice to bargain was issued, the employer also violated section 107.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-21", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 57", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In support of his arguments, counsel for the complainant referred me to the following decisions: Fording Coal Ltd. v. United Steelworkers of America, Local 7884, [1998] B.C.C.A.A.A. No. 98 (QL); Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2012 PSLRB 58; Heffernan and White v. Treasury Board (Post Office Department) (1981), 3 L.A.C. (3d) 125; Merriman and Union of Canadian Correctional Officers – Syndicat des agents correctionels du Canada (UCCO-SACC-CSN) v. MacNeil and Justason, 2011 PSLRB 87; Canadian General Electric Co. v. United Electrical, Radio and Machine Workers of America (1952), 3 L.A.C. 909; Plainfield Children’s Home v. Service Employees Union, Local 183 (1985), 19 L.A.C. (3d) 412; Time Air Inc. (1989), 77 di 55; Reynolds-Lemmerz Industries, [1994] O.L.R.D. No. 4119 (QL); International Association. of Machinists and Aerospace Workers and District Lodge 147, National Association of Federal Correctional Officers v. Correctional Service of Canada, 2006 PSLRB 76; Air Canada v. Canadian Air Line Employees’ Ass’n (1980), 27 L.A.C. (2d) 289; Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees v. American Airlines Inc. (1981), 43 di 114; CFCN Television (1988), 76 di 8; Hamilton-Wentworth District School Board, [2002] O.L.R.D. No. 2676 (QL); Andres et al. v. Canada Revenue Agency, 2009 PSLRB 36; Quan v. Canada (Treasury Board), [1990] 2 F.C. 191 (C.A.); MacKenzie v. Treasury Board (Employment & Immigration Canada) and Public Service Alliance of Canada v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-21187, 21188, 21189 and 169-02-501 (19910620); Public Service Alliance of Canada v.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-22", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 57–58", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Treasury Board, 2011 PSLRB 106; Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 46; The Queen in right of Canada as represented by the Treasury Board v. Canadian Air Traffic Control Association, [1982] 2 F.C. 80 (C.A.); Canadian Air Traffic Control Association v. Treasury Board¸ PSSRB File No. 148-02-186 (19910724); Canadian Air Traffic Control Association v. Treasury Board¸ PSSRB File No. 148-02-187 (19910502); Public Service Alliance of Canada v. Treasury Board, PSSRB File No. 148-02-118 (19860611); éthier v. Correctional Service of Canada and Union of Canadian Correctional Officers – Syndicat des agents correctionels du Canada - CSN, 2010 PSLRB 7; Roy v. Professional Institute of the Public Service of Canada, 2011 PSLRB 142; Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78; Boshra v. Canadian Association of Professional Employees, 2009 PSLRB 100; and Comiskey v. Jensen et al., 2012 PSLRB 22.\n\nOn the issue of timeliness, counsel for the respondent argued that the complaint should be dismissed since it was filed beyond the 90 days provided for in subsection 190(2) of the Act. Counsel for the respondent pointed out that the issue of whether the complainant can desk drop documents was dealt with at the UMCC meeting in September 2008, at which the respondent clearly indicated to the complainant that desk dropping would not be allowed. Counsel for the respondent maintained that the evidence clearly demonstrated that the complainant was made aware of the employer’s position at the UMCC meeting.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-23", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 59–64", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the respondent indicated that the time limit of 90 days referred to in subsection 190(2) of the Act cannot be extended by Public Service Labour Relations Board (“the Board”). Therefore, the complainant’s complaint should be dismissed as untimely.\n\nAs for the merits of the case, counsel for the respondent argued that the Board’s most recent jurisprudence stands for the proposition that any limitation on the employer’s rights must be prescribed in a collective agreement.\n\nCounsel for the respondent argued that this case clearly involves the use of the employer’s facilities. The notice, (Exhibit G-1, tab F), was to be distributed within the employer’s facilities and on the employer’s desks.\n\nEssentially, counsel for the respondent argued that the only way the complainant can claim the right to communicate with its members by using the employer’s property is if such a right has been negotiated through collective bargaining. The complainant must establish that such a positive right to communicate with members exists in the collective agreement.\n\nCounsel for the respondent argued that such rights for the complainant to communicate with its members using the employer’s facilities have been negotiated by the parties and are embodied in article 12 of the collective agreement under the title of “Use of Employer Facilities.”\n\nHowever, counsel for the respondent argued that article 12 of the collective agreement is self-contained and is limited to the use of bulletin boards and access to the employer’s premises. Counsel for the respondent stressed that no reference is made to desk drop.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-24", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 65–68", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the respondent insisted that a review of article 12 of the collective agreement indicates that the parties addressed the issue of the use of the employer’s facilities, that the complainant negotiated exceptions to the employer’s exclusive control over the workplace, that the complainant has negotiated an effective way to communicate with its members in the workplace within or outside the work hours in every workplace, and that, in clause 12.02, the complainant has recognized that the distribution of material on the employer’s property is in fact a use of the employer’s property.\n\nFor counsel for the respondent, if the bargaining agent wants to increase its ability to expand its information distribution at the workplace, it should be done at the bargaining table.\n\nCounsel for the respondent argued that the complainant’s position that it has a right to desk drop would render article 12 of the collective agreement meaningless inasmuch as the bargaining agent could simply ignore article 12 when it wants to distribute information or material to its members.\n\nCounsel for the respondent argued that it was up to the complainant to file a policy grievance if it was dissatisfied with the way the employer addressed the issue of the bulletin board in article 12 of the collective agreement.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-25", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 69–71", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Reviewing the evidence, counsel for the respondent also concluded that the existing mechanisms as well as the bargaining agent’s ability to communicate outside the employer’s property have proved effective means of communication. Counsel for the respondent referred to the evidence that the bargaining agent is able to use its members’ home contact information, that the bargaining agent has its members’ personal email addresses, that the bargaining agent has a website that could be consulted by its members and that the bargaining agent can continue to distribute material outside the workplace.\n\nCounsel for the respondent insisted that in this case, the complainant had the employer’s approval to post the notice about the update on collective bargaining on bulletin boards one month before the event, which shows that the complainant was not prevented from communicating with its members in a timely fashion.\n\nAs to the law governing the use of the employer’s facilities, counsel for the respondent noted that the jurisprudence appears divided. Counsel for the respondent argued that the jurisprudence cited by the employer is more relevant to the employer’s property rights, collective bargaining and the employer’s statutory authority under the Financial Administration Act, R.S.C. 1985, c. F-11 (FAA).", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-26", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 72", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the respondent referred me to sections 7 and 11 of the FAA, essentially stating that in this case, and contrary to the private sector, the FAA confers general management rights, including property rights, on the employer, which can be limited only through collective bargaining. Counsel for the respondent maintained that the parties have already negotiated provisions addressing the issues of communication and the use of the employer’s facilities as per article 12 of the collective agreement. Nothing in article 12 or in the whole collective agreement for that matter deals with desk dropping. The only way to expand on article 12 and thus restrict the employer’s general rights under the FAA is through collective bargaining.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-27", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 73–75", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the respondent concluded that, in addition, there is just no evidence to suggest that the employer violated its duty to bargain in good faith as per section 106 of the Act. Specifically, counsel for the respondent argued that in no way did the evidence support that the employer acted differently and discriminated against the complainant. He pointed out that the employer’s position vis-à-vis the issue of desk dropping has always been the same, regardless of bargaining agent. As for the issue of the prohibition imposed on the employer from interfering with the administration of a bargaining agent, referred to in subsection 186(1), counsel for the respondent indicated that the concept of “administration” contemplated in that subsection is an in-house issue and does not include communications between the bargaining agent and its members. Alternatively, he argued that the employer’s position is within its property rights and that the notice was posted well in advance on the bulletin boards. Thus, it cannot be argued that the employer prohibited the complainant from communicating with its members.\n\nAs for the complainant’s allegation that the employer also violated section 107 of the Act, which deals with the freeze period, counsel for the respondent argued that, in this case, the employer has always been consistent in its approach that desk dropping is not allowed. Therefore, it cannot be argued that the employer changed a term and condition of employment during the freeze period.\n\nFinally, counsel for the respondent concluded that the evidence demonstrated that the desk dropping of the notice had a negative impact on the employer’s operations.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-28", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 76", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In support of his arguments, counsel referred me to the following decisions: Babcock et al. v. Attorney General (Canada), 2005 BCSC 513; Brescia v. Canada (Treasury Board), 2005 FCA 236; Li v. Canada (Citizenship and Immigration), 2011 FCA 110; Merriman; Public Service Alliance of Canada v. Treasury Board, 2011 PSLRB 106; United Rubber, Cork, Linoleum and Plastic Workers of America v. Michelin Tires (Canada) Ltd., [1979] N.S.J. No. 794; Telus Communications Inc. v. Telecommunications Workers Union (2010), 195 L.A,C, (4th) 334; Bay v. Retail, Wholesale Department Store Union, Local 1000 (1990), 16 L.A.C. (4th) 298; Skeena Cellulose Inc. v. Industrial Wood and Allied Workers of Canada (I.W.A. Canada), [2002] B.C.L.R.B.D. No. 267 (QL); Canadian Union of Operating Engineers and General Workers v. Brookfield Management Services Ltd. (BCE Place), (2000) C.L.R.B.R. (2d) 238; Convention Centre Corp. v. C.U.P.E., Loc. 500 (Union Buttons) (1997), 63 L.A.C. (4th) 390; Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 46; Public Service Alliance of Canada et al. v. Canadian Grain Commission et al., [1986] 5 F.T.R. 51; Peck v. Parks Canada, 2009 FC 686; Almeida v. Canada (Treasury Board), [1991] 1 F.C. 266 (C.A.); Quan; Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 43; International Association of Machinists and Aerospace Workers and District Lodge 147, National Association of Federal Correctional Officers; Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2012 PSLRB 58; Pronovost v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 93; and Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-29", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 77–81", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At the outset, I would like to point out that the parties to these proceedings referred me to 45 decisions. While some facts and issues involved in those decisions bear some resemblance to the ones in this complaint, they remain different. In addition, while I appreciated and considered the legal aspects of those decisions, I will not, with few exceptions, refer to them.\n\nThe issue I have to decide is whether the employer, by preventing the complainant from distributing through the desk drop method an invitation to its members to attend a meeting on collective bargaining, violated sections 106 and 107 and paragraph 186(1)(a) of the Act.\n\nBefore doing so, I must first address the employer’s argument that the complaint should be dismissed since it was not filed within the 90 days prescribed in section 190 of the Act.\n\nSubsection 190(2) of the Act reads as follows: 190. (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.\n\nEssentially, the employer argued that at the September 9, 2008 UMCC meeting, the complainant was clearly told that desk dropping would not be allowed and that the complainant then had 90 days from that date to file its complaint.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-30", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 82–85", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I am not convinced. I agree with counsel for the bargaining agent that the evidence is contradictory as to the parties’ understanding following the UMCC meeting of September 9, 2008, and for a long period after that. However, as of April 8, 2013, the undisputed evidence is that it was then clear to both parties that the employer’s position was not to allow desk dropping within its facilities. In my view, the 90-day limitation period runs from April 8, 2013, which in this case is the date on which the complainant knew for certain the action or circumstances giving rise to the complaint. The complaint was filed on May 13, 2013. It is therefore timely.\n\nI will turn now to the merits of the case. In this matter, the complainant bore the burden of proof and had to demonstrate that, by refusing to allow the desk drop of the invitation to a meeting on collective bargaining, the employer violated sections 106 and 107 and subsection 186(1) of the Act. I should also point out that no reference to the Canadian Charter of Rights and Freedoms was made during these proceedings.\n\nIt is important to keep in mind that in this case, the content of the invitation (Exhibit G-1, tab F) is not an issue. In other words, the parties admitted that there is nothing against the interests of the employer in that invitation. The employer’s refusal is not linked to the content of the invitation; as a matter of fact, the employer authorized its posting on the bulletin boards. The employer objected to its distribution method.\n\nEssentially, the complainant claimed that this matter is not about the employer’s property rights but rather about the fundamental right of the bargaining agent to communicate with its members and that it has a free-standing right to communicate with its members through desk drop.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-31", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 86–88", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As I understand it, the complainant’s argument is that it enjoys an unfettered right to communicate with its members regardless of the employer’s property rights. Moreover, as I will explain later, counsel for the complainant argued that even if I consider the employer’s property rights argument, this case should be distinguished from other decisions involving the employer’s property rights cited by counsel for the respondent.\n\nDealing first with the issue of employer’s property rights, I should point out that it is not disputed that the complainant distributed the notice on desks that belong to the employer, located within its facilities. I find that the distribution of material through the desk drop method involves the use of the employer’s property. For me, it is quite clear that the employer’s property, such as its desks and premises, were the conduit for the distribution, and that cannot be ignored.\n\nHaving concluded that the desk drop of documents involved the employer’s property, the question becomes whether the bargaining agent has an unfettered right to communicate that can be exercised regardless of the employer’s property rights?", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-32", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 89", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I do not think so. I agree that the rights of a bargaining agent, as a certified bargaining agent for employees, include the general right to communicate with its members. However, in my opinion, that right is not absolute and has to be balanced against, in this case, the employer’s property rights. In the present matter, I fail to see what authority would give the complainant a free-standing right to desk drop its communications using the employer’s facilities without its consent. As I understand counsel for the complainant’s argument, the bargaining agent in this case claims an unfettered right to communicate via desk dropping with its members that would trump the employer’s right to its property. Again, while I agree that the bargaining agent has a general right to communicate with its members, it does not have the right to use the employer’s facilities to do so unless that right is expressly provided for. In other words, and in this specific context, article 12 of the collective agreement speaks to the bargaining agent’s ability to use the employer’s premises to communicate with its members. The parties have dealt with this issue in article 12 of the collective agreement and it covers all issues related to the bargaining agent’s communication with its members using the employer’s premises.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-33", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 90", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I agree with counsel for the respondent that some of the respondent’s rights are provided by virtue of the legislation, namely, sections 7 and 11 of the FAA, which deal with personnel management. Those provisions clearly give general authorities to the employer with respect to personnel management. In my view, only a clear indication in legislation or other contractual authorities can set aside those rights of the employer. As decided in Canadian Grain Commission et al. at para 52: It is common ground that the general management rights conferred on the Treasury Board may be substantially circumscribed by negotiated terms and conditions of employment embodied in a collective agreement… This principle is also found in article 7 of the collective agreement which recognizes that the authority of management is limited by the terms and conditions of the agreement.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-34", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 91", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In this case, that is precisely what the employer has done. It deliberately agreed to limit its property rights by allowing the bargaining agent to use its property to communicate with its members. Both parties agreed at the bargaining table to the terms of article 12, which reads in part as follows: 12.01 Reasonable space on bulletin boards, in convenient locations, including electronic bulletin boards where available, will be made available to the Alliance for the posting of official Alliance notices. The Alliance shall endeavour to avoid requests for posting of notices which the Employer, acting reasonably, could consider adverse to its interests or to the interests of any of its representatives. Posting of notices or other materials shall require the prior approval of the Employer except in the case of notices related to the business affairs of the Alliance, including posting of the names of Alliance representatives, and social and recreational events. Such approval shall not be unreasonably withheld. 12.02 The Employer will also continue its present practice of making available to the Alliance specific locations on its premises and, where it is practical to do so on vessels, for the placement of reasonable quantities of literature of the Alliance.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-35", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 92", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I believe that by agreeing with the bargaining agent to the terms of article 12 of the collective agreement, the employer agreed to a limitation of its property rights by allowing, subject to certain conditions, bargaining agents to use bulletin boards for communicating with their members. In my view, article 12 is self-contained and specific as to the limitations imposed on the employer. I do not believe that any other means of communication can be read into it, such as the right for bargaining agents to desk drop documents related to the business affairs of the Alliance on employees’ desks without the employer’s consent. While in this particular case the content of the notice that was to be distributed through desk drop is not an issue, nevertheless, the method, a desk drop, is not insignificant in a workplace and can be very disruptive. I am convinced that if the parties sought the need to embody the use of bulletin boards in a collective agreement, they could have also done so for the desk dropping of bargaining agent documents.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-36", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 93", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As mentioned, article 12 of the collective agreement not only deals with the employer’s property rights per se but also refers, in clause 12.01, to another means of communication for the bargaining agent with its members: the use of the bulletin board. With the negotiation and inclusion of article 12 in the collective agreement, clearly the employer limited its property rights, and at the same time, the bargaining agent negotiated some rights that gave it access to the employer’s property. I cannot help but conclude that in negotiating a clause on the use of bulletin boards, the bargaining agent recognized the employer’s property rights and felt at the time of the negotiation the necessity to incorporate in the collective agreement such a provision. Why did it do so if it has a free-standing right to communicate with its members that supersedes the employer’s property rights? Clause 12.01 includes the right, under certain conditions, for the bargaining agent to use the bulletin boards; it does not include a positive right for the complainant to use the respondent’s facilities for desk dropping. If the complainant wants to do so, it has to obtain the employer’s permission or to negotiate such a right in the collective agreement, as it did for the use of the bulletin boards.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-37", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "para 94", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In Merriman, the Board member examined whether the employer’s decision to deny Mr. Merriman access to the employer’s telephone system constituted an unfair labour practice under section 185 of the Act. The Board member decided at paragraphs 27 and 28 as follows: [27] . . . This raises the issue of the extent to which employer property is available to an employee organization for the purposes of communicating with and representing its members and whether the use of an employer’s telephone system by an employee organization is protected under the unfair labour provisions of the Act. [28] I note certain provisions in the applicable collective agreement … that are relevant here. Clause 9.01(a) requires the employer to make available to the employee organization “[r]easonable space on bulletin boards … for the posting of official … notices …” of the employee organization. This is a common provision in collective agreements that permits employee organizations to have access to what would otherwise be the exclusive property of the employer. Similarly, clause 9.01(b) permits the employee organization to use the employer’s electronic network to distribute information to members, with some conditions. Clearly, the objective of these provisions is to create a contractual right that permits the employee organization to use employer property for certain specified purposes. The corollary of these provisions is that, generally, an employee organization does not have the right to use employer property to communicate with its members. Where that right exists it is usually a result of collective bargaining. [Emphasis added]", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-38", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 95��96", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Moreover, to agree with the complainant’s proposition that it has an unfettered right to communicate through desk drop despite the employer’s property rights would in my view render clause 12.01 of the collective agreement completely meaningless. Under that scenario, the bargaining agent could then completely ignore clause 12.01 and just proceed with desk dropping or, in situations in which the employer denies the bargaining agent’s request for posting on a bulletin board, the bargaining agent could then simply distribute its documents through the desk drop method.\n\nCounsel for the complainant insisted that this case should be distinguished from other cases involving employer facilities such as bulletin boards, photocopiers, etc. For me, the action of desk dropping a document within the employer’s premises, on the employer’s desks, is clearly a use of the employer’s property. In my view, it can be likened to another means of communication, such as the use of a telephone within the employer’s facility. Looking at this very issue of a bargaining agent’s right to communicate and an employer’s property rights, the Board member decided as follows in Merriman, at paragraph 32: [32] … Again, the telephone system at issue is the property of the employer, it is subject to the control and regulation of the employer and I am unable to find in this case a legal restriction on how the employer uses its property.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-39", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 97–98", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Again, I am of the view that the distribution of the invitation to a meeting (Exhibit G-1, tab F) was clearly done by using the employer’s facilities. The complainant insisted that the desk drop was done outside working hours and that therefore there was no impact on the employer’s business operations. I am not convinced. The evidence is inconclusive as to when exactly the desk drops took place. However, it is clear from the evidence that employees’ lunch and break times differ and that the notice could well have been dropped on the desk of a working employee. Therefore, I cannot conclude that it was done outside working hours and that there was no impact on the employer’s operations.\n\nCounsel for the complainant argued that the evidence was that using bulletin boards is not always efficient, often due to their location, and that desk dropping better draws members’ attention. While issues might arise with location and with the time it takes to obtain the employer’s approval to post on bulletin boards, those are not reasons to bypass the mechanisms that, through collective bargaining, the parties have chosen for communications between a bargaining agent and its members using the employer’s property. While it appears that using bulletin boards may be frustrating at times for the complainant, it is up to the bargaining agent to challenge the problems related to bulletin boards through policy grievances or through collective bargaining.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-40", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 99–101", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the complainant also made the argument that by refusing distribution via desk dropping, the respondent prevented it from communicating with its members. I disagree. The undisputed evidence is that while the employer objected to distributing the notice through desk dropping, it nevertheless allowed for its posting pursuant to clause 12.01 of the collective agreement a month before the planned event. Therefore, I do not find that the employer prevented the bargaining agent from communicating with its members.\n\nMoreover, in the present matter, the communication and the method chosen to communicate should be distinguished. The employer did not object to the communication per se but objected to the method used by the complainant. The employer prohibited desk dropping. In Merriman, the Board member stated as follows at paragraph 30: [30] In my view, restricting how a member contacts his or her employee organization is not the same as preventing any contact at all; a distinction must be made between the communication and the mechanism or medium of the communication… [Emphasis in the original]\n\nMoreover, the evidence also disclosed that the complainant could have distributed the notice outside the employer’s premises, which was done in the past, could have used the list of employees that the employer provides it with twice a year to reach its members, or could have posted on its website the information about the upcoming meeting.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-41", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 102–103", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Therefore, with respect to its duty to bargain in good faith, I conclude that the employer did not violate section 106 of the Act. This issue of desk drop was simply never part of collective bargaining between the parties. I simply fail to see any relationship or evidence that this was an issue at the bargaining table or that this dispute intensified with collective bargaining.\n\nAs for subsection 186(1)(a) and (b) that deals with the formation and administration of an employee organization, the representation of employees and discrimination against an employee organization, it is clear to me that this subsection is designed to prevent the employer’s involvement in internal union affairs. There is simply no allegation or evidence of such in the present matter. There is also no evidence or even any allegation that the employer discriminated against the complainant; the evidence disclosed that all bargaining agents were treated the same.", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359013-42", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 138", - "act_short": "PSAC v TB (CBSA)", - "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", - "marginal_note": "paras 104–107", - "heading": "Policy grievance; collective agreement interpretation at the CBSA", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the complainant made the argument that the employer violated section 107 of the Act, which deals with the freeze of all terms and conditions that were in place when notice to bargain was served and that could be embodied in a collective agreement. The complainant’s argument is essentially that the employer, by refusing to allow it to use desk dropping, changed a long-standing practice, contrary to section 107. As stated earlier, the evidence as to whether a past practice existed is contradictory. Witnesses for the complainant testified that they used that method for a long period for all kinds of documents in different locations, while the employer’s witnesses challenge that position through testimony, a summary of the UMCC meeting and Ms. Larose’s email of January 16, 2008 that specifically opposed the desk drop distribution of documents (Exhibit E-1, tab 10). In my view, the evidence as to whether the desk drop method was used and was condoned by the employer is inconclusive. The complainant had the burden of proof. I am not convinced that the evidence supported the existence of a long-standing practice. Therefore, I cannot conclude that the employer violated section 107.\n\nFinally, I cannot help but notice that neither party raised those specific matters in their respective demands during the current or previous rounds of collective bargaining or that they have been referred to the PIC. It certainly would have been a good forum to settle these matters.\n\nFor all of the above reasons, the Board makes the following order:\n\nThe complaint is dismissed. November 13, 2013. Linda Gobeil, a panel of the Public Service Labour Relations Board", - "current_to": "2013-11-13", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" - }, - { - "id": "fpslreb-359065-1", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 1", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Canada Labour Code\n\nBefore a panel of the PublicService Labour Relations Board\n\nBETWEEN\n\nEUGENIA MARTIN-IVIE\n\nComplainant\n\nand\n\nTREASURE BOARD(Canada Border Services Agency)\n\nRespondent\n\nIndexed asMartin-Ivie v. Treasury Board (Canada Border Services Agency)\n\nIn the matter of a complaint made under section 133 of the Canada Labour Code\n\nREASONS FOR DECISION\n\n1 The complainant, Eugenia Martin-Ivie, alleges that the respondent, the Canada Border Services Agency (CBSA) threatened to take disciplinary action against her for exercising her rights under Part II of the Canada Labour Code, R.S.C. 1985, c. L-2 (“the Code”), in violation of sections 133 and 147 of the Code by undertaking a professional standards investigation (“the investigation”) into the production of protected CBSA documents at a hearing before the Occupation Health and Safety Tribunal (OHST) in support of her argument that her refusal to work was justified.\n\n2 At the outset of the hearing, the parties submitted the following agreed statement of facts that sets out the foundation of this complaint:\n\n3 Many exhibits were also submitted by consent, one of which was the complete investigation report. The parties jointly requested that it (Exhibit 3) be sealed as it outlines the allegations, evidence, and conclusions related to the similar allegations, made against three other CBSA employees who were also involved in the production of documents used before the OHST.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-2", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 2", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "4 As those employees were not part of the complaint before me, I have concluded that, after a review of the report, to allow it to be open to the public would cause harm to the others mentioned in it. The information, if left unsealed, could be harmful to the reputations of people who are not involved in the complaint before me and who have not agreed to the publication of the findings of the investigation into their activities or had the opportunity to defend themselves before me. Furthermore, it is not in the best interests of the Public Service Labour Relations Board (“the Board”), or those who appear before it, to publish more personal information than required for the purposes of this decision. For those reasons, and consistent with the “Dagenais/Mentuck” test, I ordered Exhibit 3 sealed. A redacted version of the report, filed as Exhibit 1, Tab E, will not be sealed. This will satisfy the need of this Board to be open, transparent and accessible in its proceedings as they relate to the complaint before me.\n\n5 Dan Badour, Director, Enforcement and Intelligence, Southern Ontario Region, CBSA, testified on behalf of the CBSA. He has been involved with the intelligence program since 1993 and testified as an expert witness on security matters on behalf of the CBSA before the Occupational Health and Safety Tribunal.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-3", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 3", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "6 In preparation for the hearing, Mr. Badour met with Treasury Board Secretariat (TBS) legal counsel and the CBSA headquarters labour relations advisor assigned to the matter to review material prepared for disclosure by the respondent to the complainant. He reviewed documents disclosed by the complainant’s counsel related to matters of “lookout” and intelligence procedures. Included in the complainant’s package were intelligence bulletins and “lookouts” which are intelligence information intended to inform the various CBSA components of police investigations, CBSA investigations, partner investigations and officer safety bulletins to inform those involved of ongoing safety concerns. The information contained in these bulletins is classified “Protected B” as it contains names of suspects, licence plate information, vehicle descriptions and a narrative on the nature of the investigation.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-4", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 4", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "7 Mr. Badour reviewed the materials disclosed by the complainant to ensure that the “lookout bulletins” related specifically to the matters that gave rise to her refusal to work. He reviewed other documents disclosed by the complainant to ensure that there were no operational security concerns with their disclosure, which exist if the documents relate to an active CBSA or police investigation. In such cases, disclosure outside the CBSA could jeopardize the health and safety of officers engaged in the investigations, the success of the investigations, and the relationships and confidence in the security of information provided by outside agencies to the CBSA. The partner agencies consist of local law enforcement, provincial police, the Royal Canadian Mounted Police, the Canadian Security and Intelligence Service, and international agencies such as the United States Department of Homeland Security and other border agencies.\n\n8 “Lookout bulletins” are contained primarily within two CBSA systems. Frontline border services officers (BSOs) have access to them electronically. Sometimes they are provided on paper. If so, they may be transmitted to the local security intelligence officer and then delivered to a border crossing. When produced on paper, they may be posted in briefing rooms. Electronic versions may be accessed on the electronic notice board available to BSOs. They may also be sent by the regional superintendent. Only those with a valid enhanced reliability status (or higher) have access to lookout bulletins.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-5", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 5", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "9 The complainant emailed Protected B documents to her legal counsel without encrypting them, as is required. If a Protected B document is sent unencrypted, there is a risk of a loss of control over its distribution and how it can be received. There is no control over the extent of the transmittal of an unencrypted document into the public domain. Around the same time as Ms. Martin-Ivie’s appeal to the OHST, CNN (the television news network) broadcast a lookout bulletin in one of its reports unrelated to the complainant, which significantly embarrassed the CBSA.\n\n10 While being cross-examined by counsel for Ms. Martin-Ivie before the OHST, a Protected B lookout bulletin was put to Mr. Badour as an exhibit. It indicated that there was an active CBSA Vancouver Intelligence Office investigation. Using it as an example, he was questioned about how that type of document was produced.\n\n11 That document was not included in the package of documents disclosed by the complainant’s counsel and had not been reviewed at the earlier meeting. It indicated that it had been faxed from the Coutts, Alberta, port of entry. The respondent concurred with releasing the lookouts that Mr. Badour reviewed for the purposes of the appeal hearing. There was no such agreement on the use of the lookout bulletin he was shown at the hearing. His first reaction was to wonder who approved its release and how it was transmitted.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-6", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 6", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "12 Following his testimony, Mr. Badour spoke with Tammy Edwards, Manager, Occupational Health and Safety Division, CBSA (who was at the hearing), and expressed his concerns with how the lookout in question was accessed, transmitted and disclosed. Upon his return to his office in Ottawa, he queried the National Lookout System and determined that the lookout presented to him in cross-examination had been accessed at the Port of Coutts, Alberta, shortly before his testimony. In his opinion, it constituted a breach of the CBSA’s “National Lookout Policy,” which is derived from the CBSA’s “Information Management Security Policies” and section 107 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).\n\n13 Ms. Edwards was apparently unaware of the policies surrounding the use and release of lookouts. Mr. Badour briefed her on the rules of sharing and disclosing protected information. To follow up on his concerns, he sent her an email (Exhibit 6) providing an overview of Information Management Security and including excerpts from the policy and relevant legislation.\n\n14 In May 2011, Mr. Badour was contacted by Franca Passannante, Senior Investigator, Professional Standards and Investigations Branch, CBSA, the professional standards investigator assigned to investigate his concerns. He forwarded Exhibit 6 to her for use in her investigation into the inappropriate access, release and transmission of Protected B information by four people who had been involved in the work stoppage and appeal, either directly or indirectly.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-7", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 7", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "15 Mr. Badour described his role in the conduct of the investigation as peripheral. He raised the concerns, wrote an email to Ms. Edwards and spoke to Kevin Hewson, District Director, Southern Alberta District, CBSA, about his concerns. He was interviewed as part of the professional standards investigation. He had no input into the report or the conclusions after he was interviewed. He was not familiar with Exhibit 14, the occurrence notification that reported the alleged breach of the “Code of Conduct Confidentiality and Disclosure of Information,” which stated the following:\n\nIt is alleged that in late 2010, numerous employees facilitated and transmitted Protected A, B and Third Party Information, without authorization, to a private law firm which was used by the defendants in a Health and Safety Tribunal in December 2010. The information was transmitted improperly and against policy through unencrypted email and unsecure facsimile.\n\n16 On cross-examination, Mr. Badour admitted that he spoke to people other than Ms. Edwards about his concerns. When he spoke to Ms. Edwards, she was accompanied by Maureen Noble, Superintendent at the Port of Coutts. He did not remember that Richard Fader, TBS legal counsel at the appeal, was also present, although he admitted that it was possible. His primary concern at that point was the access to and transmission of the lookout bulletin put to him on cross-examination and the role of the supervisor at the port who faxed the document. He advised those present that he would investigate his concerns.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-8", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 8", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "17 The next day, Mr. Badour called Mr. Fader and asked for a copy of the document entered into evidence to obtain the fax transmission information. He then queried the Integrated Customs Enforcement System to determine who had accessed the lookout in question. A week later, he sent Exhibit 6.\n\n18 Mr. Badour admitted that there was a concern about pursuing an investigation into the matter while the decision of the Occupational Health and Safety Tribunal was pending, as is evidenced in Exhibit 10. His role in initiating the investigation was limited to presenting the facts to Ms. Edwards. The professional standards investigation ensued after that.\n\n19 Mr. Badour testified that he was aware that the employees investigated could face discipline depending on the conclusions in the report but stated it was only one possibility. He would not have been surprised had the respondent been contemplating discipline.\n\n20 Ms. Passannante, testified that she is tasked with investigating allegations of misconduct by CBSA employees. The allegations can include any violation of CBSA policies, anything that may be criminal, and anything that could bring the CBSA’s reputation into disrepute or harm its relationships with its outside partners. Based on the evidence she gathered in the course of her investigation, she concluded as follows:\n\n62. The allegation that Eugenia MARTIN-IVIE breached the CBSA Security Policy, “Chapter 9: Protection of Classified and Protected Information and Assets outside the Workplace”, paragraph 2, when she forwarded through unencrypted email, Protected B information to an external recipient, is founded.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-9", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 9", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "21 A professional standards investigation is very serious. Ms. Passannante investigates all issues of misconduct, including breaches of the CBSA’s security policy. However, she does not decide whether to take disciplinary action and, if so, what type. She was not aware of any disciplinary action in this case, but in most cases, professional standards investigations result in disciplinary action of some type.\n\n22 In cross-examination, Ms. Passannante was asked about any conversations she had with CBSA management about the scope of her investigation. She testified that the discussions were between her director general and regional management. They decide on the scope of the investigation between them. She received no specific directions from her manager about the investigation. When asked if she had any conversations with management in the Prairie region, she testified that she had not. However, when presented with Exhibits 16 and 17, she admitted having had conversations with Mr. Hewson related to the investigation, its focus and to an audit of the complainant’s email account. On February 21, 2010, as seen in Exhibit 16, Hewson advised Passannante that Martin-Ivie had “… pulled a work refusal under CLC part II on Tuesday Feb. 15, 2011 …” He recommended that based on this, Passannante conduct another audit of Martin-Ivie’s email account.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-10", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 10", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "23 In Exhibit 17, an email he sent on March 1, 2011, Mr. Hewson recommends a review of the complainant’s systems accesses and personal hard drive space to “find further evidence” that she was reviewing all lookouts to determine if they should be changed to “Armed and Dangerous.” Mr. Hewson described her actions as her “… cause as a CIU representative in the workplace and is further evidenced in her OSH appeal …” On March 2, 2010, Ms. Passannante replied to Mr. Hewson that the complainant “… should not be going through every lookout in order to identify those that she deems may have health and safety issues.”\n\n24 The complainant testified on her own behalf. She testified that she had forwarded emails including lookouts to her legal counsel for use at her OHST hearing. They were forwarded to her unencrypted by another BSO. It is not a standard practice, according to the complainant, to encrypt emails at the Port of Coutts. It was a standard practice only for managers. She had no concerns with forwarding the emails outside the CBSA to her legal counsel as she believed that they would be covered by solicitor-client privilege. She maintained that it was her duty under the Code to provide her solicitor with sufficient evidence to support her appeal before the OHST.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-11", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 11", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "25 The complainant was not concerned about the content of the materials that she emailed to her legal counsel because they were sent to her unencrypted, and she forwarded them assuming that solicitor-client privilege applied. She also hand-delivered documents that she did not have in electronic format. She did not ask for permission to release any of the documents. It was her responsibility and obligation to provide as much information and as many examples as possible in defence of her refusal-to-work appeal. The documents she provided to her legal counsel were intended to demonstrate that the reason for the work refusal continued to apply at the time of the OHST hearing.\n\n26 According to the complainant, it is negligent for BSOs not to review lookouts. She looks at every one sent to her. It is her responsibility to be aware of what lookouts she might encounter on her shift. It was not her “cause” as a union representative, as Mr. Hewson stated in the following email (Exhibit 17):\n\nIn a discussion with two of my superintendents yesterday, it has become apparent to me that respondent looks at every single lookout, watch-for or BOLO and reviews them to see if they should be changed to Armed and Dangerous status. This appears to be her cause as a CIU representative in the workplace and is further evidenced in her OSH appeal and the recent work refusal under CLC part 2 on Feb. 15, 2011.\n\n(Sic throughout)", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-12", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 12", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "27 The complainant stated that, if she believes the work is dangerous and needs to be identified as such, she does so. She files her work refusals as an employee, not as a union representative. She goes through every lookout sent to her to ensure that there is no discrepancy between the source’s information and the information in the lookout. It is a health and safety issue not to, as an unarmed officer responds differently when faced with someone identified on a lookout. She is legitimately concerned when the “Armed and Dangerous” tag is not on a lookout.\n\n28 When she was advised via email (Exhibit 2, Tab B) that she was the subject of a professional standards investigation, she became concerned that it would have a negative impact on her career. She was also afraid of potential disciplinary action against her as she was aware that the regional labour relations group uses such investigation reports to determine what, if any, discipline is appropriate. She was aware that a violation of section 107 of the Customs Act could result in termination. Ms. Martin-Ivie was advised on January 18, 2012 that she had been found culpable of the allegations against her. She expected disciplinary action at any point after that.\n\n29 On June 24, 2012, she met with CBSA management in the Southern Alberta District via teleconference, accompanied by Jason McMichael, current First National Vice-President of the Customs and Immigration Union. She was advised that she was there for a “learning conversation,” which she had never heard of, rather than the disciplinary action she anticipated.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-13", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 13", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "30 Mr. McMichael testified that, of the more than 20 professional standards investigations he has been involved with as a union representative, all but one (this one) resulted in disciplinary action against the employee. Such investigations are very serious and involve the most serious of allegations such as anything from breaches of policies to criminal investigations. Never has he come across a “learning conversation.”\n\n31 This case deals with whether there has been a violation of sections 133 and 147 of the Code. Subsection 133(1) requires a violation of section 147. The test to determine whether a violation of section 147 occurred is expressed in paragraphs 62 and 64 of Vallée v. Treasury Board (Royal Canadian Mounted Police), 2007 PSLRB 52, as follows:\n\n62 The question that is to be resolved in this case is whether the complainant has been a victim of reprisals for his denunciation of the hazardous working conditions in which he found himself …\n\n64 Thus, the complainant would have to demonstrate that:\n\na) he exercised his rights under Part II of the CLC (section 147);\n\nb) he suffered reprisals (section 133 and 147 of the CLC);\n\nc) these reprisals are of a disciplinary nature, as defined in the CLC (section 147); and\n\nd) there is a direct link between his exercising of his rights and the actions taken against him.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-14", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 14", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "32 In this case, the complainant met the first part of the test. She exercised her rights under Part II of the Code. She then had to establish that she suffered reprisals of a disciplinary nature. If she were unable to, the complaint must be dismissed. If it is determined that there was a disciplinary reprisal, there must be a link between the exercise of her rights under Part II of the Code and the disciplinary action taken by the respondent. (See: Gaskin v. Canada Revenue Agency, 2008 PSLRB 96, at paragraph 62, and Tanguay v. Statistical Survey Operations, 2005 PSLRB 43, at paragraph 14).\n\n33 In the case before me, the complainant was not dismissed, laid off or demoted. There was no evidence of a financial penalty. Nor was there any evidence of a threat of discipline. At paragraph 19 of the Tanguay decision, the Board member accepts the definition of “penalty” as a “punishment or award to ensure the performance of an action” or as a “punishment established or inflicted by a law or some authority to prevent a prohibited act.” The complainant was not punished for pursuing her rights under the Code. Nothing can be used by the complainant to establish that she suffered reprisals or disciplinary action as a result of her exercise of her rights under Part II of the Code.\n\n34 It is a pure question of fact whether the complainant was punished. Following an investigation, she was required to participate in a learning conversation, which was neither a penalty nor punishment.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-15", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 15", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "35 Conducting an investigation is not discipline. It is fact-finding. No conclusion was drawn in this case. It provides an opportunity for a complainant to clarify a situation. Expecting discipline as a result of the investigation is not a threat of discipline as prohibited by section 147 of the Code. (See Chamberlain v. Treasury Board (Department of Human Resources and Skills Development), 2010 PSLRB 130, at paragraph 95). The mere fact of conducting an investigation is not tantamount to discipline or the threat of discipline.\n\n36 Brown and Beatty, in Canadian Labour Arbitration, 4th edition, discuss the nature of disciplinary sanctions at section 7:4210. In deciding whether an employee has been disciplined, an arbitrator or adjudicator must consider both the purpose and the effect of the employer’s actions. The essential characteristic of disciplinary action is the intention to correct bad behaviour. An employer’s assurance that it did not intend its actions to be disciplinary often, but not always, settles that question. A disciplinary sanction must at least have the potential to prejudicially affect an employee.\n\n37 How is a learning conversation discipline, when it is not even a warning of discipline? The complainant was not punished in any way; nor did the respondent intend to punish her. The learning conversation did not have the potential to negatively affect her. There was no reprimand or warning; nor was a mention of it on her file. Nothing suggests that the respondent cautioned her that a failure to comply on her part in the future could result in discipline.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-16", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 16", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "38 The possibility of discipline as a result of an investigation is not the same as a threat. No one threatened the complainant with discipline. The respondent’s primary concern was with another employee, who faxed protected information to someone outside the CBSA. The complainant might have assumed or expected that discipline would result from her release of protected information to her legal counsel, but that is not a threat.\n\n39 The evidence is that, despite the investigation, the complainant has continued to act in a position above her substantive BSO level. Her career prospects were not affected. She suffered no disadvantage as a result of the investigation. The evidence in general does not establish that she was subject to a penalty; nor was any threat made of disciplinary action (implicit or explicit). For those reasons, she failed to meet the all the requirements of the test set out in Vallée. As the complainant is unable to meet the test, this complaint must be dismissed.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-17", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 17", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "40 The complainant exercised her rights under Part II of the Code. As a result, the respondent threatened her with disciplinary action. It was not an overt threat. The professional standards investigation could have led to discipline. Clearly, the respondent contemplates discipline when initiating a professional standards investigation (Exhibit 18). Discipline was always a possibility until the complainant was informed that, rather than being disciplined, she was to participate in a learning conversation. The professional standards investigation was precipitated by her disclosure of CBSA information to her legal counsel in advance of her hearing before the OHST. Had she not disclosed that information, there would have been no investigation. The respondent cannot say that a professional standards investigation is merely an administrative fact-finding action when, if it is determined that the employee being investigated violated one of the policies or some other policy, disciplinary action will result. Nor can the respondent be allowed to circumvent the Code by not disciplining the employee and substituting a new device such as a learning conversation. What is relevant is the threat of discipline.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-18", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 18", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "41 Consistent with the Chamberlain decision, the investigation was not disciplinary. However, was it a threat? The existence of a threat is a question of fact. Exhibit 2, Tab B, states that the complainant was subject to a professional standards investigation for “… unlawful disclosure of CBSA information to Raven, Cameron, Ballantyne & Yazbeck law firm …” The respondent’s witnesses acknowledged the seriousness of the allegations. Exhibit 6 lists the penalties that could have resulted in the event that the complainant was found guilty of the allegations against her. It is a reasonable conclusion that she would have been subject to disciplinary action in those circumstances.\n\n42 The CBSA was very selective in whom it targeted. Only those involved in the work refusal complaint under Part II of the Code were investigated. It does not matter that discipline was not imposed on the complainant. The point is not what the CBSA did or did not do as a result of the conclusions in the investigation report. The fact that those involved in the complaint were subject to a professional standards investigation is sufficient to deter employees from exercising their rights under the Code. The evidence is that the complainant would now think twice before taking advantage of the protections that the Code offers employees. The fact that the complainant has been successful in her career despite the professional standards investigation does not detract from her willingness to exercise her rights. This is the type of reprisal that the Code intends to prevent.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-19", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 19", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "43 Mr. Badour’s evidence was that he expressed concerns with documents submitted to him as a witness at the Occupational Health and Safety Tribunal. The professional standards investigation was based on his concerns. If his primary concern was with the fax, he certainly had other concerns with the other documents (see paragraph 11 of the agreed statement of facts). In his recounting of his concerns (Exhibit 9), he identified two other types of documents, those emailed or hand-delivered by the complainant to her legal counsel. The disclosure of those documents was the reason for launching the professional standards investigation. While it might not have been within his purview to order the investigation, he tried to influence it. Even without the fax, which he claimed was of primary concern, the investigation into the complainant’s release of CBSA information would still have taken place.\n\n44 Exhibits 10 and 11 show that the respondent was concerned with the perception of proceeding with the professional standards investigation on the heels of the OHST hearing. Exhibits 16 and 17 indicate the respondent’s negative impression of the complainant, her union activities and her exercise of her rights under the Code.\n\n45 The Tanguay decision outlines four general prohibitions. Subsection 133(6) of the Code puts the onus on the respondent to demonstrate that it has not violated the Code’s prohibitions. The reasons for the reverse onus are set out in Lequesne, 2004 CIRB 276, at paragraphs 73 and 77 as follows:", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-20", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 20", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "73 By placing the burden of proof on the employer, the Code creates an important exception to the general rule that the burden of proof is upon the complainant. The reverse onus is predicated on the principle that employees should be free to exercise their legitimate rights without being hampered by undue coercion by the employer.\n\n77 The Board’s determination of a complaint is a two-step process. First, the Board must determine whether the complainant acted in accordance with Part II of the Code when he exercised his refusal to work. If the Board is satisfied that the right to refuse to work was in conformity with the Code, then the second step is to consider whether the employer’s decision to discipline the complainant was motivated by considerations not related, even remotely, to the employee’s right to refuse to work… on a balance of probabilities, the discipline was administered for reasons other than the employee’s invoking his right to refuse unsafe work.\n\n46 The decision in Chaney, 2000 CIRB 47, at paragraph 28, stands for the principle that if the exercise of the employee’s rights is a proximate cause for discipline and not necessarily the whole reason for discipline, a contravention of the Act is found:\n\n28… If the exercise of rights under the Code by an employee is even only a proximate cause for discipline, then the employer should be found to have contravened the Code…\n\n47 That principle was applied by the Canada Labour Relations Board in Steve Kasper, 90 di 130, at page 6, and was adopted by the Board in Pruyn v. Canada Customs and Revenue Agency, 2002 PSSRB 17, at paragraph 55.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-21", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 21", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "48 After examining the evidence, if it is more probable than not that a reason for the discipline or threat of discipline was the exercise of an employee’s rights under the Code, it is sufficient to allow the complaint. In this case, the professional standards investigation arose out of the OHST hearing. That is enough of a proximate cause to allow the complaint.\n\n49 Assuming that the learning conversation was not disciplinary, as the respondent asserts, does not alter the fact that the professional standards investigation brought with it the threat of discipline, in itself a violation of section 147 of the Code. In Ladouceur v. Treasury Board, PSSRB File No. 160-02-43 (19920730), the complainant, a corrections officer, held a meeting with members of the bargaining unit at which he informed them that bullets were found in a cell during a prison search. The meeting resulted in a refusal to work. When the safety officer arrived, the complainant was taken aside and advised that he might be disciplined for his actions. The employer in that case argued that the complainant was not being disciplined for exercising his rights under the Code but rather for disclosing confidential matters, that is, information about the bullets. That was held to be a threat of discipline under section 147 of the Code.\n\n50 In Beaudoin v. Treasury Board, PSSRB File No. 160-02-19 to 23 (19871116), a violation of the Code was found on the basis of a threat of discipline for insubordination that was clearly linked to the employer’s attempt to have employees resume work after they exercised their right to refuse to under Part II of the Code.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-22", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 22", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "51 The threat of discipline need not be overt; it may be covert (see Antonia Di Palma, 100 di 89) or even a perception, as was the case in Gaskin. In such cases, the onus is on the employer to prove on the balance of probabilities that it never intended to threaten the complainant.\n\n52 In summary, the complainant was subjected to a professional standards investigation into her use of protected CBSA information, which carried with it the threat of discipline. The investigation was launched as a result of an appeal to the OHST, which was based on the complainant’s sincere belief that unsafe working conditions existed in her workplace. She disclosed information, which was protected by solicitor-client privilege, for use in a closed hearing into the legitimacy of her concerns. Any concern about the security of the lookouts in question was protected by the process itself.\n\n53 The only conclusion one can reach is that the reason for the professional standards investigation was the complainant’s use of lookouts to support her refusal to work under Part II of the Code.\n\n54 The complainant seeks a declaration that the respondent violated section 147 of the Code and an order directing it to cease and desist in such activities. She also seeks an order directing the respondent to post this decision on bulletin boards in each of its workplaces for six months.\n\n55 The relevant sections of the Code are sections 133 and 147. Section 133 provides as follows:\n\n133. (1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.\n\n56 Section 147 of the Code states as follows:", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-23", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 23", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee\n\n(a) has testified or is about to testify in a proceeding taken or an inquiry held under this Part;\n\n(b) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or\n\n(c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.\n\n[Emphasis added]\n\n57 The complainant’s allegation is that she was threatened with discipline as a result of the exercise of her right to refuse to perform what in her opinion amounted to unsafe work pursuant to section 128 of the Code.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-24", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 24", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "58 The respondent had to demonstrate that the complainant was not disciplined for legitimately exercising her right to refuse to work. The parties agreed that the complainant exercised her rights under section 128 of the Code in November 2005. Subsequent to her refusal to work, she appealed the Occupational Health and Safety Officer’s decision to the OHST. To support her application, she provided her legal counsel with certain protected CBSA documents, via email and via hand-delivered hard copies. They were used at the OHST hearing and were put to Mr. Badour, the respondent’s security expert. His discomfort with the use of the documents was raised with legal counsel and the respondent’s human resources representative present at the hearing. Based on his concerns, a professional standards investigation was launched.\n\n59 If the story ended there, I would have no qualms finding in favour of the respondent. Instituting an investigation to look into a possible breach of an employer policy is not, in and of itself, in my opinion a threat of discipline. An employer has every right to discipline an employee for a breach of its policies. The complainant cannot hide behind the exercise of her rights under the Code to avoid disciplinary action which may result from actions which are a violation of the employer’s code of conduct.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-25", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 25", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "60 Mr. Badour’s sights were clearly set on a security violation, which is a breach one of the respondent’s policies. He had no opinion one way or the other about the forum in which the alleged security violation occurred. However, he merely expressed his concerns. He had no managerial or supervisory responsibility for the complainant. Based on that expression, an occurrence notification (Exhibit 14) was issued by the Professional Standards Investigations, Personnel Security and Professional Standards Division, at the CBSA, indicating that he reported that the infraction related to the release of protected information by “numerous employees.”\n\n61 Mr. Badour’s involvement as a catalyst for the professional standards investigation ended there. Mr. Hewson, through Yvonne Bremault, Acting Regional Director General, Prairie Region, contacted Roger Lavergne, on December 16, 2010, seeking Personnel Security and Professional Standards Division assistance in investigating a breach related to the release of documents and the tone of the investigation changed as is evidenced by exhibits 16 and 17. The OHST hearing was held on November 26, 2010, three weeks before the request to proceed with the professional standards investigation was made by Prairie Region management.\n\n62 Exhibit 16 reflects communications between Mr. Hewson and the professional standards investigator Particularly disturbing is an email from him dated February 21, 2011, which reads as follows:\n\nFrom: Hewson, Kevin\n\nSent: February 21, 2011 1:57 PM\n\nTo: Passannante, Franca\n\nSubject: Fw: Lookout info …\n\nHi Franca,\n\nGina pulled a work refusal under CLC part II on tuesday Feb. 15, 2011 based on this lookout not being an armed and dangerous lookout.\n\nSee next email.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-26", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 26", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Gina did fax some into to a 613 area code, but it doesn’t appear to be the PSAC law firm.\n\nI would recommend that her email account be re-audited to ensure she has not sent protected information without authorization.\n\nKevin\n\n_________________________\n\nSent from my Blackberry handheld.\n\n[Sic throughout]\n\n63 Equally disturbing is another email Mr. Hewson sent to Ms. Passannante on March 2, 2011 (Exhibit 17), which reads as follows:\n\nFrom: Hewson, Kevin\n\nSent: March 1, 2011 11:30 PM\n\nTo: Miller, Gary; Passannante, Franca\n\nCc: Badour, Dan; Bremault, Yvonne\n\nSubject: Mail box review PS 10-290\n\nHi Franca,\n\nIn a discussion with two of my superintendents yesterday, it has become apparent to me that respondent looks at every single lookout, watch-for or BOLO and reviews them to see if they should be changed to Armed and Dangerous status. This appears to be her cause as a CIU representative in the workplace and is further evidenced in her OSH appeal and the recent work refusal under CLC part 2 on Feb. 12, 2011.\n\nI am sure if you reviewed ICES, her H drive and email you would find further evidence to this.\n\nIf you have any questions, please feel free to contact me.\n\nKevin\n\n[Sic throughout]\n\n[Emphasis added]\n\n64 It is worthy of note that “PS 10-290” refers to the professional standards investigation into four people involved, directly or indirectly, in the complainant’s appeal before the OHST, including the complainant.\n\n65 In response to Mr. Hewson’s email, Ms. Passannante wrote as follows:\n\nFrom: Passannante, Franca\n\nSent: March 2, 2011 9:50 AM\n\nTo: Hewson, Kevin; Miller, Gary\n\nCc: Bremault, Yvonne\n\nSubject: RE: Mail box review PS 10-290\n\nHi Kevin,\n\nThanks for the info. I did request a second email review following our last conversation. Our analyst has been through it and I am waiting for the return on what he found.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-27", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 27", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "She should not be going through every lookout in order to identify those that she deems may have health and safety issues. Lookouts are not issues for this purpose …. need to know only for work related purposes. She will argue that it is work related but lookouts are issued so that frontline inspectors can identify and intercept persons of risk and interest and not for any other purpose.\n\nWhat I will do is request and ICES audit which will tell me exactly what she has looked at and when.\n\nI am going through the court transcripts this week and trying to make sense of everything.\n\nThanks!\n\nFranca\n\n[Sic throughout]\n\n66 Mr. Hewson did not testify on behalf of the respondent, so his emails must speak for themselves. It is clear to me from their tone and content, that he was frustrated by the complainant’s exercise of her rights under section 128 of the Code and that he wanted her to stop pursuing her lookout issues. I find that in so doing, he hoped that, if the results of Ms. Passannante’s investigation indicated a violation of the CBSA “Code of Conduct” by the complainant, discipline would cause her to curb her health and safety pursuits. Hewson clearly links the professional standards investigation with the complainant’s exercise of her right to refuse under the Code and demonstrates an anti-union animus when he describes the complainant’s ongoing review of lookouts in his email exchange with Passannante.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-28", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 28", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "67 The respondent chose not to call Hewson to address the content of his emails which were entered into evidence. I am therefore left to evaluate his actions through his email communications. Consequently, I have concluded that Hewson’s activities in attempting to influence the direction of the professional standards investigation were directly related to an attempt to stop the complainant from exercising her right to refuse unsafe work under the Code.\n\n68 Ms. Passannante denied conversing with or taking instructions from anyone other than her manager with respect to the investigation, and yet, the emails indicate otherwise. In them, she links the investigation with the complainant’s exercise of her rights under section 128 of the Code by reviewing the transcripts of the OHST hearing and by advising Mr. Hewson that the complainant was engaged in unauthorized access to and use of CBSA documents, another allegation that, if proven, could have brought disciplinary action. Passannate’s mandate was limited to the allegations of improper disclosure of protected information and her comments should have been limited to this, and should not have extended to making comments on the complainant’s ongoing review of lookouts to determine if they were appropriately classified. Her comment links her investigation to the complainant’s exercise of her rights and is unrelated to her mandate.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-29", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 29", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "69 Therefore, based on the exhibits and the lack of testimony by Hewson, I conclude that, on the balance of probabilities, the professional standards investigation was inextricably linked to the complainant’s exercise of her rights under Part II of the Code. It is clear to me from Mr. Hewson’s emails, that he wanted the complainant to stop claiming that her duties as a BSO at the Port of Coutts were rendered unsafe by the misclassification of lookouts and tried his best to influence the investigation by communicating his opinions concerning the complainant’s union activities to Passannante. The professional standards investigation provided a vehicle by which he hoped that message would be conveyed.\n\n70 While the initial complaint filed by Mr. Badour concerning the release of protected information was from his perspective a pure security issue, the investigation was not. Its nature was changed, or at least influenced by Mr. Hewson’s involvement, as evidenced by his emails.\n\n71 Having concluded that the professional standards investigation was conducted at least in part for reasons directly related the complainant’s exercise of her rights under section 128 of the Code, I must now decide whether it was disciplinary in nature or was a threat of disciplinary action, either of which would be a violation of section 147. I find that there is more than a proximal link as described in Chaney between the exercise of the complainant’s section 128 rights and the nature of or the manner in which the professional standards investigation was carried out.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-30", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 30", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "72 The complainant’s evidence was that she was not disciplined, at least not in the traditional sense. She was found culpable of releasing protected CBSA information without proper authorization and in an unsecure fashion. For this she was subjected to a learning conversation, in which the policies related to the release of information were reviewed. Both the complainant and Mr. McMichael testified that, in their roles as union representatives, they had never before heard of a learning conversation, let alone once a person has been found to have violated the CBSA “Code of Conduct” or some other policy. Mr. McMichael testified that, in his 13 years with the CBSA, he has been involved in more than 20 professional standards investigations assisting union members. In all but this case, a finding that the employee violated the “Code of Conduct” or some other policy resulted in disciplinary action. Before this case, he had never heard of a learning conversation in this or in any other context.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-31", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 31", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "73 In my opinion, use of the learning conversation was a carefully chosen ruse intended to skirt the connection of disciplinary action as a result of the conclusions of the professional standards investigation and the complainant’s exercise of her rights under section 128 of the Code. I liken it to a verbal reprimand that is intended to correct an employee’s behaviour without imposing more severe disciplinary action, which would be subject to the grievance process. Furthermore, Exhibit 18 makes it perfectly clear that disciplinary action was contemplated throughout the professional standards investigation, although ultimately it was not recommended by CBSA Human Resources because of the respondent’s own failure to enforce the rules concerning the release of protected CBSA information at the Port of Coutts up to the point of the OHST hearing.\n\n74 If it was management’s intention, following the investigation, simply to address the situation at the Port of Coutts regarding the practice of not encrypting sensitive data, it could easily have done so without violating the Code. A memorandum to all employees at the Port, reminding them of their obligations to encrypt protected information, would have addressed the situation in a manner that satisfied management interests but did not discipline or threaten discipline upon the complainant. In singling out the complainant from all other employees at the Port and in calling her to a meeting accompanied by her union representative, and having her participate in a thinly-veiled “learning conversation”, I find that management acted improperly.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-32", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 32", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "75 Having found that discipline was imposed as a result of the complainant’s pursuit of her rights under section 128 of the Code, I find that she has successfully proven all elements of the test identified in the Vallée decision. Had I not concluded that the learning conversation was disciplinary in nature; my decision would have been the same. At the very least, the learning conversation was a threat of future disciplinary action intended to alter the complainant’s behaviour. The conversation in which Gary Selk, Chief of Operations, Southern Alberta District, CBSA, and Mr. Hewson reminded the complainant, in the presence of her union representative, brought with it, if not actual discipline, then the perceived threat of disciplinary action. If it was purely a counselling situation, why did a union representative attend? The right to be accompanied by a union representative is included in the collective agreement applicable to BSOs under the discipline section.\n\n76 Mr. Hewson hoped that the professional standards investigation would put an end to the complainant’s review of lookouts to determine if their subjects should have been identified as armed and dangerous. As I have indicated, had the investigation focused on Mr. Badour’s security concerns and not ventured into the area identified in the email exchanges between Mr. Hewson and Ms. Passannante, my conclusion would have been different, as the motive for the investigation would have been different. The required nexus would have been missing. As it turns out, the focus was directed at the complainant’s ongoing health and safety concerns with the respondent’s lookouts, that she “pulled another work refusal” and her use of lookouts to support her claims that the work was unsafe. Consequently, the nexus exists.", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-359065-33", - "doc_type": "caselaw", - "act_code": "2013 PSLRB 40", - "act_short": "Martin-Ivie", - "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", - "section": "", - "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", - "marginal_note": "excerpt 33", - "heading": "Occupational health and safety; the arming and safety of CBSA border officers", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "77 Ultimately, the professional standards investigation was successful in persuading the complainant to rethink the exercise of her section 128 of the Code rights in the future. While she might have been subjected only to a learning conversation as a result of the professional standards investigation’s findings, she assumed throughout the process that she would be disciplined. Living through the investigation with the perceived threat of discipline hanging over her and in fear of its impact on her employment future was a sufficient deterrent that she would now think twice before exercising her rights under the Code, which is exactly what section 147 is intended to prevent.\n\n78 Consequently, I declare that the respondent violated section 147 of Part II of the Code by disciplining or threatening to discipline the complainant for exercising her rights under section 128 of the Code.\n\n79 The complainant’s request that I order this decision posted in all the respondent’s workplaces for six months is denied. This is a public document available to everyone with an interest. It is not necessary to post a copy of it in the workplace.\n\n80 For all of the above reasons, the Board makes the following order:\n\n81 The complaint is upheld.\n\n82 Exhibit 3 will be sealed.\n\nApril 12, 2013.\n\nMargaret T.A. Shannon, a panel of the Public Service Labour Relations Board", - "current_to": "2013-04-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" - }, - { - "id": "fpslreb-358886-1", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 1", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Balkar Singh Basra (“the grievor”) was suspended indefinitely without pay from his position as a correctional officer (classified CX-01) at Matsqui Institution following the receipt of a letter dated March 24, 2006 (“the privacy coordinator’s letter”, Exhibit E-7) from a privacy coordinator and Crown counsel (“the privacy coordinator”) alleging that a sexual assault occurred. In Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70 (“the original decision”), I found that the decision to suspend the grievor indefinitely without pay pending an investigation became a disciplinary action because of the lengthy failure of the Correctional Service of Canada (CSC) to adequately conduct an investigation. I ordered: [140] The grievance is upheld. Mr. Basra is ordered reinstated to his position as a CX-01 effective May 3, 2006, with back pay, full benefits and with interest. I reserve jurisdiction over the implementation of this decision for a period of 90 days.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-2", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 2", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The deputy head of the Correctional Service of Canada (“the deputy head”) sought judicial review of the original decision. The Federal Court allowed the judicial review application in Canada (Attorney General) v. Basra, 2008 FC 606. The grievor appealed that decision. In Basra v. Canada (Attorney General), 2010 FCA 24, the Federal Court of Appeal found that the following findings at paragraphs 120 and 129 of the original decision were in error: [120] While the rules of evidence are relaxed in an adjudication hearing under the Act, in my view it would be an adjudicative error to use hearsay evidence to prove a fundamental material fact… The weight that can be attached to hearsay evidence for establishing material disputed facts is minimal, and I place no weight on the hearsay evidence for establishing facts. [129] … There is no evidence that Mr. Basra deceived the police in their investigation.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-3", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 2", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "There is no duty on him to “take responsibility,” if in fact he is innocent of the offence, and he is presumed innocent until proven guilty… The Federal Court of Appeal was of the view that I had incorrectly decided to not consider the privacy coordinator’s letter (Exhibit E-7) “… simply because it was hearsay.” The Federal Court of Appeal remitted the matter to me for a new determination, with the following directions: [31] The appeal will therefore be dismissed but the order of the Federal Court Judge will be varied so as to provide that the matter be remitted to the original adjudicator, or another adjudicator if he is unavailable to act, so that it may be decided again in conformity with these reasons, based on the existing record or such other evidence as the adjudicator may decide to allow… The Federal Court of Appeal described the adjudicative task as follows: [29] As a result, the adjudicator’s first task upon rehearing the matter is to determine if the employer has proven that there has been a breach of the Code of Discipline or Standards of Professional Conduct. If the employer satisfies that burden, the next question is whether the discipline measure imposed was excessive. If not, the measure stands. If the adjudicator finds that the measure is excessive, then the adjudicator must address the question of the appropriate measure. These are discrete questions, each of which merits careful consideration…", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-4", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 3", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On April 12, 2010, I proposed to the parties to base the new determination directed by the Federal Court of Appeal on written submissions. On April 26, 2010, the parties provided their views. The grievor agreed with the proposed approach. The deputy head requested a full oral rehearing on the merits of the grievance. On my directions, the Registry of the Public Service Labour Relations Board (“the Registry”) issued a letter on May 13, 2010, scheduling the matter for written submissions. On May 17, 2010, the deputy head wrote to the Registry, indicating that proceeding by way of written submissions on the existing record would be a denial of procedural fairness, and it requested a case management conference. The deputy head wished to present further evidence and referred me to Cie minière Québec Cartier v. Quebec (Grievances arbitrator), [1995] 2 S.C.R. 1095 (“Québec Cartier”).", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-5", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 4", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "After convening a case management conference on June 29, 2010, and after hearing submissions from the deputy head and the grievor, I denied the deputy head’s request to present post-hearing evidence and I directed that the matter proceed by way of written submissions. I issued reasons for decision following the prehearing hearing conference in Basra v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 131, and stated the following at paragraph 11: [11] The purpose of this new determination is to correct errors that the Federal Court and the Federal Court of Appeal found in the decision-making process that led to 2007 PSLRB 70. Both courts found that the hearsay evidence (in 2007 PSLRB 70, at paragraphs 120 and 129) was treated in error. The Federal Court of Appeal also found that the wrong test was applied in the original decision and that the case should not have been decided in accordance with the Larson factors (Larson v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 9) but rather in accordance with the usual approach to disciplinary grievances, as set out in Wm. Scott & Co Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1977] 1 C.L.R.B.R. 1. Bearing in mind the purpose of this new determination, in my view there is an evidentiary foundation from the original hearing in this case to which I can apply the factors in Wm. Scott & Co Ltd. referred to in the Federal Court [sic] Appeal decision, with the assistance of submissions from the parties. Those factors are:", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-6", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 5–7", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I note that, despite my ruling denying its request to present post-hearing evidence, the deputy head continues in its written submissions to refer to facts that arose from a hearing in a criminal case after I issued the original decision on this grievance. I do not have a certificate of conviction; nor do I have the reasons given in the criminal case. That evidence is not admissible before me under the analysis set out in Québec Cartier. The evidence in the case before me is set out in paragraphs 4 to 86 of the original decision. I note that the grievance before me is solely about the grievor’s indefinite disciplinary suspension without pay and that the record is based on the evidence adduced at the hearing held in this matter from October 25 to 27, 2007 (“the original hearing”) and reported in the original decision, together with the further written submissions of the parties. The deputy head’s counsel advised me that the CSC has terminated the grievor and that a grievance has been filed against that termination. I was not appointed to hear and decide that grievance. My jurisdiction relates solely to the grievance that the grievor filed after the CSC suspended him indefinitely without pay on learning that he was charged with a criminal offence.\n\nIt is essential that I set out some facts established at the original hearing and reported in the original decision.\n\nThe grievor has been employed at Matsqui Institution since he became an indeterminate employee on August 24, 1999. Matsqui Institution is a medium-security penitentiary for male inmates in the CSC Pacific Region.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-7", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 8", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At the original hearing, the deputy head called as its only witness Glen Brown, Warden of Matsqui Institution. Mr. Brown received the privacy coordinator’s letter (Exhibit E-7). It related some circumstances and enclosed a copy of information sworn on March 17, 2006, alleging that the grievor sexually assaulted a female complainant on September 10, 2004, in Surrey, British Columbia, contrary to section 271 of the Criminal Code, R.S.C., 1985, c. C-46. The privacy coordinator’s letter (Exhibit E-7) contained the following synopsis of the allegations: According to the Police report, Mr. Basra first had contact with the complainant through a chat line. They eventually met for an evening of drinking and clubbing. On the second meeting the couple were at Mr. Basra’s house having a few drinks before going out for dinner. After a few sips of the third drink which Mr. Basra made for her, the complainant began to fade, feeling unfocused and hazy. She awoke the next morning naked on Mr. Basra’s bed. She was unable to remember most of the previous evening after the point of sipping the third drink. Reportedly, Mr. Basra gave the complainant a false name; however, the police were able to locate him from the complainant’s cell phone records. When questioned by the police, Mr. Basra denied having had sex with the complaint [sic] or even knowing her and refused to give a DNA sample. A DNA warrant was obtained and Mr. Basra’s DNA was found to match an exhibit taken from the complainant. A warrant has been issued for Mr. Basra’s arrest. You may wish to contact the Surrey Provincial Court Registry … if further information is required concerning details as to the progress of this case.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-8", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 8–9", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "This information is provided to you pursuant to our policy; you may wish to share this information with Mr. Basra, to allow him to respond in the appropriate forum.\n\nThe charge was for off-duty criminal conduct that allegedly occurred 18 months before the information was sworn. The complainant is not an employee at Matsqui Institution. There is no indication that the grievor has been involved in any problem within or outside the workplace since the alleged criminal conduct took place. The privacy coordinator’s letter (Exhibit E-7) is the only written documentation that the CSC obtained during its investigation. The CSC did not obtain any information about the terms of the grievor’s form of release or about any conditions of his judicial interim release.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-9", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 10", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Brown was away from Matsqui Institution when the privacy coordinator’s letter (Exhibit E-7) arrived. Randie Scott, Acting Warden, received it. At a meeting on April 3, 2006, Mr. Scott suspended the grievor indefinitely without pay by letter dated that day (“the suspension letter”, Exhibit E-6). It is important to consider the text of the suspension letter (Exhibit E-6), as it makes it clear as follows that the CSC was convening a disciplinary investigation and that the grievor would be contacted by the investigating manager in due course: This is to advise that you are hereby suspended indefinitely without pay effective immediately, pending the completion of a disciplinary investigation, which has been convened to establish the facts surrounding your involvement in the allegation that you have contravened the Correctional Service of Canada’s Standard of Professional Conduct. Information received from the Crown Counsel, Ministry of Attorney General this date advises you have been charged with sexual assault under Section 271 of the Criminal Code of Canada. During this period of suspension you are not to enter CSC premises without the permission of the Warden or his representative. You will be contacted by the investigating manager in due course.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-10", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 11–13", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In an April 3, 2006 email (Exhibit G-3) to Donna Mynott, a human resources officer at Matsqui Institution, Mr. Scott explained that he went over the gist of the suspension letter (Exhibit E-6) with the grievor at the meeting of that day. During the meeting, the grievor volunteered that the matter related to an allegation from 2004, that he had fully cooperated in the original matter, that he had not heard anything for the last year-and-a-half and that he thought that the matter was over. Mr. Scott advised him that a formal investigation into his actions would be launched. Mr. Scott advised the grievor to call him if he had any questions.\n\nOn April 24, 2006, Mr. Scott directed Jason Strijack, Acting Associate Unit Director, PI/RTC, and Jim Farrell, Security Investigative Officer, Mountain Institution, to commence a disciplinary investigation into the grievor’s involvement in the following two allegations (Exhibit E-8): 1. That on March 17, 2006 Mr. Basra was charged with sexual assault under Section 271 of the Criminal Code. The sexual assault is alleged to have occurred on or about September 10, 2004 at or near Surrey, British Columbia. 2. That Mr. Basra failed to advise his supervisor, before resuming his or her duties, of being charged with a criminal offence.\n\nA report of the investigation was due by May 31, 2006. By the time of the original hearing, neither investigator had yet prepared a written report in connection with the disciplinary investigation. Mr. Brown was absent from Matsqui Institution when the order was given to start the disciplinary investigation.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-11", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 14–15", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor was notified by letter dated April 24, 2006 (Exhibit E-9) of the appointment of the investigators and the allegations to be investigated under the “Code of Professional Conduct”. The grievor was notified of the names of the investigators but was not provided with their contact information. The letter also stated that he would be contacted in due course to arrange an interview. He was also advised of his right to bring a representative to the interview.\n\nNeither Mr. Strijack nor Mr. Farrell interviewed the grievor about the allegations, sent a letter to him requesting his presence for an interview or notified him of a date for an interview. The best that can be said of the investigation was that Mr. Strijack and Mr. Farrell attended at the courthouse in Surrey from time to time to monitor the criminal proceedings against the grievor and that they made phone calls to the Royal Canadian Mounted Police.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-12", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 16", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At paragraphs 111 to 115 of the original decision, I found as follows: [111] I am not satisfied that the respondent has shown under the third [deputy head’s duty to investigate the criminal charge to the best of its abilities, in a genuine attempt to assess the risk of continued employment] and fifth [deputy head’s continuing duty to objectively consider the possibility of reinstatement, within a reasonable period following the suspension, in light of new facts or circumstances] Larson criteria that the CSC has done its best to ascertain the facts in order to make a risk assessment concerning Mr. Basra. While Mr. Scott appointed investigators in a timely way, I am concerned that the investigation did not yield sufficiently reliable information to make a risk assessment decision. The problem seems to be with the quality of the investigation undertaken by the CSC. It seems that in terms of investigating the disciplinary matter, the investigators did little more than attend court, request information from the RCMP, which never was received, and possibly ask Mr. Clements at court to tell Mr. Basra that the investigators wished to speak to him. I use the word “possibly” since the investigators were not called to give evidence as to what they did or did not do. [112] I am concerned that the investigators made no attempt to directly contact Mr. Basra to obtain his side of the story. I am not prepared to speculate as to what he may or may not have said had the CSC attempted to contact him. I put no weight on Exhibit E-14, which contains speculation by Ms. Mynott in an email to Ms. Chima that: Sometimes in case [sic] such as these lawyers advise their clients not to discussing [sic] disciplinary investigations until the court case has been completed.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-13", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 16–17", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "[113] The investigators had the power to set a meeting with Mr. Basra, advise him of the time and place of the meeting and notify him that he could bring a bargaining agent representative with him. This was never done, and no explanation was given as to why. The investigators were never called as witnesses to explain what they did. I draw an adverse inference against the respondent for failing to call the investigators to explain their investigation. [114] Mr. Basra did provide some information to Mr. Scott at the meeting where Mr. Basra was suspended. Mr. Basra also had Mr. Clements provide information as to when he became aware of the charge. Mr. Scott also informed Mr. Basra, both orally and in writing, that an investigation had commenced and that the investigators would talk to him. It appears that the investigators did not bother to contact Mr. Basra directly. They have not even reported on their findings. [115] This is not a case where Mr. Basra instructed the CSC not to deal with him directly but to deal with his lawyer. In my view, in the absence of this instruction, there is no duty on the CSC to deal only with the employee’s lawyer.\n\nIn essence, in the original decision, I found that the decision to suspend the grievor indefinitely without pay became disciplinary as of May 3, 2006 because, 30 days after it began, the CSC still had not attempted to obtain information from the grievor about the facts alleged in the privacy coordinator’s letter (Exhibit E-7) and that the sole basis for the indefinite suspension without pay was that letter.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-14", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 18", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The discipline at issue was an interim disciplinary measure, imposed pending the outcome of a disciplinary investigation. The deputy head submits that the privacy coordinator’s letter (Exhibit E-7) provided a sufficient basis for the interim indefinite disciplinary suspension without pay. The deputy head points out that elements of that letter are uncontradicted and do not appear controversial, relying on statements to that effect from the Federal Court of Appeal at paragraph 21 of 2010 FCA 24, as follows:", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-15", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 21", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "… The issue is whether it is reliable. In this respect, we note that there are elements of information contained in the letter from Crown counsel’s office which are not contradicted and do not appear to be controversial… 19 The deputy head wrote that the privacy coordinator’s letter (Exhibit E-7) establishes the following: 20 The deputy head submits that it has proven that the Code of Discipline in the Correctional Service of Canada (“the Code of Discipline”) and the Standards of Professional Conduct in the Correctional Service of Canada (“the Standards of Professional Conduct”) were breached. The deputy head states that it has the right to have CSC employees’ conduct assessed against those standards whether or not the conduct occurred off-duty: see Tobin v. Canada (Attorney General), 2009 FCA 254, at para 47. The deputy head submits that, in the context of a sexual assault investigation, the grievor lied to the police about his name, about knowing the victim and about not having sex with her. Those facts, together with the DNA sample, constitute sufficient information. It is not a mere allegation. On a simple balance of probabilities standard (as detailed in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)), it is clear that the grievor had sex with the victim, lied to the police about it and was charged with sexual assault. His conduct violated the Standards of Professional Conduct and the Code of Discipline. The deputy head submits that, although employers do not usually impose an interim disciplinary suspension without pay, one is warranted if police charge an employee with a criminal offence: see McManus v. Treasury Board (Revenue Canada, Customs and Excise), PSSRB File Nos. 166-02-8048 and 8078 (19800310), at pages 21-22.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-16", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 21–22", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "21 The deputy head argues as follows: … The facts of this case reveal a far more serious situation for the employer. This is an employee charged with a violent sexual assault who when first questioned by the police lied about his name, lied about knowing the victim and lied about not having had sex with the victim. This raises the seriousness far beyond what was required in the McManus decision.\n\nThe deputy head submits that the discipline imposed was not excessive, was reasonable given the evidence and should not be tinkered with by an adjudicator: see Wilson v. Treasury Board (Solicitor General Canada – Correctional Service), PSSRB File No. 166-02-25841 (19950301). The deputy head submitted as follows that the only evidence available to the CSC was provided by the police: … As in all cases of sexual assault there may be competing versions of events and in some case [sic], such as this one, DNA evidence. The important point is that none of this is available to the employer. Police agencies are not going to compromise their investigations or expose victims to internal disciplinary investigations during the course of their own investigations. As a result, the employer did the only thing it could do in the circumstances, wait for the resolution of the criminal matter and monitor court proceedings.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-17", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 23", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The deputy head also stated as follows: … it remains the position of the employer that it is a denial of procedural fairness not to allow the employer to rely on the grievor’s criminal convictions to “shed light” on the disciplinary suspension at issue. It is important to point out that the employer did not make a strategic decision not to rely on this information when the case was first presented. The convictions post-date the original hearing. The employer did not have the option of relying on convictions that did not exist at the time. As noted by the Supreme Court of Canada in Toronto (City) a criminal conviction is conclusive and the issues cannot be re-litigated at adjudication. The Supreme Court was also clear that post discharge evidence is relevant: “… if it helps shed light on the reasonableness and appropriateness of the dismissal under review at the time it was implemented.” Subsequent to the suspension (and subsequent to the original hearing on this matter) the grievor was convicted of a violent sexual assault contrary to Section 271 of the Criminal Code, R.S.C. 1985, c. C-46: R v. Basra (2008), 78 W.C.B. (2d) 194, decision released July 11, 2008. On November 7, 2008, the appellant was sentenced to two years less one day and was placed on probation for a period of three years following his release, with a number of statutory conditions: R. v. Basra 2008 BCSC 1526. It is respectfully submitted that this evidence is relevant and should be considered in the disposition of the suspension grievance as this evidence “sheds light” on the decision at the time it was made.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-18", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 23–26", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Furthermore, the fact that the grievor was convicted of violent sexual assault is dispositive of the matters at issue in this adjudication, i.e., clearly this behaviour warrants discipline and the disciplinary suspension imposed is justified on the facts of the case. [Sic throughout] [Footnotes omitted]\n\nThe grievor did not contradict the facts. The adjudicator may accept less-than-satisfactory evidence given that the grievor could have testified and shed light on the matter: see Brown and Beatty, Canadian Labour Arbitration, Fourth Edition, at para 3:5120; and Ayangma v. Treasury Board of Canada (Department of Health), 2006 PSLRB 64, at para 62. An adverse inference should be drawn against the grievor.\n\nThe grievor argued that the Federal Court of Appeal held that I had correctly considered the CSC’s intent when I determined that the CSC’s indefinite suspension of him, without pay, became disciplinary as of May 3, 2006. The Federal Court of Appeal upheld that the grievor had been subject to a disciplinary suspension.\n\nThe grievor argued that the Federal Court of Appeal stated that I was not bound to accept the hearsay evidence contained in the privacy coordinator’s letter (Exhibit E-7) relied upon by the deputy head. It was admissible, but it was for me to determine the weight to attach to it.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-19", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 27", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor argued that, when it reheard the matter, the Federal Court of Appeal noted that the deputy head “… bears the onus of proving the underlying facts which are invoked to justify the imposition of discipline … [t]his applies to both the facts justifying the imposition of the discipline as well as the appropriateness of the discipline.” As the deputy head did not satisfy the onus to justify the discipline or its appropriateness, it was not necessary for the grievor to give evidence: see Labatt Alberta Brewery v. Local 250 Brewery Workers, [2004] A.G.A.A. No. 63 (QL), at paras 63-64. In 2010 PSLRB 131, I issued directions for the hearing of this matter and held at paragraph 10 that “… the purpose of this new determination, ordered by the Federal Court of Appeal, is not to allow the deputy head to start again without considering that a hearing has already been held…”", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-20", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 28–29", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor argues that, by continuing to refer to his subsequent criminal conviction and his discharge, the deputy head is relying on evidence that is not part of the record and that it has deliberately flouted the directions for the hearing. Alternatively, the grievor argues that “… an arbitrator ‘is required to determine whether or not the Company had just and sufficient cause for dismissing the employee as at the time when the employee was actually dismissed’ or disciplined…” To allow the deputy head to rely on subsequent-event evidence “… would be to accept that the result of a grievance concerning the dismissal of an employee could vary depending on when it is filed and the time lag between the initial filing and the final hearing by the arbitrator.” The grievor argues that the deputy head should not be allowed to take advantage of the delays arising from its own actions. A subsequent conviction does not shed any light on the appropriateness or justification for the indefinite disciplinary suspension without pay. The suspension must be assessed based on the circumstances known when it was imposed, which was April 2006: see Ayangma, and Legault v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 82, at para 315.\n\nThe grievor’s termination because of his criminal conviction is the subject of a separate grievance, and I have no jurisdiction over that grievance: see Ayangma,at para 82. The grievor submits that my role is limited to reviewing the evidence on the record about the indefinite disciplinary suspension grievance.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-21", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 30–31", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor stated that the deputy head’s repeated claim that the grievor gave a false name to the police is contradicted by the contents of the privacy coordinator’s letter (Exhibit E-7) and that I rejected that claim. The grievor argues that I found at paragraphs 49 and 51 of the original decision that the grievor did not give a false name to the police.\n\nThe grievor states that, even though the privacy coordinator’s letter (Exhibit E-7) is admissible, it should be given no weight, as it contains double and triple hearsay on the main points that the deputy head relied on. The privacy coordinator’s letter (Exhibit E-7) indicates as follows: “Reportedly, Mr. Basra gave the complainant a false name …”", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-22", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 32", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor notes that the deputy head relies on comments in the Federal Court of Appeal decision that the facts set out in the privacy coordinator’s letter (Exhibit E-7) were uncontested. The grievor states as follows: … All the Federal Court of Appeal said was that there are “elements of information” in the letter from Crown Counsel that are not contradicted and “do not appear controversial” (at paragraph 21). Such a general statement cannot be translated into the proposition that all of the facts set forth in the letter from Crown Counsel were not contested or must be accepted as true. The problem facing the employer is that the letter from Crown Counsel does not constitute clear, cogent or convincing evidence that would establish that the grievor lied to the police about his name, lied to the police about knowing the victim and lied to the police about not having had sex with her. The evidence shows that the grievor did not lie to the police about his name at all. Furthermore, the employer has failed to prove, on a balance of probabilities, through clear, cogent and convincing evidence, that the grievor lied to the police about knowing the victim and about not having had sex with her.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-23", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 33–34", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor further notes as follows: I pause to note that the employer has clearly abandoned the primary justification for the lengthy suspension without pay that it relied upon at the original hearing, namely the allegation that the grievor failed to advise his supervisor of being charged with a criminal offence (2007 PSLRB 70, at paragraph 16). As you stated in the original decision, “the respondent has no case against Mr. Basra on the point of whether he went to work without informing the CSC of the charge. The evidence establishes that the CSC learned of the charge before Mr. Basra did” (at paragraph 109).\n\nThe grievor submits that the evidence must be sufficiently clear, convincing and cogent: see F.H. v. McDougall, 2008 SCC 53, at para 46. He submits that the grievance should be upheld with the same remedy that was originally determined, namely, that he be reinstated to his CX-01 position effective May 3, 2006, with back pay, full benefits and interest, until the date of his termination.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-24", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 35", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Contrary to what the deputy head argued, the grievor submits that an adverse inference should not be drawn from his failure to testify at the original hearing. The onus is on the deputy head to prove the facts justifying the discipline and its appropriateness. I am required to make findings based on the evidence. The deputy head failed to satisfy the onus, and a failure to testify cannot fill a gap in the case of the party bearing the burden of proof: see Labatt Alberta Brewery and Burns Meats, a division of Burns Foods (1985) Ltd. v. United Food and Commercial Workers Union, Local 832 (1993), 38 L.A.C. (4th) 172 (“Burns Meats”), at 183-184. The deputy head bears the onus, and the failure of the grievor to testify cannot be “… a basis for raising the ‘blameworthiness’ or ‘seriousness’ of the conduct beyond what the objective evidence discloses …”: see Burns Meats, at page 184.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-25", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 36", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor submits in the alternative that, if he breached the Code of Discipline or the Standards of Professional Conduct, then the indefinite disciplinary suspension without pay was excessive. Such a drastic action can be justified only if he were unable to continue in his job. I dealt with that issue at paragraphs 37 and 128 to 130 of the original decision. The grievor wrote the following: … As noted in [the original] decision, the grievor was not detained in custody after the charges were laid against him, he worked for an 18 month period after the alleged sexual assault and before the charge was laid with an unblemished work record, he did not have unrestricted access to confidential information, he was not a liaison officer with the RCMP, he did not have unsupervised access with visitors, and many of the posts he worked at involved little inmate interaction (at paragraphs 128 – 129). There were at least 3 positions available in which the grievor could have been posted with no contact with visitors, female staff or inmates (at paragraph 130). There was no evidence on the record that would suggest that female correctional officers would be unwilling to work with the grievor or feel that their safety would be jeopardized. In fact, one female co-worker, Ms. Enns, testified that she would not have any concerns working with the grievor (at paragraph 130).", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-26", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 37–38", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In this case, the grievor was suspended indefinitely without pay on April 3, 2006, pending the completion of a disciplinary report, which had not been provided as of the dates of the original hearing, October 25 to 27, 2006. I drew an adverse inference from the deputy head’s failure to call the investigators to testify about their investigation or to explain the delay. Mitigating factors are present, including the failure to complete an investigation within a reasonable time, the grievor’s unblemished work record, which included a period of 18 months after the alleged misconduct, and his better–than–average attendance. The deputy head also abandoned one of its primary justifications for the indefinite suspension without pay on which it relied at the original hearing — the allegation that the grievor attended work without advising his supervisor that he had been criminally charged (see paragraphs 16 and 109 of the original decision).\n\nThe deputy head replies that it is not flouting any ruling by attempting to introduce evidence of a conviction. The deputy head states that parties are not permitted to seek judicial review of interlocutory rulings, that an adjudicator is not functus officio until a final decision is made and that it remains of the view that the information should have been considered.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-27", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 39–41", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The deputy head states that the conviction sheds light on the suspension decision. Although the conviction occurred after the date of the indefinite suspension without pay, it is proof that the events before the conviction occurred. Therefore, it is not new evidence. The deputy head states that the grievor has been convicted of the offence and that it is not required to prove the offence: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. The fact that a conviction will feature prominently in a hearing about the grievor’s termination does not mean that it cannot be introduced in the hearing for the suspension grievance. The indefinite suspension without pay was an interim measure, and an indefinite suspension and a termination constitute one penalty: see Côté v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-9811 to 9813 and 10178 (19831017). The deputy head states that, if the grievor wished to attack the reliability of evidence obtained through a DNA warrant, he could have testified at the original hearing. Principles that the grievor cited, related to criminal law, are not easily transferrable to labour arbitration adjudication proceedings; proceedings before an adjudicator are summary in nature, and adjudicators are not bound by the same rules of evidence as are the criminal courts.\n\nThe CSC originally suspended the grievor indefinitely without pay for two reasons: he was charged with sexual assault, and he failed to advise his supervisor before resuming his duties that he had been charged with a criminal offence.\n\nI determined in the original decision that the deputy head did not prove the grievor’s failure to disclose the criminal charge before he returned to work.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-28", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 42–43", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "This case is about the sufficiency and quality of the information tendered by the deputy head at the original hearing to support an indefinite disciplinary suspension of the grievor without pay, after he was charged with sexual assault. In the original decision, I found that the indefinite suspension pending investigation became disciplinary as of May 3, 2006, 30 days after it was imposed. The original decision invalidated the disciplinary part of the indefinite suspension without pay. Given the CSC’s approach, particularly that it did nothing to investigate, the indefinite disciplinary suspension without pay would have continued until the date on which a court resolved the grievor’s criminal charge. The CSC’s decision rested entirely on the privacy coordinator’s letter (Exhibit E-7). The deputy head’s only witness, Mr. Brown, was not personally involved with the initial decision to suspend the grievor indefinitely without pay or to order an investigation.\n\nDespite my ruling provided in 2010 PSLRB 131, the deputy head persists in submitting information about the grievor’s conviction, which occurred more than two years after the date on which he was indefinitely suspended without pay. I see no basis to conclude that an event that occurred two years later — a conviction — justifies the indefinite disciplinary suspension without pay at the time it was imposed. The CSC clearly did not possess that information when it decided to suspend the grievor. My task is to review the CSC’s decision in the context of when it was made, based on the information available at that time, and not on a set of facts as of today, six years after the date of the indefinite disciplinary suspension without pay: see Québec Cartier.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-29", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 44", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The treatment of the admission of subsequent-event information is set out in Québec Cartier, at pages 1101-1102, as follows: This brings me to the question I raised earlier regarding whether an arbitrator can consider subsequent-event evidence in ruling on a grievance concerning the dismissal by the Company of an employee. In my view, an arbitrator can rely on such evidence, but only where it is relevant to the issue before him. In other words, such evidence will only be admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented. Accordingly, once an arbitrator concludes that a decision by the Company to dismiss an employee was justified at the time that it was made, he cannot then annul the dismissal on the sole ground that subsequent events render such an annulment, in the opinion of the arbitrator, fair and equitable. In these circumstances, an arbitrator would be exceeding his jurisdiction if he relied on subsequent-event evidence as grounds for annulling the dismissal. To hold otherwise would be to accept that the result of a grievance concerning the dismissal of an employee could vary depending on when it is filed and the time lag between the initial filing and the final hearing by the arbitrator…", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-30", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 45", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "It is possible that information about the grievor’s conviction could be relevant to his termination grievance. However, I was not appointed to hear or decide his termination grievance. My jurisdiction is over the grievor’s indefinite disciplinary suspension without pay only. This review is based on the information that the CSC had when it imposed the indefinite disciplinary suspension without pay and continued it. Because of directions for hearing in my ruling provided in 2010 PSLRB 131, I have not relied on the information provided by the deputy head about the grievor’s conviction and sentencing, including the cited cases, which apparently relate to his conviction and sentencing hearing.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-31", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 46", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "This matter was referred back to me by the Federal Court of Appeal because it found an adjudicative error in the treatment of hearsay evidence in the original decision. The Court stated as follows at paragraphs 21 and 22 of 2010 FCA 24: [21] In characterizing the use of hearsay evidence to establish a material fact as an adjudicative error, the adjudicator was articulating a principle which is at odds with paragraph 226(1)(d) of the PSLRA which provides that an adjudicator may accept any evidence, whether admissible in a court of law or not. The adjudicator is not bound to accept hearsay evidence but he cannot reject it out of hand simply because it is hearsay. The issue is whether it is reliable. In this respect, we note that there are elements of information contained in the letter from Crown counsel’s office which are not contradicted and do not appear to be controversial. It was unreasonable, and an error of law, for the adjudicator to conclude that the evidence was not to be considered simply because it was hearsay. [22] Later in the same paragraph, the adjudicator comments that the weight to be attached to hearsay evidence is minimal and that he attaches no weight to hearsay evidence. It is trite law that it is for the adjudicator to weigh the evidence before him, but it is equally trite that in order to do so, he must consider it. He can not [sic] dismiss it out of hand because it is hearsay evidence. In this case, one of the issues raised was whether the appellant had deceived the police. The adjudicator held that there was no evidence on point, thereby ignoring the contents of the letter from Crown counsel’s office, which was material to that issue.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-32", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 47–48", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I believe that the Court’s direction is to weigh the evidence and to come to a reasoned determination as to the effect of the evidence tendered, keeping in mind the three questions that must be determined when assessing whether the deputy head proved just cause for the indefinite disciplinary suspension without pay, as specified in Wm. Scott & Co Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1977] 1 Can. L.R.B.R. 1 (“William Scott”). I pause to note that the William Scott questions are disjunctive. If the deputy head fails to establish an event meriting discipline, then there is no need to consider the remaining two questions.\n\nThe first William Scott criterion is primarily a factual inquiry “… about whether the employee actually engaged in the conduct which triggered the discharge …”: see William Scott. The Federal Court of Appeal referred to certain of the evidence as “not … controversial.” At the original hearing, the grievor did not admit to any facts; nor was I made aware of any pre-hearing admissions made to the CSC during its investigatory process or during the grievance process. This means that all the evidence was disputed and that the deputy head had the burden of proving by sufficiently clear, convincing and cogent evidence all the elements of its case on a balance of probabilities: see F.H v. McDougall.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-33", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 49–50", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Generally, evidence is reliable when it is espoused by a witness who observed facts and whose ability to observe and recall can be tested through cross-examination. When determining whether evidence is credible and reliable, adjudicators often apply the test in Faryna when assessing disputed testimony. Adjudicators examine whether the information provided by a witness makes sense in the context of the circumstances. I cannot apply that approach because no testimony was given concerning the facts of the alleged misconduct. I note that I do not even have the words of several witnesses in statements from which I could possibly make some use of the Faryna test, as the information in the privacy coordinator’s letter (Exhibit E-7) was edited.\n\nHearsay evidence is admissible at adjudication pursuant to paragraph 226(1)(d) of the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, which reads as follows: 226. (1) An adjudicator may, in relation to any matter referred to adjudication, (d) accept any evidence, whether admissible in a court of law or not …", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-34", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 51", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At the original hearing, the privacy coordinator’s letter (Exhibit E-7) was received, was marked as an exhibit (Exhibit E-7) and was part of the evidence before me. The grievor did not object to the deputy head tendering it. I was not asked to rule on its admissibility. No limits were placed on the use of the evidence. Had I been asked for a ruling, I would have determined that the document was admissible. I note that the privacy coordinator’s letter (Exhibit E-7) would have been admissible in court, either as a business record under the Canada Evidence Act, R.S.C., 1985, c. C-5, or as part of the res gestae, meaning matters leading up to and forming part of the narrative that led to the indefinite disciplinary suspension without pay.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-35", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 52", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The evidence is not barred from consideration simply because it contains hearsay. It is a question of what the privacy coordinator’s letter (Exhibit E-7) shows and what fair and proper inferences can be drawn from it, given that the deputy head has a burden to establish by sufficiently clear, convincing and cogent evidence just cause for an indefinite disciplinary suspension without pay, on a balance of probabilities. An approach to hearsay evidence, which I believe is the proper course, is set out as follows in Canadian Labour Arbitration, at para 3:4310: More recently, the analysis in relation to both admissibility and weight has been carried out by application of the criteria of “necessity” and “reliability”, as developed by the Supreme Court of Canada in criminal cases. Hearsay evidence may also be admitted pursuant to the res gestae doctrine and other exceptions… Although admissible, in light of the general acceptance by arbitrators of the purposes of the hearsay rule, typically they refuse to base a finding of critical facts on hearsay evidence, particularly when those facts could have been established either by calling an employee or by an admission by the grievor. Indeed, even when hearsay evidence is admitted, arbitrators have generally been reluctant to give hearsay evidence much weight, given the inherent unfairness of not being able to test it by cross-examination and the tendency of arbitrators to act in accordance with the “best evidence rule”. [Footnotes omitted]", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-36", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 53", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The principled approach to admitting hearsay evidence is based on the criminal law cases of R. v. Khan, [1990] 2 S.C.R. 531, and R. v. Smith, [1992] 2 S.C.R. 915. In Khan, the Supreme Court of Canada wrote as follows at page 548: I conclude that hearsay evidence of a child’s statement on crimes committed against the child should be received, provided that the guarantees of necessity and reliability are met, subject to such safeguards as the judge may consider necessary and subject always to considerations affecting the weight that should be accorded to such evidence… I conclude that the mother’s statement in the case at bar should have been received. It was necessary, the child’s viva voce evidence having been rejected. It was also reliable; the child had no motive to falsify her story, which emerged naturally and without prompting. Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-37", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 54", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In Smith, the Supreme Court of Canada held as follows at pages 933-934: This Court's decision in Khan, therefore, signaled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence, and its necessity. A few words about these criteria are in order. The criterion of \"reliability\"—or, in Wigmore's terminology, the circumstantial guarantee of trustworthiness—is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be “reliable”, i.e., a circumstantial guarantee of trustworthiness is established. The evidence of the infant complainant in Khan was found to be reliable on this basis. The companion criterion of “necessity” refers to the necessity of the hearsay evidence to prove a fact in issue. Thus, in Khan, the infant complainant was found by the trial judge not to be competent to testify herself. In this sense, hearsay evidence of her statements was necessary, in that what she said to her mother could not be adduced through her. It was her inability to testify that governed the situation. The criterion of necessity, however, does not have the sense of “necessary to the prosecution’s case”. If this were the case, uncorroborated hearsay evidence which satisfied the criterion of reliability would be admissible if uncorroborated, but might no longer be “necessary” to the prosecution’s case if corroborated by other independent evidence.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-38", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 54", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Such an interpretation of the criterion of “necessity” would thus produce the illogical result that uncorroborated hearsay evidence would be admissible, but could become inadmissible if corroborated. This is not what was intended by this Court's decision in Khan. As indicated above, the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available. Necessity of this nature may arise in a number of situations. Wigmore, while not attempting an exhaustive enumeration, suggested at § 1421 the following categories: (1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing [by cross-examination]. This is the commoner and more palpable reason … (2) The assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources … The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same. Clearly the categories of necessity are not closed. In Khan, for instance, this Court recognized the necessity of receiving hearsay evidence of a child’s statements when the child was not herself a competent witness. We also suggested that such hearsay evidence might become necessary when the emotional trauma that would result to the child if forced to give viva voce testimony would be great. Whether a necessity of this kind arises, however, is a question of law for determination by the trial judge.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-39", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 55–56", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "When determining whether the deputy head has proven by sufficiently clear, convincing and cogent evidence, on a balance of probabilities, misconduct supporting an indefinite disciplinary suspension without pay, I must decide the weight to attach to the privacy coordinator’s letter (Exhibit E-7). It is important to scrutinize it with care, as there is no other evidence of misconduct by the grievor. He was a good employee, with some seniority and a good attendance record. He received commendations from the CSC. He appears to have treated female co-workers with respect. There was evidence that a female co-worker did not feel at risk working with him, even though she knew of the criminal charge against him. It was an “older allegation” that was about a misconduct that occurred outside the workplace. The grievor had received a judicial interim release pending the determination of his criminal charge. The deputy head did not interview the grievor or the complainant. Nor did it gather any evidence or information. The deputy head could have taken many steps to ascertain the allegation’s reliability or trustworthiness, but nothing was done. A proper investigation was not conducted. Nor were the investigators called as witnesses to explain their investigation.\n\nWhen weighing the privacy coordinator’s letter (Exhibit E-7), I considered a number of points, as follows, that bear on the reliability of the allegations that it contains: I note that I considered these issues in a vacuum as the deputy head failed to call the privacy coordinator at the original hearing and simply introduced his letter (Exhibit E-7) by calling its recipient to testify, who obviously could have shed no light on the reliability of its allegations.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-40", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 57–59", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I note that the privacy coordinator is a provincial government official who is a Crown counsel and a privacy coordinator. It appears that his letter (Exhibit E-7) was written in the ordinary course of business, pursuant to a protocol to inform Crown employers of charges faced by an employee. Presumably, a privacy coordinator has to balance a duty to be accurate with a duty to preserve the complainant’s privacy. Presumably, the privacy coordinator’s letter (Exhibit E-7) was carefully crafted with a view to protect that privacy, as it was heavily edited. I use “presumably” because I have no information before me to assist me on these points. I would have liked to hear from the privacy coordinator at the original hearing as his letter (Exhibit E-7) was the sole source of proof of misconduct.\n\nI take adjudicative notice that, in British Columbia, the decision to lay a criminal charge rests with the Crown and not with a complainant or the police. A Crown counsel makes a decision based on the reviewed evidence, presumably taking into account a standard of reviewing evidence.\n\nThere is no evidence before me that the privacy coordinator was the Crown counsel who made the charging decision. There is no evidence before me of the standard used by the Crown in assessing the information collected by the police to determine whether a charge should be laid. There is no evidence before me that the privacy coordinator reviewed the substance of the evidence collected by the police to determine whether the evidence collected met the Crown’s standards for laying a criminal charge.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-41", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 60–61", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "There is no evidence before me that the privacy coordinator reviewed any of the evidence or source documents other than a “police report,” which is not actual evidence but a summary. Without evidence, I am not prepared to infer that the police summary was actually prepared by an officer who dealt directly with either the complainant or the grievor. It could have been prepared by a liaison officer with no connection to the investigation. Given that there is no evidence of a personal review of the evidence or of the charging process by the privacy coordinator, then there is no circumstantial guarantee as to the reliability of his letter’s (Exhibit E-7) contents. It contains mere allegations of misconduct on the part of the grievor in his dealings with the complainant or the police.\n\nOne could say that the privacy coordinator’s letter (Exhibit E-7) is a business record. Although business records are admissible in proceedings, there is no legal presumption that the contents of a document are accurate and truthful. Adjudicators are often required to make decisions about documents that purport to prove something other than what they are. On examining the privacy coordinator’s letter (Exhibit E-7), I can discern that a government official is communicating facts to the CSC that an indictable offence was laid against the grievor. Some heavily edited information is given about the investigation and the underlying facts. Further information about the standards used in assessing the information would have helped me assess whether a substantial guarantee was made as to the trustworthiness of the allegations.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-42", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 62–64", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I thought that, at the original hearing, where it was clear that the indefinite suspension without pay was being grieved as a disciplinary penalty, the deputy head would call the privacy coordinator as a witness to explain and elaborate on the contents of his letter (Exhibit E-7). The deputy head might have wanted to call the Crown prosecutor who approved the charge, or some evidence of the standard used. The deputy head might have called a police officer knowledgeable about the investigation. This is particularly important, because the CSC relied on the privacy coordinator’s letter (Exhibit E-7) as its sole proof of misconduct and because the grievor had some seniority and a good record. His rights were substantially impacted by the CSC’s decision to impose an indefinite disciplinary suspension without pay.\n\nOn examination, it becomes apparent that the privacy coordinator’s letter (Exhibit E-7) contains different types of information. It has been heavily edited, and it apparently discloses information that can be characterized as second–, third– or fourth–hand hearsay.\n\nThere is information in the privacy coordinator’s letter (Exhibit E-7) that purports to set out dealings between the Crown and the grievor. The grievor was charged with the indictable offence of sexual assault, which is confirmed by the information attached to the privacy coordinator’s letter (Exhibit E-7) and by a letter that the grievor’s counsel provided to the CSC (Exhibit E-10). That is beyond dispute and is within the privacy coordinator’s knowledge.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-43", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 65–66", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "However, I note that the privacy coordinator’s letter (Exhibit E-7) does not contain the full details of the interaction between the Crown and the grievor. The grievor had apparently hired a lawyer to monitor whether charges were to be laid, and the lawyer repeatedly asked to be informed in advance so that the grievor could appear to face the charges. The grievor was not actually advised of the charge by the Crown, but the CSC was informed directly by the privacy coordinator’s letter (Exhibit E-7). The grievor did not become aware of the charge until the CSC suspended him indefinitely without pay (Exhibit E-10).\n\nIt is clear from Exhibit E-10 that the grievor gave a statement to the police in 2004, that he was released on a promise to appear, that no information had been laid as of the appearance date, that the grievor’s lawyer monitored the situation monthly to determine whether charges were contemplated, and that he was advised in early March 2006 that no report had been received and no charge laid. I note that the privacy coordinator’s letter (Exhibit E-7) is uncontradicted proof that the grievor was charged with an offence, but it is an edited version of events that occurred between the grievor and the Crown.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-44", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 67–68", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The privacy coordinator’s letter (Exhibit E-7) also contains information about the grievor’s dealings with the complainant. The only source referred to in the privacy coordinator’s letter (Exhibit E-7) for that information is the police report. The information consists of the following: I note that those allegations, if proven, could constitute the criminal offence of sexual assault. Although it is not stated expressly in the privacy coordinator’s letter (Exhibit E-7), an issue at a criminal trial might be the complainant’s capacity to consent and whether a substance intoxicated her.\n\nThe information provided in the privacy coordinator’s letter (Exhibit E-7) is heavily edited. Because of that, I could not see any hallmarks suggesting that its information is reliable. For example, I note that, in Khan, a hallmark of reliability was the detailed account given in the child’s words that was not normally within a young child’s knowledge. For example, nothing in the privacy coordinator’s letter (Exhibit E-7) assists me with determining how soon the alleged offence was reported to the police. Had I had the complainant’s statement, I might have been able to determine whether there were hallmarks suggesting that the information in the privacy coordinator’s letter (Exhibit E-7) is reliable.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-45", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 69–71", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I note that the deputy head’s argument continues to gloss or spin the information the CSC received beyond reasonable inferences that can be drawn from the privacy coordinator’s letter (Exhibit E-7). The deputy head argues as follows: … The facts of this case reveal a far more serious situation for the employer. This is an employee charged with a violent sexual assault who when first questioned by the police lied about his name, lied about knowing the victim and lied about not having had sex with the victim. This raises the seriousness far beyond what was required in the McManus decision. [Emphasis added]\n\nWith respect to that argument, I note that, although the grievor was charged with sexual assault, there is no indication in the privacy coordinator’s letter (Exhibit E-7) that the charge was of violent sexual assault. The definition of sexual assault in the Criminal Code encompasses a variety of acts, from an unwanted kiss to groping or vaginal intercourse. I can infer that the allegations are serious because they raise the issue of consent to sexual acts possibly being vitiated because of the administration of a substance. As I pointed out in the original decision, I cannot infer that it was a violent sexual assault just because the Crown chose to proceed by indictment. A lengthy period passed between the date of the alleged offence and the date on which a charge was laid. I take adjudicative notice that there is a six-month limitation period for summary conviction offences, and the Crown may simply have chosen to proceed by indictment because of the expiration of the limitation period.\n\nThe deputy head alleged that the grievor lied about his name to the police. That allegation has no support in the privacy coordinator’s letter (Exhibit E-7).", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-46", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 72–73", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Sometimes evidence disclosed immediately after an alleged event is reliable. I do not have such information, as details of when the complainant disclosed information are not provided in the privacy coordinator’s letter (Exhibit E-7). Sometimes, peculiar hallmarks exist that suggest an inherent reliability to an allegation. This is the case with young children alleging sexual offences who would not ordinarily be expected to be able to provide details. The heavily edited information in the privacy coordinator’s letter (Exhibit E-7) precludes me from finding a detailed or peculiar description of events that would amount to a hallmark of reliability. Had I had the complainant’s original statement, I might have been able to discern such hallmark.\n\nThe deputy head points to the presence of DNA evidence. Sometimes testing provides a good indicator of probable guilt, such as a DNA analysis of seminal fluid collected from swabbing a complainant’s vagina. The privacy coordinator’s letter (Exhibit E-7) does not disclose what part if any of the complainant’s body was swabbed during the testing process. Given the lack of detail in the privacy coordinator’s letter (Exhibit E-7), I cannot conclude that the DNA testing rises to the level of clarity, cogency and convincingness of proving that sexual activity occurred.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-47", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 74–75", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I cannot rely on a privacy coordinator’s summary of a report to Crown counsel that summarized information provided by the police alleging that the grievor reacted in a certain way and that he made certain statements during a police investigation. It could well be highly cogent evidence that would establish probable misconduct, if I had the details. There is too much guesswork to take it as reliable, as much might depend on the actual words used by the grievor and the police officer, the context in which the words were spoken, the police officer’s conduct, and whether the interview was videotaped or recorded in the police officer’s notes. All of that is unknown to me. Further, it appears that the information was edited on its journey from the police officer to the report to Crown counsel and then on to the privacy coordinator and to his letter. Therefore, it lacks clarity, cogency and convincingness.\n\nA good example of the reliability of layered information is that the deputy head maintains in its argument that the grievor misled the police officer as to his identity, which was surmised from the privacy coordinator’s letter (Exhibit E-7), when that letter does not state that information. I note that it would have taken little or no effort for the deputy head to ascertain the identity of the police officer and to issue a summons to that officer to appear at the original hearing to testify on that point.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-48", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 76", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On the point of the false name, it is clear that the grievor did not give one to the police but that he might have to the complainant. It is unclear from the privacy coordinator’s letter (Exhibit E-7) when the grievor allegedly gave a false name, as it does not contain that information. In my view, there may well be a difference between a person using a “handle” or a “user name” in a chat-line context and providing a false name in a face-to-face meeting or on a date. The complainant had a telephone number for the grievor and therefore the means to identify him easily. That point remains unclear to me, particularly since the privacy coordinator couched his letter (Exhibit E-7) in less-than-clear terms by stating the following: “Reportedly, Mr. Basra gave the complainant a false name …” No details are given; nor are the circumstances. It is clearly a less probative statement than: “Mr. Basra gave the complainant a false name.” The deputy head relies strongly on this point, but the privacy coordinator’s letter (Exhibit E-7) is unclear. The deputy head could have dealt with that issue by calling the privacy coordinator or the investigating officer to give evidence at the original hearing. The burden of proof rests with the deputy head, which is bound to prove all the facts supporting the indefinite disciplinary suspension without pay. The CSC could easily have obtained or sought to obtain the grievor’s version of the facts. It did not.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-49", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 77–78", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In the privacy coordinator’s letter, there is a synopsis of dealings between the grievor and the police during an investigation. Some of this information might have been collected by a police officer or others during an investigative process. This information consists of the following: Again, there must be a source of information for those points, including a statement from the grievor or, alternatively, police officers’ notes, a report to Crown counsel, a DNA warrant and the information relied upon to obtain the warrant, information concerning the samples and what body part if any the sampling was taken from, and a report analyzing the samples. For example, I note that the deputy head submitted that “… the DNA warrant establishes that [the grievor] did have sex with the victim.” The privacy coordinator’s letter (Exhibit E-7) states only that a sample from the grievor matched a sample taken from the complainant. It states nothing about what part if any of her body was sampled.\n\nParticularly germane in the synopsis description would have been the precise words or gestures that the grievor allegedly used about denying knowing the complainant, denying that sex occurred and refusing to provide a DNA sample. I note that the CSC relied on those key points for indefinitely suspending the grievor without pay and that the information was heavily edited by someone with apparently no firsthand knowledge of the case. The information may well be third-hand information – originating with an investigator and then passing to an officer who prepared the report to Crown counsel, and finally to the privacy coordinator who reviewed it and to his letter.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-50", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 79–81", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The evidence is mixed on whether the grievor misled the police. I do not have the actual information provided to the police. Information in a letter from the grievor’s counsel dated April 27, 2006 (Exhibit E-10), indicates that the grievor gave a statement to the police on November 18, 2004.\n\nI accept that there is no controversy that the grievor was charged with an offence. However, the deputy head used second-, third- and fourth-hand material in the privacy coordinator’s letter (Exhibit E-7) to attempt to establish the material fact that the grievor probably committed sexual assault. I note that sexual assault is a serious matter and that, generally, in a civil sexual assault case, the assault must be established by clear, cogent and convincing evidence: see F.H. v. McDougall.\n\nGenerally, before a decision maker makes findings, he or she hears from both sides. The CSC appears to have recognized the seriousness of the situation by appointing an investigation panel, which did little or nothing for months. The CSC did not seek out the grievor’s side of the story; it simply suspended him indefinitely without pay. In my view, its intent was to suspend him indefinitely without pay until the matter was dealt with in criminal court. My view is that the investigators did not intend to interview the grievor before the matter was dealt with in criminal court.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-51", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 82–84", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "To the extent that the privacy coordinator’s letter (Exhibit E-7) is uncontradicted, this is the direct result of the CSC failure to investigate and obtain the grievor’s side of the story. Further, at the original hearing, the deputy head introduced the privacy coordinator’s letter (Exhibit E-7) by calling its recipient to testify. The deputy head did not call the privacy coordinator. The deputy head deprived the grievor of the opportunity to challenge the underlying facts that alleged his misconduct by cross-examining a witness.\n\nI found that method particularly unfair when combined with the deputy head’s opening statement that the grievor had been given an opportunity to respond to the allegations when, in fact, no disciplinary meeting was ever held and the investigators did not ask him for his side of the story.\n\nThe grievor did not adduce any evidence to contradict the contents of the privacy coordinator’s letter (Exhibit E-7). In our adversarial system, a grievor is not required to testify. However, I note that the burden of proof in disciplinary matters rests with the deputy head to establish by clear, cogent and convincing evidence its case on a balance of probabilities. The question is whether the evidence tendered by the deputy head is sufficiently reliable to discipline the grievor by suspending him indefinitely without pay. My concern remains with the quality of evidence used by the CSC to suspend him.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-52", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 85–86", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Apparently beyond controversy or dispute is that the grievor was charged with a sexual offence, which was proceeding to trial. Any sexual assault is serious. My concern is that the CSC did nothing to attempt to ascertain the facts, other than having Mr. Scott read the privacy coordinator’s letter (Exhibit E-7) and appoint investigators who did little or nothing to ascertain the facts. From time to time, the indefinite disciplinary suspension without pay was renewed based on no new information coming to the CSC’s attention. It seems that the CSC simply accepted the contents of the privacy coordinator’s letter (Exhibit E-7) as proven facts.\n\nFurther, the CSC leapt to certain conclusions, which were not supported by the evidence. For example, it concluded that the grievor had a duty to disclose to the CSC that he was being investigated by the police, that he was dishonest by withholding that information and that he failed to disclose that he had been charged with a criminal offence. I dealt with those points in the original decision, which led me to conclude (and I remain of the view) that the CSC should not have suspended the grievor indefinitely without pay just because, according to Mr. Scott, he “… failed to advise his supervisor, before resuming his or her duties, of being charged with a criminal offence …”, as no facts justify that assertion.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-53", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 87", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I reject the deputy head’s argument that little could be done in the investigation except to await the disposition of the criminal charge. I commented on the inadequate investigation in the original decision as follows: [28] There was no proof tendered in this proceeding that the CSC obtained an answer from the RCMP. From what was tendered before me, it is clear that the CSC never had in its possession a police report or any of the Crown disclosure package provided in connection with the criminal charge. There is no clear explanation of the CSC’s failure to collect further information. If the investigators had been called as witnesses, perhaps there would have been clearer information at the hearing as to the steps that they took to ascertain the facts.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-54", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 88", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I am mystified by the CSC’s failure to interview the grievor. I note that the importance of doing so was highlighted in the privacy coordinator’s letter (Exhibit E-7), which set out that “… you may wish to share this information with Mr. Basra, to allow him to respond in the appropriate forum.”The grievor was given notice at the outset of his indefinite suspension without pay that he would be called to a disciplinary meeting. In a letter dated April 24, 2006 (Exhibit E-9), he was advised that a disciplinary investigation had been commenced. He was notified as to who was conducting it. He was told the following: “… [y]ou will be contacted in due course to arrange an interview … [y]ou have the right to bring a representative to the interview.” By the time of the original hearing, the grievor had not been contacted for an interview, the investigators had not reported and Mr. Brown had not extended the time for their report. At the original hearing, Sherry Enns, a bargaining agent steward, described the process that the CSC used to call disciplinary meetings, which is set out as follows at paragraph 83 of the original decision: [83] Ms. Enns, a CX-02, testified on behalf of Mr. Basra. As well as working at Matsqui Institution she is Local President of the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN, Mr. Basra’s bargaining agent. She testified that in her experience when the CSC wishes to talk to an employee about a disciplinary matter, it sends the employee a letter and also sends a copy to the bargaining agent. The CSC usually gives 48 hours’ notice, and sets a time, date and place for a meeting. Other than grievance meetings, Ms.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-55", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 88–89", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Enns is not aware of any investigation or disciplinary meetings called by the CSC concerning Mr. Basra in which the bargaining agent was asked to participate; she is only aware of grievance meetings. The deputy head’s witness, Mr. Brown, also testified that he did not extend the time frame for the investigation. I found as follows at paragraph 65: “… Mr. Brown indicated that the usual process during an investigation is to request that the employee attend an interview and that a time, date and place are set for it…”\n\nThe CSC should have provided the grievor with the privacy coordinator’s letter (Exhibit E-7), called the grievor to a meeting and asked him if he had any information to assist it in its decision on his work status. The CSC could have requested that the grievor supply it with all documents relating to the criminal charge. That could have included a copy of the statement that the grievor apparently gave to the police during the investigation or a copy of written information that the Crown must have disclosed to the grievor during the course of the criminal case. The CSC could have asked the grievor to answer its questions. The CSC could have obtained information from such a meeting and found it helpful to assessing the risk of maintaining the grievor in the workplace. Had the grievor failed to cooperate, the CSC could have considered that when determining whether it was necessary to suspend him indefinitely without pay.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-56", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 90–91", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In my view, an employer should be concerned, when an employee is charged with a criminal offence, about whether the employee can remain in the workplace pending the resolution of the charge, whether the employee should be suspended with or without pay, and for how long, and whether the employee’s duties need changing to address any risks. At the time of the charge, until the moment of conviction, an employee is presumed innocent in the criminal law context. An accused person is not obliged to assist the police with an investigation.\n\nCriminal charges can have employment law consequences. Although an employee has the right to be silent in a criminal proceeding, unless there is an express duty to speak, it is not an absolute and unqualified right in the employment law context. An employer must have just cause to discipline an employee. Generally, it means that an employer has an obligation to investigate if it wishes to discipline an employee. An employee is obligated to answer his or her employer’s questions, particularly if the alleged misconduct could impact his or her employer’s legitimate business interests: see British Columbia Ferry Services Inc. v. British Columbia Ferry and Marine Workers’ Union (2007), 159 L.A.C. (4th) 165. At the original hearing, the deputy head’s view was that the grievor’s conduct impacted the CSC operations. Mr. Brown gave extensive evidence on that point.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-57", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 92–93", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I am left to decide whether the CSC had grounds to discipline an employee based on a letter written by a privacy coordinator alleging the commission of a criminal offence and reporting that a charge had been laid. In effect, I am being asked to accept that the privacy coordinator’s letter (Exhibit E-7) is sufficiently clear, cogent and convincing to establish on a balance of probabilities that the grievor committed a sexual assault in the circumstances alleged, therefore violating the Code of Discipline or the Standards of Professional Conduct, without the CSC even bothering to interview the grievor to determine whether there was any substance to the allegation.\n\nI am extremely uncomfortable with the proposition suggested by the deputy head that an employer may simply receive a letter from another government official outlining that a charge has been laid and suspend an employee indefinitely without pay, without any further investigation and in particular without interviewing the employee. The CSC recognized the need for a disciplinary investigation by immediately appointing investigators, who failed to conduct a disciplinary investigation. In this case, the CSC’s approach of suspending the grievor indefinitely without pay and of failing to investigate was abusive of the concept of just cause, which underlies disciplining employees.", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-58", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "paras 94–97", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I find that the deputy head did not establish on a balance of probabilities, with sufficiently clear, cogent and convincing evidence available to the CSC at the time it imposed the indefinite disciplinary suspension without pay, that the grievor committed the alleged sexual assault. Given that failure, the deputy head did not establish a breach of the Code of Discipline or the Standards of Professional Conduct: the deputy head did not meet the first part of the William Scott test.\n\nAt minimum in a case such as this, I would expect the CSC to attempt to clarify the contents of a privacy coordinator’s letter (Exhibit E-7) and to obtain more details. I would expect the deputy head to call the privacy coordinator as a witness at an adjudication hearing. I would think it prudent for the deputy head to call also the investigating officers to testify. Further, at minimum, I would expect the CSC to attempt to interview the grievor within a reasonable time.\n\nBecause of my finding, it is not necessary to consider the remaining parts of the William Scott test. Had the deputy head established on a balance of probabilities, by clear, cogent and convincing evidence available to the CSC at the time it imposed the indefinite disciplinary suspension without pay, that the grievor breached the Code of Discipline or the Standards of Professional Conduct, it would have been necessary to determine whether the indefinite disciplinary suspension without pay imposed was inordinate and, if so, a sanction that should be substituted. The grievor shall be reinstated to his position as of May 3, 2006, which is the date on which the indefinite suspension without pay became disciplinary.\n\nFor all of the above reasons, I make the following order:", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358886-59", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 53", - "act_short": "Basra (2012)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", - "marginal_note": "para 98", - "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievance is upheld. The grievor is ordered reinstated to his position as a CX-01 effective to May 3, 2006, with back pay, full benefits and with interest. I reserve jurisdiction over the implementation of this decision for a period of 90 days, to the extent specified above. May 1, 2012. Paul Love, adjudicator", - "current_to": "2012-05-01", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" - }, - { - "id": "fpslreb-358025-1", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 1–5", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Balkar Singh Basra is a correctional officer at the CX-01 group and level employed at the Matsqui Institution of the Correctional Service of Canada (\"the CSC\"), in Abbotsford, British Columbia. He grieves an indefinite suspension imposed by the CSC on April 3, 2006, in the following terms: On April 3, 2006, Randie Scott, acting warden of Matsqui Institution suspended me indefinitely without pay pending an investigation. I grieve that this disciplinary action is unwarranted, excessive and unfounded in facts and law.\n\nMr. Basra seeks immediate reinstatement, destruction of the mention of disciplinary action and investigations from his file, payment of all wages lost since the suspension, a credit for all leave that would have accrued, missed overtime, reinstatement of pension credits that would have been earned, and interest.\n\nThis matter was referred to adjudication under paragraph 209(1)(b) of the Public Service Labour Relations Act (\"the Act\"), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22.\n\nMr. Basra has been employed at Matsqui Institution since he became an indeterminate employee on August 24, 1999. Matsqui Institution is a medium security penitentiary for male inmates in the Pacific Region. It has a capacity of 350 inmates and a staff complement of 250.\n\nOn August 24, 1999, Mr. Basra signed a declaration acknowledging that he had received the Standards of Professional Conduct in the Correctional Service of Canada (\"the Standards of Professional Conduct\") (Exhibit E-4) and the Code of Discipline in the Correctional Service of Canada (\"the Code of Discipline\") (Exhibit G-17) and that he would undertake to maintain the standards of professionalism and integrity set out in those documents (Exhibit E-5).", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-2", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 6–7", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In the Criminal Code, R.S.C., 1985, c. C-46, the definition of peace officer includes a guard as defined under Part I of the Corrections and Conditional Release Act, S.C. 1992, c. 20. In his letter of appointment dated August 10, 1999 (Exhibit E-3), Mr. Basra was advised that he was a peace officer.\n\nThe \"Commissioner's Introduction\" to the Standards of Professional Conduct reads in part as follows: As public servants, we are accountable to our Minister and to Parliament, and, through them, to the Canadian people as a whole. Our behaviour must, at all times, show that we are worthy of their trust and confidence to carry out the responsibilities of our agency. As employees in the field of corrections, we have a special obligation to make sure that everything we do in our work - whether it is administrative or involves direct contact with offenders - ultimately contributes to the protection of society. This is a vital obligation that is both demanding and exciting. It calls upon each of us to meet high standards of honesty and integrity, and to approach our work in a spirit of openness, compassion and co-operation. These are indeed the hallmarks of professionalism.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-3", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 8–9", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The CSC has published the Code of Discipline (Exhibit G-17) containing a number of specific rules, including \"Standard Two Conduct and Appearance,\" which reads in part as follows: Infractions An employee has committed an infraction, if he or she: · acts, while on or off duty, in a manner likely to discredit the Service; · commits an indictable offence or an offence punishable on summary conviction under any statute of Canada or of any province or territory, which may bring discredit to the Service or affect his or her continued performance with the Service; · fails to advise his or her supervisor, before resuming his or her duties, of being charged with a criminal or other statutory offence;\n\nThe respondent called Glen Brown, who is the Warden at Matsqui Institution, as its only witness. From the cross-examination of Mr. Brown, including a review of the documents entered as exhibits in his cross-examination, it appears that Mr. Basra has met the performance objectives set for him by the CSC for various performance periods from November 1, 1999, to September 30, 2005 (Exhibits G-6, G-7, G-8, G-9, G-10 and G-11). He received from Mr. Brown (Exhibit G-12) and the Deputy Commissioner (Exhibit G-13) commendations for his role in preventing an escape attempt in September 2001. Mr. Basra has a good attendance record at work (Exhibit G-2). The respondent does not dispute that Mr. Basra is a good employee.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-4", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "para 10", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Brown received a letter from P.A. Insley, Information and Privacy Coordinator/Crown Counsel, Criminal Justice Branch, British Columbia Ministry of Attorney General dated March 24, 2006 (Exhibit E-7). The letter related some circumstances and enclosed a copy of information sworn on March 17, 2006, alleging a sexual assault by Mr. Basra against a female complainant on September 10, 2004, in Surrey, British Columbia, contrary to section 271 of the Criminal Code. The letter contained the following synopsis of the allegations: According to the Police report, Mr. Basra first had contact with the complainant through a chat line. They eventually met for an evening of drinking and clubbing. On the second meeting the couple were at Mr. Basra's house having a few drinks before going out for dinner. After a few sips of the third drink which Mr. Basra made for her, the complainant began to fade, feeling unfocused and hazy. She awoke the next morning naked on Mr. Basra's bed. She was unable to remember most of the previous evening after the point of sipping the third drink. Reportedly, Mr. Basra gave the complainant a false name; however, the police were able to locate him from the complainant's cell phone records. When questioned by the police, Mr. Basra denied having had sex with the complaint or even knowing her and refused to give a DNA sample. A DNA warrant was obtained and Mr. Basra's DNA was found to match an exhibit taken from the complainant. A warrant has been issued for Mr. Basra's arrest. You may wish to contact the Surrey Provincial Court Registry … if further information is required concerning details as to the progress of this case. This information is provided to you pursuant to our policy; you may wish to share this information with Mr.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-5", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 10–12", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Basra, to allow him to respond in the appropriate forum.\n\nThe charge relates to off-duty criminal conduct that is alleged to have occurred 18 months before the information was sworn. The complainant is not an employee at Matsqui Institution. There is no indication that Mr. Basra has been involved in any problem in the workplace or outside of the workplace since the alleged criminal conduct arose.\n\nThe letter from the Crown counsel is the only written documentation that the CSC ever obtained during its investigation. The CSC did not obtain any information concerning the terms of Mr. Basra's form of release or any conditions of his judicial interim release. I do not know, for example, whether Mr. Basra is subject to any firearms restrictions.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-6", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "para 13", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At the time of the receipt of the letter from the Crown counsel, Mr. Brown was away from Matsqui Institution and Randie Scott was acting as warden in his absence. At a meeting on April 3, 2006, Mr. Scott suspended Mr. Basra indefinitely without pay by letter dated April 3, 2006 (Exhibit E-6). It is important to consider the text of the suspension, as the letter makes it clear that the CSC was convening a disciplinary investigation and that Mr. Basra would be contacted by the investigating manager in due course: This is to advise that you are hereby suspended indefinitely without pay effective immediately, pending the completion of a disciplinary investigation, which has been convened to establish the facts surrounding your involvement in the allegation that you have contravened the Correctional Service of Canada's Standard of Professional Conduct. Information received from the Crown Counsel, Ministry of Attorney General this date advises you have been charged with sexual assault under Section 271 of the Criminal Code of Canada. During this period of suspension you are not to enter CSC premises without the permission of the Warden or his representative. You will be contacted by the investigating manager in due course.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-7", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 14–17", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In an April 3, 2006, email (Exhibit G-3) from Mr. Scott to Donna Mynott, a Human Resources officer at Matsqui Institution, Mr. Scott explained that he went over the gist of the letter with Mr. Basra at the April 3 meeting. During the course of the meeting Mr. Basra volunteered that the matter related to an allegation from 2004, that he had fully cooperated in the original matter, that he had not heard anything for the last year and a half and that he thought that the matter was over. Mr. Scott advised him that a formal investigation into Mr. Basra's actions would be convened. Mr. Scott advised Mr. Basra to call him if he had any questions.\n\nMr. Scott was not called as a witness by the respondent. Given the text of the letter of suspension and his email of April 3, 2006, he appears to have suspended Mr. Basra without speaking to him first to ascertain the facts surrounding the alleged offence, without reviewing Mr. Basra's history with the CSC and without speaking to any of Mr. Basra's supervisors or co-workers to assist in a risk assessment.\n\nOn April 24, 2006, Mr. Scott directed Jason Strijack, Acting Associate Unit Director, PI/RTC, and Jim Farrell, Security Investigative Officer, Mountain Institution, to commence a disciplinary investigation surrounding Mr. Basra's involvement in two allegations (Exhibit E-8):\n\nA report of the investigation was due by May 31, 2006. Neither investigator has yet prepared a written report in connection with the disciplinary investigation. Mr. Brown was absent from Matsqui Institution at the time the order was given to start the disciplinary investigation.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-8", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 18–20", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Basra was notified by letter dated April 24, 2006 (Exhibit E-9), of the appointment of the investigators and the allegations for investigation under the \"Code of Professional Conduct.\" Mr. Basra was notified of the names of the investigators, but was not provided with their contact information. The letter also stated that he would be contacted in due course to arrange an interview. He was also advised of his right to bring a representative to the interview.\n\nNeither Mr. Strijack nor Mr. Farrell ever talked directly to Mr. Basra about the allegations, sent a letter to Mr. Basra requesting his presence for an interview or notified him of a date set for an interview. The investigators made no attempt to interview Mr. Basra. The best that can be said of the investigation was that Mr. Strijack and Mr. Farrell attended at the courthouse in Surrey from time to time to monitor the criminal proceedings against Mr. Basra and made phone calls to the Royal Canadian Mounted Police (\"the RCMP\").\n\nOn April 24, 2006, Mr. Scott reviewed the suspension without pay (Exhibit E-11). He determined that the suspension should continue.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-9", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "para 21", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Basra's lawyer, David B. Clements, wrote to Mr. Brown on April 27, 2006 (Exhibit E-10). The letter indicated that neither Mr. Basra nor Mr. Clements was aware of the sexual assault charge until after Mr. Basra received the letter of suspension. In his letter, Mr. Clements provided some information concerning the nature of the proceedings: We were retained by Mr. Basra soon after he was interviewed by the Surrey RCMP on November 18, 2004 in relation to an allegation of sexual assault. After giving a statement to the RMCP in November 2004, Mr. Basra was released on a Promise to Appear with a return date of January 10, 2005 in Surrey Provincial Court. We attended for Mr. Basra on that date and we were advised by an employee of the Surrey Provincial Crown Counsel that no report had been received from the RCMP and therefore no charge had been laid. We wrote to the Crown on that same date asking to be advised if and when a report was received from the RCMP (see letter enclosed for ease of reference). Thereafter, on a monthly basis, we contacted the Crown to ask if any report had been received and if any charges were contemplated; the last inquiry being made in early March 2006. On each and every occasion we were informed that no report had been received and therefore no charge had been laid. We were contacted by Mr. Basra in the 3rd week of March 2006 and he advised us that he had received a letter from his employer indicating that he was to be immediately suspended because the Crown had advised that he had been charged with a criminal offence. We, however, had never been notified by the Crown despite our repeated requests. We contacted the Crown and found that Mr. Basra had been charged with sexual assault on March 17, 2006 with an offence date of September 10, 2004.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-10", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 21–25", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Neither we nor Mr. Basra were aware of this charge until he received his letter of suspension.\n\nIt is clear from the evidence that even though Mr. Basra was aware that he was being investigated by the RMCP in connection with the charge, Mr. Scott was made aware of the sworn information before Mr. Basra. On May 4, 2006, Mr. Scott wrote an email to the investigators notifying them of the receipt of the letter from Mr. Clements, and in particular referring to an apparent lack of action on the part of the Crown counsel since the date of the offence. He also wrote that neither Mr. Basra nor Mr. Clements was aware of the charge prior to receiving the suspension letter.\n\nMr. Brown testified that the contents of Mr. Clements' letter did not substantively impact the decision to continue Mr. Basra's suspension. He said that the more material issues of concern to the CSC were the nature of the criminal allegation and Mr. Basra's level of cooperation with the police during the investigation. Mr. Brown said that a less relevant concern was whether Mr. Basra notified the CSC of the allegation.\n\nFrom the chain of emails filed along with the May 4, 2006, email (Exhibit E-14) it is clear that the investigators had collected no new information and merely attended court.\n\nIt appears from an email filed as Exhibit E-15 that by July 7, 2006, the investigators had not contacted Mr. Basra directly and had not obtained any new information from the RCMP. The investigators attended court on July 6, 2006, and reported that Mr. Basra was to be arraigned on July 28, 2006.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-11", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 26–28", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On July 27, 2006, the day before the scheduled arraignment hearing, Mr. Brown wrote to Mr. Basra to inform him of his decision to continue the suspension without pay. The only new information at that time was the fact that an arraignment hearing was to take place the next day.\n\nThe CSC appears to have had some concerns with the investigation, as set out in the emails filed as Exhibit E-21. On July 28, 2006, Bobbi Sandhu, Regional Administrator for Security, wrote to Inspector J.M. McAllister of the RCMP requesting that the following information be provided: 1) When was Correctional Officer BASRA made aware that he was being investigated? 2) When was Correctional Officer BASRA notified of potential charges? 3) When was Correctional Officer BASRA formally charged with the offence? A police report will assist in furthering the investigation into this matter. Please forward the information to the undersigned who will then forward [sic] to the assigned disciplinary team.\n\nThere was no proof tendered in this proceeding that the CSC obtained an answer from the RCMP. From what was tendered before me, it is clear that the CSC never had in its possession a police report or any of the Crown disclosure package provided in connection with the criminal charge. There is no clear explanation of the CSC's failure to collect further information. If the investigators had been called as witnesses, perhaps there would have been clearer information at the hearing as to the steps that they took to ascertain the facts.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-12", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 29–32", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On September 6, 2006, Mr. Brown wrote a letter to Mr. Basra maintaining his suspension (Exhibit E-22). On September 11, 2006, Mr. Farrell reported that he attended court, that Mr. Basra did not attend but had an agent present and that the Crown counsel had not provided all of the disclosure to the defence.\n\nOn September 27, 2006, Vince Leblanc, Acting Warden, Matsqui Institution, wrote to Mr. Basra maintaining his suspension (Exhibit E-26). The only new information at that time was that Mr. Farrell and Mr. Strijack attended court on September 19, 2006, and that the court was going to set a date for a preliminary inquiry. Exhibit E-27 references a response from the RCMP; however, no such response was filed as an exhibit before me.\n\nOn October 5, 2006, Mr. Basra was notified in a separate memorandum from Mr. Leblanc that a review was being conducted of Mr. Basra's reliability status in light of the sexual assault charge (Exhibit G-20). On October 16, 2006, Mr. Brown wrote a letter to Mr. Basra maintaining his suspension (Exhibit E-25).\n\nIn 2006, Mr. Basra made a complaint concerning the breach of his privacy rights by Mr. Brown. An apology has been offered to Mr. Basra from the CSC for the breach of his privacy rights.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-13", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 33–36", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The Treasury Board Secretariat has published \"Guidelines for Discipline\" (Exhibit G-26) for the core public administration. That guide provides that as part of an investigation, the employee has the right to be confronted with the alleged wrongdoing and to have an opportunity to respond as part of a disciplinary investigation. Under those guidelines employees can be suspended indefinitely: ▪ pending investigation of certain suspected misconduct when the presence of the employee at work cannot be tolerated or could undermine or impede the investigation (see Annex 2 for indefinite suspension criteria as enunciated in Larson PSSRB file 2002 PSSRB 9); or\n\n\"A Guide to Staff Discipline and Non Disciplinary Demotion or Termination of Employment for Cause\" (Exhibit G-25) calls for timely discipline decisions.\n\nMr. Brown has a 28-year history in federal corrections. He was Associate Warden at Matsqui Institution from 1996 to 2005. Mr. Brown became Warden at Matsqui Institution in June 2005. He has worked at Kent Institution as a living unit officer and as a living unit development officer. He has worked as a community parole officer and as a project manager at regional and national CSC headquarters. He has also worked as associate warden, and acting deputy warden at Matsqui Institution.\n\nMr. Brown said that the population at Matsqui Institution contains inmates with entrenched criminal values and includes very few sex offenders. Sex offenders are not well regarded by the inmates at Matsqui Institution.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-14", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 37–40", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Brown testified that there are approximately 150 correctional officers at Matsqui Institution and 80 of them are at the CX-01 group and level. The duties of a CX-01 generally include providing static security, staffing the perimeter and control posts, and controlling movement inside Matsqui Institution. In cross-examination, Mr. Brown admitted that most of the CX-01 posts and duties are weighted heavily towards static security. The respondent filed work descriptions for the CX-01 positions (Exhibits E-1 and E-2). Mr. Brown said that the CX-01s are expected to model behaviour that is expected from inmates. All correctional officers are there to \"lend an ear\" if an inmate comes forward with problems, but Mr. Brown indicated that the \"lion's share\" of this work falls to the CX-02s. The CX-01s work in the \"bubble\" within Matsqui Institution. The only armed posts within this medium-security institution are the perimeter posts.\n\nApproximately one-third Matsqui Institution staff is female; many of those employees are in positions where the workday ends at 17:00. Some female correctional officers work evenings.\n\nMr. Brown admitted that he does not have any detailed knowledge of Mr. Basra or his service with the CSC. Mr. Brown reviewed documents and talked to Donna Reynen, Assistant Warden at Matsqui Institution, in preparation for this hearing. He described Mr. Basra as a good employee.\n\nMr. Brown explained that, as a correctional officer, a CX-01 is a peace officer while engaged in the execution of duties within Matsqui Institution and has the power to arrest an inmate and use force. By policy, this power is restricted and the correctional officer must seek approval in advance from a superior.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-15", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 41–44", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Brown was not involved in any of the early decisions about Mr. Basra, as he was not at Matsqui Institution. Mr. Scott was Acting Warden in Mr. Brown's absence. Mr. Scott has been away on sick leave since September 2006 and did not give evidence in this case. When Mr. Brown returned to Matsqui Institution, he was briefed on major developments by Mr. Scott, which included Mr. Basra's indefinite suspension. Mr. Brown believes that Mr. Scott consulted with Ms. Mynott, who consulted in turn with Beth Tyler, a regional human resources officer.\n\nMr. Brown said that Mr. Scott told him that prior to suspending Mr. Basra, he had discussions with Staff Relations and the Deputy Warden about \"the issues at hand.\" Mr. Brown said that he thought that Mr. Scott was mostly concerned about the nature of the offence, Mr. Basra's interaction with the police, the serious risks that the matter presented and the need to remove Mr. Basra from the workplace. Mr. Brown said that Mr. Scott felt quite determined about that.\n\nMr. Brown said that Mr. Scott used as criteria risks in the workplace, the reputation of the CSC through his discussion with Staff Relations and, in particular, the criteria known as the \"Larson criteria.\"\n\nI note that Mr. Brown can only relate what Mr. Scott told him and the correspondence that Mr. Brown saw. If the respondent wished to establish what Mr. Scott did and considered, the respondent should have called Mr. Scott. It is clear that Mr. Brown met with Mr. Scott and Ms. Reynen and agreed with Mr. Scott's decision.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-16", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 45–47", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Through Mr. Brown, the respondent filed a chain of emails that started on May 4, 2006, from Mr. Scott and that ended with one from Meena Chima on June 7, 2004 (Exhibit E-14). Mr. Brown was not copied on all of the emails in the chain. The chain contained emails from Mr. Scott to the investigators, from Ms. Mynott to Mr. Scott and Mr. Brown and copied to Ms. Tyler, from Mr. Brown to the investigators, from Mr. Strijack to Ms. Mynott, from Ms. Mynott to Mr. Strijack, from Ms. Mynott to Ms. Chima and from Ms. Chima to Ms. Mynott. Except for Mr. Brown, none of these people were called to give evidence. The email chain adds no evidence to this case and makes it clear that, as of June 7, 2006, the CSC had very little information with which to make a risk assessment.\n\nIn Exhibit E-14 and in an email from Mr. Strijack dated June 7, 2006, and copied to Mr. Brown, Mr. Strijack wrote in part as follows: In terms of a Risk Assessment regarding potential work re-location, pay action and such, I would recommend a meeting to discuss all of the factors. I would like to get a little more feedback from the RCMP before that meeting, however.\n\nMr. Brown does not remember exactly when he became aware of Larson v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 9, which sets the criteria used to assess a continuing suspension. It appears that he became aware of these criteria at least by June 16, 2006.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-17", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 48–50", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In June 2006, Mr. Brown said that he conducted a more formal review of Mr. Basra's status as a suspended employee. This resulted in a memorandum to Mr. Basra's disciplinary file (Exhibit E-13). Mr. Brown concluded that Mr. Basra's presence inside Matsqui Institution or any other CSC facility represented a reasonably serious risk to the CSC, damaged the reputation of the CSC and rendered Mr. Basra unable to perform his duties.\n\nIn particular, Mr. Brown said thatthe police hadalready investigated the matter and acquired the evidence to lay the charge. Crown counsel had approved charges. Early information indicated that Mr. Basra did not fully cooperate with the police investigation and that he misled them by giving a false name. Mr. Basra had been directly linked by means of DNA evidence. Further, he did not advise the CSC of the charge, contrary to what he was required to do. While a CSC Board of Investigation had been convened and had not yet concluded, the information received at that point disturbed Mr. Brown as to the CSC's reputation, and suggested that Mr. Basra was unsuitable for discharging care to other persons - particularly persons over whom he could have some power.\n\nMr. Brown said that he considered whether continued employment might have been achieved through intensive supervision or through a transfer to another location. Mr. Brown's opinion was that Mr. Basra's continued employment was neither reasonable nor possible at that time.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-18", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 51–53", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "There is no direct evidence before me of a duty of Mr. Basra to cooperate with the police or of his failure to do so. It appears that Mr. Brown is confused as to the information from the Crown counsel. The letter from the Crown counsel disclosed that Mr. Basra did not give his correct name to the complainant, but there is no evidence of that he misled the police. Further, it is apparent that Mr. Brown did not consider the information provided, either by Mr. Basra when the suspension was imposed or in Mr. Clements' subsequent letter, that Mr. Basra was unaware that a charge had been laid. Further, there is no factual support for the opinion that Mr. Basra is unsuitable for discharging care to other persons. If the alleged offence is true, then the circumstances involve one female, and there are no female inmates at Matsqui Institution.\n\nIn a July 7, 2006 email, Ms. Mynott advised Mr. Brown (Exhibit E-15) that \". . . [t]his would be a good time to review Mr. Basra's suspension without pay, considering the recent information provided by the investigators. . . . \" The only new information provided by the investigators as of July 7, 2006, was that they had attended court and had unsuccessfully requested information from the RCMP and that Mr. Basra had not contacted them. The investigators recommended that the suspension be maintained.\n\nAt the hearing, Mr. Brown indicated that he would reassess the risk of Mr. Basra working at Matsqui Institution every two or three weeks based on any new information received. He also confirmed that he had not made a disciplinary decision.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-19", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "para 54", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Brown described his consideration of the Larson criteria. He said that the CSC looked at the substance of the allegation, a sexual assault in November 2004 and a protracted investigation resulting in the Crown counsel approving and laying a charge 18 months later. Mr. Brown said that another substantive factor was that Mr. Basra did not cooperate with the police. It appears that for a portion of the investigation, Mr. Basra provided a false name and that certain facts were refuted or denied in the face of the physical evidence against him. Mr. Brown was concerned that the police were concerned about a lack of cooperation and forthrightness. Although Mr. Basra was detained as a result of the investigation in 2004, and he retained a lawyer, he did not inform anyone in authority at the CSC about his involvement. Mr. Brown said that in a strict sense, employees may only need to advise the CSC when charges are laid, as officers in the criminal justice system are held to a higher level of accountability and are bound by a higher standard of forthrightness to disclose those kinds of developments. In other cases, officers have come forward with information allowing the CSC to make a comprehensive and balanced risk assessment.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-20", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 55–56", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Brown said that there were a number of risks in ending Mr. Basra's suspension, including risks to the CSC, its operations and its integrity. Mr. Brown said that the charge laid against Mr. Basra had the potential to impact CSC relationships and that this could create a safety issue for Mr. Basra. Mr. Brown said that it could be problematic for Mr. Basra to work constructively with inmates, fulfill his duties of open and honest communication and be considered a role model. Mr. Brown said that the charge laid against Mr. Basra could impact staff members, since the allegations have a predatory and deceptive aspect and 30% of Matsqui Institution staff are women. Men and women work alone on posts; correctional officers have to work closely and need to rely on each other's character.\n\nMr. Brown said that justice system clientele have a significant history of victimization. Female visitors often come from backgrounds similar to inmates and have often been subjected to sexual assaults in the past, and they should be able to enter through the front gate knowing that they are safe.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-21", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 57–59", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Brown said that the CSC was concerned about its integrity. The purpose of the CSC is to protect the public; the CSC performs that task mainly through risk management. Risk assessments are not scientific, but involve looking at the facts and making informed decisions. Mr. Brown said that the legislation allows for the exchange of information among law enforcement agencies and that the relationship between those agencies is sensitive. Information exchanged may depend on the confidence one agency has with another. An agency such as the RCMP may view correctional officers such as Mr. Basra as being evasive and deceptive, which may in turn affect its perception of the CSC's ability to do business with it.\n\nMr. Brown said that the CSC's reputation is affected when correctional officers act in an exploitative manner and are not prepared to fully explain or account for their behaviour. The CSC suffers real damage from such behaviour.\n\nMr. Brown said that he considered whether Mr. Basra could work elsewhere at the CSC. The CSC has 1600 or more employees working in institutional offices, community offices and administrative offices in the Pacific Region. The risks of transferring Mr. Basra somewhere else in the Pacific Region were still unacceptable. Matsqui Institution is co-located with a women's facility and a regional treatment centre. Minimum-security female inmates are given assignments outside the fence and are able to walk around. It seemed inappropriate to assign Mr. Basra to work outside the fence. Even if Mr. Basra were to be placed into an administrative setting he would still be required to deal with inmates and other persons who were victimized or who are recovering from victimization; Matsqui Institution should be a safe place for them.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-22", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 60–64", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Brown said that in virtually every operation or task within the CSC, people have access to information. Mr. Brown said that this is a key part of the business and that having trust in the correctional officers' integrity is important. It is important to safeguard electronic access to information.\n\nMr. Brown said that when he looked at how the case developed, and even though Mr. Basra had been a fine employee up to that point, he was concerned that the CSC had not been informed earlier of the November 2004 incident, that police communications were problematic and that there was a very serious trust issue.\n\nMr. Brown said that when he looked at the general context in which the CSC operates, Mr. Basra's continued employment was not acceptable.\n\nIn cross-examination, Mr. Brown admitted that he was not aware who Mr. Basra's supervisor was or of the names of the crew with whom Mr. Basra works. Mr. Brown is aware that Mr. Basra had a role on the executive of his bargaining agent at one point. After reviewing documents put to him in cross-examination, Mr. Brown admitted that Mr. Basra is a good employee who has a better than average attendance at work. The respondent admitted that Mr. Basra does not have a disciplinary record.\n\nMr. Brown admitted that the only documents received from the Crown counsel and the RCMP where those that he had initially received. He indicated that it is often difficult to decide whether to release information due to privacy legislation and protocols between agencies. There was, however, no explanation given explaining the particular problems faced by the investigators. There was apparently some informal contact between a police officer and the investigators. Mr. Brown also conceded that it is within one's legal rights to refuse to provide a DNA sample.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-23", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 65–68", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Brown does not recall signing any document extending the time for the disciplinary investigation. Mr. Brown indicated that the usual process during an investigation is to request that the employee attend an interview and that a time, date and place are set for it. It is also clear that Mr. Brown never considered Mr. Basra's performance in the context of his decision to continue the suspension.\n\nAs Mr. Scott was not called as a witness, and there are no records confirming that he reviewed Mr. Basra's record, I find as a fact that Mr. Scott did not consider Mr. Basra's record while deciding to impose the suspension. Mr. Brown admitted that while CX-01s are peace officers, by policy they are limited in the exercise of their powers of arrest and use of force. Generally, there has to be approval from a supervisor before a CX-01 can exercise the power of arrest.\n\nMr. Brown conceded that a CX-01 would not necessarily have access to inmate information exchanged between the RCMP and the Internal Prevention and Security Office (\"the IPSO\"). The personal files of inmates are kept in a locked file room and a CX-01 would not have access to it. As a CX-01, Mr. Basra would not have access to the electronic Offender Management System (\"the OMS\"). Very few CX-01s at Matsqui Institution have access to the OMS. Access can be removed by Mr. Brown. The protection of inmates' information is taken very seriously.\n\nGenerally, security information observed by a CX-01 is reported to the Correctional Supervisor (CX-02), who then reports the information to the IPSO.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-24", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 69–72", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "It appears from Mr. Brown's evidence on cross-examination that there would be no opportunity for Mr. Basra, while on mobile patrol, to have unsupervised access to female inmates from the Fraser Valley Institution, which is located near Matsqui Institution. There is infrequent access between drivers of other vehicles and CX-01s on mobile patrol. If Mr. Basra worked a graveyard shift, there would be no opportunity for him to have contact with female visitors or staff. Mr. Basra has frequently worked an armed post, but there has never been an incident involving inappropriate use of a firearm. Mr. Brown admitted that there was no risk of Mr. Basra assaulting a staff member with a firearm.\n\nAll correctional officers carry a radio or personal alarm device and may have access to a fixed-point alarm. Inmates are confined in their cells between 23:00 and 07:00. During those hours inmates are allowed out a maximum of two at a time on the living units to use washrooms. Between 06:00 and 07:00, a small number of inmates are let out as they are scheduled to help in the kitchen.\n\nDuring Mr. Brown's cross-examination, a chronology of events was filed as Exhibit G-6. Mr. Brown did not prepare that document and only saw it a week before the hearing. The respondent did not call the person who prepared the document and it does not appear to be complete, so I place no reliance on it.\n\nAt present, there is a correctional officer working at Matsqui Institution in an armed perimeter post who is being investigated for sexual assault but who has not yet been charged. As Mr. Brown put it, there is no evidentiary test of the Crown counsel approving the charge. I note that the test used by the Crown counsel in approving charges is not before me in evidence.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-25", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 73–76", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Brown has a concern that a date-rape drug was used by Mr. Basra. However, Mr. Brown admits that there is no laboratory proof of this, and no allegation of a date-rape drug was made in the Crown counsel's letter to him.\n\nMr. Brown admitted in cross-examination that he is aware of no publicity or media attention related to this case.\n\nMr. Basra did not give evidence but called Bill Virk, Sherry Enns and Gaelen Joe as witnesses. Mr. Virk is a CX-01 who has acted as a CX-02 at Matsqui Institution. He has been employed there since 1999. He testified that there are a number of posts worked by CX-01s at Matsqui Institution that involve limited interaction with members of the public or the RCMP. He has worked all of those posts and has first-hand experience.\n\nOne of those posts is a motorized patrol. The duties are set out in \"Security Post Instruction S.P.I. 831.17\" (Exhibit G-24). There are two motorized patrols, and the post operates 24 hours per day, 7 days per week. The CX-01 staffing the post is armed. The main duties are to observe and provide security for the perimeter of Matsqui Institution by driving around outside the perimeter. The main purpose is to stop inmates from escaping. There is no contact with inmates, unless they are escaping. The CX-01 working at this post does not work in the rehabilitation of inmates. The motorized patrol has no contact with female inmates at the nearby Fraser Valley Institution. It is possible for Central Control to monitor the activities of the motorized patrol. I was asked by the parties not to reveal the details of security at Matsqui Institution, and I have not provided that information in this decision.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-26", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 77–78", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Virk has also worked the Central Control Post. The duties are set out in \"Security Post Instruction S.P.I. 831.06\" (Exhibit G-22). This is also known as the count desk. The CX-01 operating this post is under the direction of a CX-02. The main duties are opening and closing unit barriers, opening cells doors and obtaining and receiving identification cards that permit an inmate to move to the Visits and Correspondence Centre. There is minimal contact with inmates. There is no contact with members of the public or inmate visitors. The main concern of the CX-01 in this position is monitoring an inmate's location. There is limited opportunity to influence or interact with inmates.\n\nMr. Virk has also worked the Living Unit Control Post. The duties for this position are set out in \"Security Post Instruction S.P.I. 831.08\" (Exhibit G-23). This generally involves work in the \"bubble\" and there is a limited amount of interaction with inmates. A typical type of interaction is \"Hey boss, open the door, door 27.\" The CX-01 opens the doors and barriers on each of the ranges. The interaction is limited to responding to an inmate's request to open a door. The CX-01 also provides visual security from the \"bubble\" for the CX-02s who do range walks. The CX-01 has very limited interaction with inmates because there is an inmate \"code\" and they do not willingly share information or interact with correctional officers. From 23:00 to 07:00, the role is limited to letting two inmates at a time out of those cells that are not equipped with toilets. The CX-01 does rounds when the inmates are locked in their cells, five times per day. Contact with inmates is limited.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-27", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 79–81", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "No CX-01 has unrestricted access to inmate files located in the IPSO. A correctional officer at the CX-01 group and level does not have an inmate caseload. A CX-01 does not have access to the RADAR system, which requires an account code, an access code and a security code. Generally, it is only IPSO officers who have access to it.\n\nMr. Virk has also worked as a living unit coordinator. The duties for this position are set out in \"Security Post Instruction S.P.I. 831.09\" (Exhibit G-24). This is a midnight-shift position. The main job duties are working from the \"bubble\" and controlling access for the CX-01s who work in the range doing two counts, which involves walking around the range and counting inmates in cells. The coordinator has no contact with the inmates.\n\nMr. Virk testified that CX-01s who work the graveyard shift in the Special Containment Unit have no contact with inmates. The CX-01 works from the \"bubble\" and provides visual security for the CX-02, who interacts with the inmates by ensuring that they have showers and get exercise in the yard. There is no contact with the inmates and no contact with the inmate visitors.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-28", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 82–83", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Virk has known Mr. Basra since they both began working at the CSC, which was at about the same time. He has worked on the same crew as Mr. Basra for three or four years. Mr. Virk says that Mr. Basra performs all aspects of the job, and he has full confidence in Mr. Basra. He described Mr. Basra as an average guy who does his work with no complaints from anybody. He treats the female staff with respect. To Mr. Virk's knowledge, Mr. Basra has had no inappropriate dealings with any staff or visitors. Mr. Virk testified that many of the CX-01s eat at their post and do not go to the staff lunchroom to take their breaks, and therefore there is often limited exposure to persons other than correctional officers during a shift. He confirmed that CX-01s can be moved to different duties while on a shift. The tenure of this evidence is that a CX-01 has limited exposure to females, other than other correctional officers during a shift.\n\nMs. Enns, a CX-02, testified on behalf of Mr. Basra. As well as working at Matsqui Institution she is Local President of the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, Mr. Basra's bargaining agent. She testified that in her experience when the CSC wishes to talk to an employee about a disciplinary matter, it sends the employee a letter and also sends a copy to the bargaining agent. The CSC usually gives 48 hours' notice, and sets a time, date and place for a meeting. Other than grievance meetings, Ms. Enns is not aware of any investigation or disciplinary meetings called by the CSC concerning Mr. Basra in which the bargaining agent was asked to participate; she is only aware of grievance meetings.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-29", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 84–87", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Ms. Enns has worked with Mr. Basra and is familiar with his work. She characterizes him as an excellent officer. She is aware of the allegation against him and has never felt threatened by him.\n\nMr. Basra also called Mr. Joe, a CX-02, as a witness. Mr. Joe was the grievance officer who handled Mr. Basra's grievance. He was present at a meeting where Mr. Basra's bargaining agent representative put forward a number of options for Mr. Basra's placement, including working the graveyard shift, working at the regional supply depot or transferring to another institution.\n\nIt appears that it will be many months before the criminal charge will be finally dealt with by the Courts. By the time of the adjudication hearing, seven months had passed, and there was no evidence that a date for a preliminary inquiry had been set.\n\nThe respondent said that suspending Mr. Basra indefinitely was an appropriate administrative decision. The respondent said that in considering the peculiar facts of the case, an indefinite suspension is justified. The respondent relied on the criteria set out in Larson. In Larson, the adjudicator relied upon the approach in Ontario Jockey Club v. Mutuel Employees' Association, Service Employees' International Union, Local 528 (1977), 17 L.A.C (2d) 176, and Hamilton Regional Cancer Centre v. Canadian Union of Public Employees, Local 3566 (2000), 91 L.A.C. (4th) 333. In Larson, the adjudicator quoted and relied on the Ontario Jockey Club test.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-30", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 88–89", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The CSC assessed the facts and determined that Mr. Basra's presence presented a reasonably serious and immediate risk to its legitimate concerns. The CSC is part of the criminal justice system. A sexual assault charge is serious and these allegations include predatory and coercive conduct. This could have a reasonable impact on the CSC's integrity. Mr. Basra is a peace officer and has to be held to a higher standard. Given that there was a police investigation, the respondent has a lesser burden. Many attempts were made to contact Mr. Basra, and he did not respond. The CSC continued to assess the risk.\n\nMr. Basra said that he was suspended in April 2006 and that the respondent will not reinstate him without a ruling from an adjudicator. The CSC has not respected the test set out in Larson. Mr Basra has said in particular that his suspension is clearly disciplinary, since the CSC violated the third standard in the Larson test by failing to investigate the criminal charge to the best of its abilities in a genuine attempt to assess the risk of his continued employment. There is a balance to be struck between an employee's right to earn a living and the respondent's right to a safe and secure workplace. The assessment of risk has to be based on a \"real hardship to the employer.\" It is a test of \"quality\" and not \"quantity.\" The fact that the CSC has written a number of letters is not sufficient.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-31", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 90–92", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The CSC quickly concluded that Mr. Basra was a risk without talking to his co-workers or supervisors. The incident was well in the past and there was no indication of a risk being present. There were no complaints from either inmates or staff. No issue was raised by the RCMP about Mr. Basra remaining in the workplace. The CSC simply overreacted to the nature of the charge. There has been no media publicity impacting Matsqui Institution's reputation. The simple fact of being charged with an off-duty criminal offence is not sufficient to justify an indefinite suspension. Mr. Basra has worked with female employees and with firearms for years without any problems. The respondent has not put forward any facts to suggest that Mr. Basra is a risk to anyone in the workplace or that his presence would interrupt or interfere with the operations at Matsqui Institution. There is no immediate and certain risk based on real and tangible evidence.\n\nMr. Basra has put forward a number of placement options; it is clear that the CSC has not investigated them to the best of its ability. Mr. Basra has never been required to attend an interview, and the CSC never obtained his side of the story. The CSC's own policy is that investigations should be conducted on a timely basis and that the investigator should get the employee's side of the story. Mr. Basra says that 30 days should have been sufficient for the CSC to conduct its investigation based on its own policy.\n\nThe CSC had Mr. Basra's information for some time when the charge arose and did not consider the evidence. This clearly is a disciplinary matter. The CSC did not treat Mr. Basra fairly and in particular did not investigate in a timely manner and did not obtain his side of the story.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-32", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 93–95", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Basra relied on Blackburn v. Treasury Board (Solicitor General Canada - Correctional Service), 2003 PSSRB 49, for the proposition that an indefinite suspension pending an investigation requires that the investigation be completed in a timely manner. The CSC is required to investigate and obtain the employee's version of events, as in Clarendon Foundation (Cheshire Homes) Inc. v. Ontario Public Service Employees Union, Local 593 (1995), 50 L.A.C. (4th) 17, and Alberta v. Alberta Union of Provincial Employees (1995), 51 L.A.C. (4th) 248. Mr. Basra asks for interest under paragraph 226(1)(i) of the Act. He asks that I remain seized over the manner of the terms of his reintegration at work and of the implementation of this decision.\n\nIn reply the respondent argued that Mr. Basra has been charged with a serious indictable offence. The CSC concluded that there was a serious risk given the nature of the charge, and there is no new information that dissipates the risk. Mr. Brown's ability to investigate the offence is limited as the matter is before the courts. The investigators genuinely attempted to follow up on the proceedings. Mr. Basra must be aware that the CSC is happy to meet with him, but he has refused to do so.\n\nThe CSC will continue to assess the risk, and the respondent has not yet imposed discipline. The indefinite suspension should be maintained.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-33", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 96–98", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Basra has filed his grievance under paragraph 209(1)(b) of the Act alleging that his indefinite suspension without pay is a disciplinary action. Section 209 of the Act provides as follows: 209. (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee's satisfaction if the grievance is related to (b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;\n\nThis is a case that involves a protracted period while Mr. Basra's criminal case proceeds through the criminal court system. The respondent has argued that it has taken appropriate administrative action and says that its suspension decision is justified based on the unique facts in this case.\n\nThe respondent submitted that the suspension was an appropriate administrative measure. Although the respondent did not directly argue the point, in order for me to have jurisdiction over this grievance I must conclude that there is a disciplinary component to the decision. In this case, the respondent claims that it has yet to make a disciplinary decision concerning Mr. Basra.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-34", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 99–101", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I note that paragraph 209(1)(b) of the Act uses the words \"disciplinary action\" and not \"disciplinary decision.\" The word \"action\" is broader than \"decision\" and is a word capable of embracing the CSC's decision to appoint investigators and indefinitely suspend an employee as part of that investigation. The CSC has suspended Mr. Basra indefinitely based on an allegation of a serious wrongdoing that the CSC determined must be investigated. Clearly, the decision to suspend was part of a disciplinary process, although the CSC has not yet convened a disciplinary hearing or reached a final conclusion on discipline. The respondent's documents establish that an investigator was appointed to convene a disciplinary investigation (Exhibit E-8).\n\nAlso, an indefinite suspension prevents an employee from working. It is an interruption of the employee's right to work. In this case the disruption of work, as well as the loss of wages, are penalties; they are disciplinary actions that flow directly from the CSC's decision to convene an investigation and suspend Mr. Basra without pay: Massip v. Canada (1985), 61 N.R. 114 (F.C.A.); Lavigne v. Treasury Board (Public Works), PSSRB File Nos. 166-02-16452 to 16454, 16623, 16624 and 16650 (19881014); and Côté v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-9811 to 9813 and 10178 (19831017).\n\nFor the above reasons, it is my view that there is jurisdiction to review this indefinite suspension under paragraph 209(1)(b) of the Act. I shall now address whether the CSC's decision to suspend Mr. Basra indefinitely without pay is justified in the circumstances.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-35", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 102–105", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Employees have a right to work. It is a right that should not be lightly interfered with, and it is up to the respondent to demonstrate that a continued suspension without pay is justified. The CSC has not terminated Mr. Basra but is preventing him from earning a living. Other than penalizing Mr. Basra, it is difficult to see what benefit would accrue from a suspension until a court resolves the issue of his guilt or innocence. By the date of the adjudication hearing, more that seven months had elapsed since Mr. Basra was charged with an offence. It is now more than two years since the date of the alleged sexual assault. There is no clear indication of when Mr. Basra's case will be finally resolved by the courts. The wheels of justice appear to have moved slowly.\n\nThe main issue before me is whether an indefinite suspension is justified based on the Larson and Ontario Jockey Club criteria. Those criteria are: 104 As a starting point, I note that the burden of proof rests with the respondent and not with Mr. Basra to establish the justification for the CSC's actions. The standard is the ordinary civil standard of the balance of probabilities.\n\nAs an adjudicator, it is not my function to weigh the strength of the Crown's case, or probability of conviction, in the criminal proceedings. Indeed, it is impossible for me to weigh the strength of the Crown's case, even if it was within my mandate, because the CSC appears to have obtained so little information. I am not certain how the CSC could have come to any reasonable risk decision based on the extremely limited material before it.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-36", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "para 106", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "From the evidence before me, Mr. Basra was not aware of the criminal charge until he was suspended by the CSC. In his evidence, Mr. Brown referred to \"a strict interpretation\" of the Code of Discipline and compared Mr. Basra's attitude to a fuller disclosure position adopted by some correctional officers facing criminal charges. In my view, there is only one possible interpretation of the Code of Discipline. In it, there is a duty to disclose charges; there is no duty to disclose the possibility that a charge might be laid. The duty on the correctional officer arises on being charged, and knowing that he is charged. If the CSC wished by policy to impose a duty to disclose allegations arising before charges are laid, a duty to disclose allegations could have been articulated in the Code of Discipline. The fact that other correctional officers, who were not called to give evidence and whose situations were not fully explained in the evidence, may have taken a different approach with the CSC is irrelevant to my task.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-37", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 107–108", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I take adjudicative notice that, under the Criminal Code, sexual assault is a hybrid offence that may be charged as a summary conviction or indictable offence (subsection 271(1)). There was a substantial, unexplained delay between the date that the offence is alleged to have occurred and the date that the Crown counsel approved the criminal charge. While this offence is charged as an indictable offence, I do not know whether that decision was made by Crown counsel simply to avoid the effect of the six-month limitation period for summary conviction offences (subsection 786(2) of the Criminal Code). There is no evidence before me that explains the Crown counsel's charging process or his decision to proceed by indictment. I am not prepared to infer, in the absence of information and in light of the 18-month pre-charge delay, that the reason for proceeding by indictment was that the seriousness of the offence merited this procedural approach.\n\nThis is a serious charge regardless of the Crown counsel's choice of charging procedure. Ultimately, that choice may have a substantial impact on any disciplinary decision of the CSC concerning Mr. Basra. A conviction for an indictable offence is a ground for discipline under the Code of Discipline. That issue is not before me, since Mr. Basra has not been convicted of any offence, and the CSC has not completed its disciplinary decision-making process.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-38", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 109–110", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The Crown counsel appears to have chosen to notify the CSC and to have a warrant issued rather than notify Mr. Clements, who was monitoring the case for Mr. Basra, to ensure a voluntary court appearance by Mr. Basra. Why the Crown counsel took this approach is not explained in the evidence before me. Based on the material before me, the respondent has no case against Mr. Basra on the point of whether he went to work without informing the CSC of the charge. The evidence establishes that the CSC learned of the charge before Mr. Basra did. Deception, lack of forthrightness and lack of honesty in telling the CSC of the offence were key factors for Mr. Brown in maintaining the suspension. There is absolutely no basis in the evidence supporting such conclusions. This is particularly so as there is no duty to disclose until a charge is laid. I also note that the CSC did not schedule an interview with Mr. Basra after it learned of the charge.\n\nWhen I reviewed the authorities provided to me by both parties, it was clear that the adjudicator or arbitrator in each of those cases had substantially more information than was provided to me, and the CSC had conducted a more thorough investigation than in the present case. In most of the cases, the adjudicator heard directly from the CSC's investigator.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-39", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 111–112", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I am not satisfied that the respondent has shown under the third and fifth Larson criteria that the CSC has done its best to ascertain the facts in order to make a risk assessment concerning Mr. Basra. While Mr. Scott appointed investigators in a timely way, I am concerned that the investigation did not yield sufficiently reliable information to make a risk assessment decision. The problem seems to be with the quality of the investigation undertaken by the CSC. It seems that in terms of investigating the disciplinary matter, the investigators did little more than attend court, request information from the RCMP, which never was received, and possibly ask Mr. Clements at court to tell Mr. Basra that the investigators wished to speak to him. I use the word \"possibly\" since the investigators were not called to give evidence as to what they did or did not do.\n\nI am concerned that the investigators made no attempt to directly contact Mr. Basra to obtain his side of the story. I am not prepared to speculate as to what he may or may not have said had the CSC attempted to contact him. I put no weight on Exhibit E-14, which contains speculation by Ms. Mynott in an email to Ms. Chima that: Sometimes in case [sic] such as these lawyers advise their clients not to discussing [sic] disciplinary investigations until the court case has been completed.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-40", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 113–116", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The investigators had the power to set a meeting with Mr. Basra, advise him of the time and place of the meeting and notify him that he could bring a bargaining agent representative with him. This was never done, and no explanation was given as to why. The investigators were never called as witnesses to explain what they did. I draw an adverse inference against the respondent for failing to call the investigators to explain their investigation.\n\nMr. Basra did provide some information to Mr. Scott at the meeting where Mr. Basra was suspended. Mr. Basra also had Mr. Clements provide information as to when he became aware of the charge. Mr. Scott also informed Mr. Basra, both orally and in writing, that an investigation had commenced and that the investigators would talk to him. It appears that the investigators did not bother to contact Mr. Basra directly. They have not even reported on their findings.\n\nThis is not a case where Mr. Basra instructed the CSC not to deal with him directly but to deal with his lawyer. In my view, in the absence of this instruction, there is no duty on the CSC to deal only with the employee's lawyer.\n\nThe respondent's point is that the CSC attempted to get Mr. Basra's story by contacting Mr. Clements. This is a significant and fundamental underpinning to the respondent's case. Proof of this point rests entirely on hearsay evidence. In the emails, there is some indication that the investigators told Mr. Brown that they had contacted Mr. Clements at court. Mr. Brown believed this. The investigators were not called to give evidence of their investigation. While Mr. Brown may have believed they contacted Mr. Clements, Mr. Brown's beliefs are not proof that the investigators did in fact contact Mr. Clements.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-41", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 117–119", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The respondent argued that it was sufficient for its investigators to have spoken to Mr. Clements at a court appearance indicating that they wanted to talk to Mr. Basra and for Mr. Brown to send letters indicating that he would be willing to hear from Mr. Basra. It seems odd that Mr. Brown knew that he had to write to Mr. Basra directly to inform him that the suspension continued, rather than writing to Mr. Clements, when the respondent claimed that an attempt to talk to Mr. Clements was sufficient to discharge its investigative responsibilities concerning Mr. Basra.\n\nFrom the evidence before me, I am not prepared to conclude that Mr. Clements was anything other than a criminal lawyer retained by Mr. Basra in connection with the pending criminal charge. I am not prepared to assume that Mr. Clements was a lawyer on general retainer for Mr. Basra. He did not represent Mr. Basra in this hearing. There is no evidence before me of Mr. Clements having any involvement in this employment matter other than having written a letter on April 27, 2006, saying that he was retained for a criminal matter.\n\nHearsay evidence is admissible in an administrative law hearing. It may be used to establish what Mr. Brown considered when deciding to continue the suspension. While Mr. Brown's hearsay evidence is admissible for the \"proof of Mr. Brown's state of mind,\" I do not accept hearsay evidence to prove that Mr. Basra refused to provide evidence or information to the CSC. Particularly, this hearsay evidence contradicts other evidence that Mr. Basra did volunteer information when he met with Mr. Scott, that he was told and informed in writing that he would be contacted and that the CSC took no steps to contact him.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-42", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 120–121", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "While the rules of evidence are relaxed in an adjudication hearing under the Act, in my view it would be an adjudicative error to use hearsay evidence to prove a fundamental material fact. Some of the evidence before me is double and triple hearsay. A good example of that is an email from Ms. Tyler to Louise Costello, a staff relations advisor at National Headquarters (Exhibit 19). It purports to contain facts that are not contained in the letter from Crown counsel and that are not documented in any written investigators' report, and there is no indication where Ms. Tyler obtained her information. She was not the investigator. It is clear, however, that this cannot be first hand information. It is not reliable information that I can consider in determining whether continuation of the suspension is justified. The weight that can be attached to hearsay evidence for establishing material disputed facts is minimal, and I place no weight on the hearsay evidence for establishing facts.\n\nThe investigators do not appear to have talked to any of Mr. Basra's co-workers or supervisors. This may have been of considerable assistance in assessing the risk to Mr. Basra, other staff members, visitors and inmates and to the CSC's information system. In the course of his evidence, Mr. Brown raised the risk to the information system as a reason supporting the continued indeterminate suspension of Mr. Basra. It is difficult to understand how Mr. Basra constituted a risk given that in his position he had limited access to the CSC's information system and there is no indication that he has compromised the system in the past. There is nothing in the nature of the offence that would suggest that he presents any risk to the CSC's information system.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-43", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 122–124", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Further, I am concerned with the quality of the evidence provided by the respondent in this adjudication hearing. The respondent called Mr. Brown, who is ultimately the person responsible for running Matsqui Institution. He was absent from Matsqui Institution during critical time periods, and Mr. Scott, who was Acting Warden in Mr. Brown's absence, was not called as a witness. Mr. Brown was the one who made the decisions continuing the suspension, but he was not the one who made the original decision or investigated the facts.\n\nThe Larson test requires more than establishing the good faith of the decision maker and what the decision maker considered; there must be proof of the underlying facts used to make the decision. I would have thought that, at minimum, the respondent would have called the investigators, tendered an investigative report and either called the police officer investigating the offence or tendered the police report.\n\nThe totality of the evidence setting out the allegation is a précis or summary of a police report from a Crown counsel, along with a copy of the charge contained in the sworn information. I have the Crown counsel's characterization of the information that he reviewed to make the charging decision. I do not have the evidence before me that the Crown counsel considered in his decision to lay the charge. What I have at best is a brief description from Crown counsel, which is second hand or double hearsay because it is the Crown counsel's view of a police report. This is also combined with various emails from the investigators to Mr. Brown as to what they heard a police officer say.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-44", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 125–126", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I cannot determine on the evidence before me that the police officer to whom the investigators spoke at court or elsewhere was the police officer who investigated the criminal charge. Mr. Brown speculated that the officer was the investigating officer rather than a court liaison officer, but I cannot accept this speculation as evidence. He did not have the original police report naming the investigating police officer, and the investigating police officer is not named in the letter from Crown counsel.\n\nThere appear to be mistakes made by Mr. Brown in the facts that underlay his decision. Particularly, he seems to have incorrectly assumed that Mr. Basra was aware of the charge and failed to report it. He makes a significant issue that Mr. Basra breached a trust by failing to report the charge, yet the clear obligation in the Code of Discipline is to report a charge, not a potential charge. In this case, the charge was reported by Crown counsel to Mr. Brown before Mr. Basra knew that he had been charged. Mr. Brown seems to be under the impression that an accused person has a duty to cooperate with the police and to plead guilty. He seems to have been under the mistaken impression that Mr. Basra misled the police. Mr. Basra faces a charge of sexual assault and not obstruction of justice or public mischief.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-45", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "para 127", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I find it surprising that the CSC did not speak to Mr. Basra and his co-workers or supervisors to gather information to assist in its risk assessment. While an immediate suspension might be temporarily justified without a full investigation on an urgency argument, the CSC has had more than six months to assess the risk, and has not seen fit to obtain and consider this information. This suggests to me that the CSC was more concerned with the fact that a charge was laid, with the nature of the allegations, and with the impact on its reputation rather than assessing whether Mr. Basra presented a risk to its legitimate concerns, including the safety of Mr. Basra, co-workers, visitors or inmates, the integrity of the CSC's information system, or its liaisons with outside law enforcement agencies. While Mr. Brown alleges these problems, it is difficult to understand how he came to these conclusions based on the limited information available to him.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-46", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "para 128", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "It is difficult to accept the rationale put forward by Mr. Brown as risk assessment in light of the failure to obtain and consider a factual underpinning, as risk cannot be assessed in the abstract. The authorities make it clear that the CSC has the duty to obtain and assess information, as detailed in Larson, Ontario Jockey Club and Alberta. Since the limited information from the Crown counsel shows that Mr. Basra was arrested on the charge after it was laid, I must also conclude that Mr. Basra is on some form of judicial interim release or release by an officer-in-charge. The particulars of the release terms were not gathered by the CSC. The release terms may have been of some assistance under the Larson test in assessing risk to the CSC's legitimate concerns. The only inference available to me is that Mr. Basra is not a significant danger to members of the public, as he would otherwise have been detained in custody, rather than being left at large pending his criminal trial.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-47", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "para 129", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Basra worked at Matsqui Institution for an 18-month period after the alleged facts and before the charge was laid, with an unblemished work record. As a CX-01, he does not have unrestricted access to confidential information, he is not a liaison officer with the RCMP and he does not have unsupervised access with visitors, and many of the posts he works involve little inmate interaction. He is a guard, and is not involved in the rehabilitative work with inmates, except in a very general sense of being part of Matsqui Institution. I accept the evidence of Mr. Virk, in preference to the evidence of Mr. Brown, that inmates do not come forward to guards or CX-01s to discuss their problems. Mr. Virk is an experienced CX-01. In reviewing Mr. Brown's evidence, it is clear that he has not worked as a CX-01 at Matsqui Institution. There is no evidence that Mr. Basra deceived the police in their investigation. There is no duty on him to \"take responsibility,\" if in fact he is innocent of the offence, and he is presumed innocent until proven guilty. At best, the respondent's case is that it is a serious charge and it looks bad for the CSC to allow a correctional officer with a serious charge against him to continue working. I do not accept as credible that the police would refuse to pass on information to Matsqui Institution or to assist correctional officers, including Mr. Basra, at Matsqui Institution if called upon to do so. It was not explained in the evidence how Mr. Basra would present a risk to himself or others if he continues to work in a CX-01 position.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-48", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 130–131", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "There was clear and cogent evidence led by Mr. Basra in this case of a number of positions available to a CX-01 such that there is minimum contact with visitors, female staff and inmates. I would have expected that some of those options would be palatable to the CSC and would minimize any reasonably perceived risk. I am not satisfied that the CSC has fully or properly explored all available options. In particular, there were at least three positions available for scheduling a CX-01 in which Mr. Basra would have had no contact with visitors, female staff or inmates. Any of the evening positions would involve little contact with female staff other that correctional officers. The respondent has not produced any evidence that suggests that female correctional officers would be unwilling to work with Mr. Basra or feel that their safety would be jeopardized. I accept the evidence of Ms. Enns, an experienced CX-02, that she would not have any concerns working with Mr. Basra.\n\nThe Larson test involves the weighing of risk. In my view, given the lengthy period before the charge was laid while Mr. Basra was at Matsqui Institution, the fact that he appears to be at large on some form of release would suggest that he knows that he must be on his best behaviour if he is returned to work. There seems to be little or no risk of him committing a sexual assault in the workplace on female staff or female visitors.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-49", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "para 132", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Which legitimate concerns of the CSC need to be considered in assessing the risk? It is important to assess the nature of the CSC's business. One of the substantial concerns in Ontario Jockey Club was that the employee was charged with a gaming offence under the Criminal Code, allowing premises to be used as a common betting house. The business of the employer in that case involved gaming and it was important to the continued business status of the employer that persons connected with illegal gaming not be on its premises. In this case, the CSC is engaged on the corrections side of the justice system. Matsqui Institution is in the business of holding male inmates and protecting society from them while they work on their rehabilitation. Matsqui Institution provides an environment including programs to assist in an inmate's rehabilitation. The inmates are more \"hardcore\" criminals than one would find in a minimum-security environment. Mr. Basra's job is to guard the inmates rather than assisting in their rehabilitation. His function is security, principally static security, and it is difficult to see how his ability to perform the security function has been impacted by the criminal charge filed against him. Unlike the facts in Ontario Jockey Club, a federal penitentiary's ability to carry on its business will not be impacted by the presence of an employee accused of a criminal offence.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-50", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "para 133", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Clearly, the criminal charge that Mr. Basra faces is serious, and the manipulative aspects of the alleged offence are a concern. The safety of inmates and staff is a legitimate interest. In my view, given the 18 months during which Mr. Basra continued to work after the alleged offence occurred, there is little risk to staff or visitors. Risk is often dissipated by time: Clarendon Foundation. That Mr. Basra continues working at Matsqui Institution constitutes no risk to male inmates. Rehabilitation of inmates is an important interest; however, a CX-01 has little inmate contact and is not involved in rehabilitation. There is no evidence that there is a safety risk to a CX-01, as generally a CX-01 works in a secure post, has a radio and often has access to an alarm. The CSC's reputation is important, but one of the fundamental tenets of the justice system, of which the CSC is an important part, is the presumption of innocence. The CSC's decision presumes not only that Mr. Basra is guilty of the alleged offence but also that he deceived the CSC and the investigators. There is no basis for the conclusion that Mr. Basra deceived the CSC or the investigators, and he is entitled to be presumed innocent until he is found guilty in a court of law.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-51", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 134–135", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Although not directly argued by counsel, a point stressed by Mr. Brown in his evidence was that a suspension was necessary to ensure the integrity of the CSC's information system, and this was a risk factor that justified a continuing suspension. The integrity of the CSC's information system is important. The evidence, however, does not support this as a \"real risk.\" The evidence is that a CX-01 does not have unrestricted access to the information system. The respondent has proven no risk to the CSC's information system. Interagency cooperation is an important and legitimate concern, but it is hard to see how employing Mr. Basra while he is facing a charge will impact police providing information to the IPSO or assisting at Matsqui Institution if necessary. It is a more hypothetical or speculative concern rather than a probable risk.\n\nBased on the evidence before me, I find that the CSC was not justified in extending Mr. Basra's suspension without pay. Because of its failure to adequately investigate the facts over a lengthy period, the CSC's original administrative decision became disciplinary action against Mr. Basra: Larson.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-52", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 136–137", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I accept the approach in Larson, in which the adjudicator struggled with the length of time required for an investigation and referred to paragraph E.1(a) of \"A Guide to Staff Discipline and Non Disciplinary Demotion or Termination of Employment for Cause\" (Exhibit G-25), which provides that disciplinary action should be taken within a month of the infraction. This is the time frame set in Mr. Scott's direction to the investigators, and it seems that the CSC considered this a reasonable amount of time to investigate the case involving Mr. Basra. In this case, this one-month period ended on May 3, 2006, which would have provided ample time for the collection of information and preparation of an investigation report. It also would have been ample time for the CSC to schedule an interview with Mr. Basra or other employees in the workplace to obtain information related to its concerns.\n\nWhen the CSC makes a decision to suspend an employee pending a disciplinary investigation where criminal charges are laid for off-duty conduct, it is incumbent on the CSC to \"get on and conclude\" an investigation in a timely manner. The CSC is not automatically entitled to suspend an employee simply because of a criminal charge. To suspend an employee without pay until a criminal charge is resolved, the CSC must engage in a risk analysis based on facts collected during an investigation. A lengthy suspension can work a real injustice to an employee, particularly if the investigators do not conduct an investigation that generates a sufficient factual basis for the CSC to make a decision in a timely manner. An employee should not have to bear the wage loss impact of an investigation that is not concluded in a timely way. Mr. Basra is entitled to his pay, retroactive to May 3, 2006.", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358025-53", - "doc_type": "caselaw", - "act_code": "2007 PSLRB 70", - "act_short": "Basra (2007)", - "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", - "section": "", - "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", - "marginal_note": "paras 138–139", - "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The parties have made no submissions with respect to the rate of interest or prevailing period under paragraph 226(1)(i) of the Act. The period that I consider appropriate for the interest calculation is from May 3, 2006, to the date of Mr. Basra's reporting to work. I will retain jurisdiction for 90 days over the implementation of this decision, especially over the determination of interest on the monies owed Mr. Basra as a result of this decision if the parties are unable to agree on an appropriate interest rate and calculation of interest.\n\nFor all of the above reasons, I make the following order: 140 The grievance is upheld. Mr. Basra is ordered reinstated to his position as a CX-01 effective May 3, 2006, with back pay, full benefits and with interest. I reserve jurisdiction over the implementation of this decision for a period of 90 days. July 11, 2007. Paul Love, adjudicator", - "current_to": "2007-07-11", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" - }, - { - "id": "fpslreb-358150-1", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 1", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On November 14, 2007, Rudy Moreno Quadrini (“the complainant”) filed a complaint under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the new Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, against the Canada Revenue Agency (“the CRA”) and CRA Commissioner William V. Baker. The complainant subsequently clarified that the respondents should be identified as the CRA and R. Larry Hillier, CRA Assistant Commissioner, Ontario Region (“the respondents”).", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-2", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 2", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant outlined the particulars of his complaint as follows: Unfair labour practice under s. 185 and 186 (2) (a) (iii) & (iv) by failure to extend me a job offer like 371 other similarly affected employees as required under the Human Resources Agreement (“HRA”) between the CRA and Ontario Ministry of Revenue (“OMoR”), whether outside of it or pursuant to article 4.1 thereof by: - CTAO refusing to invite me to a Q&A session held in Whitby on 11/05/2007 while subjecting me to all other related CRA-HRA information sessions and processes such as, CRA Employee Information and Consent Form for example - Mr. Hillier refusing to acknowledge, correspond or provide any related or relevant basis or oral/written requested information/documentation to letters of 10/19/2007, 10/23/2007, 10/29/2007 and 10/31/2007 - Ms. Laurie Wallace refusing to provide relevant basis up to 10/26/2007 - Mr. Hillier’s written refusal to extend me a job offer per letter of 9/13/2007 and thus intimidating, threatening, coercing and discriminating against me among other OMoR-CTAR affected employees and delivering said letter to OMoR HR Branch allegedly outside of the HRA process - CTAO advising OMoR that no job offer forthcoming for me pre-8/30/2007 - Mr. Hillier’s refusal to extend me an introduction letter of 8/17/2007 - CTAO leaving my OMoR position scheduled on p.23 of Appendix 1 to the HRA despite contemplated and willful refusal to hire me", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-3", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 3", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The provisions of the new Act that the respondents allegedly breached read as follows: 185. In this Division, \"unfair labour practice\" means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1). 186. (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall (a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person (iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or (iv) has exercised any right under this Part or Part 2;", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-4", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 4–5", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As corrective action, the complainant sought the following from the Public Service Labour Relations Board (“the PSLRB”): An order requiring the CRA to comply with the Act and HRA to: (i) extend an offer of employment as required under the HRA to me, whom, the CRA, Mr. Hillier or any other person acting on behalf of the CRA, has refused to employ, continue to employ or otherwise discriminated against or discharged in disguise, contrary to paragraph 186 (2) (a) and the HRA, (ii) pay me, as a result the failure, any employment related compensation and benefits of any kind whatever in an amount equal to the remuneration that would, but for the failure, have been paid to me by the CRA making me whole compared to other CTAR affected OMoR employees in the context of those transferring to the CRA in the context of the HRA, and (iii) rescind the disguised disciplinary action taken against me by all the CRA’s refusals by: rescinding and retracting the letter of September 13, 2007, writing me a letter of apology from Mr. Hillier copied to OMoR including the admission of error by he and the CRA, providing any and all requested information and documentation; in respect of the failure and pay compensation in an amount equal to any financial or other penalty imposed on me by the CRA including any and all costs or legal costs incurred.\n\nThe complaint was accompanied by a five-page covering letter dated November 9, 2007, and marked “Personal & Confidential” and “Without Prejudice.” The complainant also attached 125 pages of documents to which he made footnoted references in his letter.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-5", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 6–8", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "It is unclear why the complainant marked his letter “Personal and Confidential” or considered it to be “Without Prejudice.” As the letter contains statements that are necessary to understand the nature of his complaint as well as the position that he adopted regarding the procedure for hearing his complaint, he must have intended that it form part of the official record and that it be placed before the PSLRB. As such, I believe that I am at full liberty to refer to the contents of the letter in this decision and that doing so offers no prejudice to the complainant. I have taken the same position regarding other subsequent submissions from the complainant similarly marked “Personal and Confidential” and “Without Prejudice.”\n\nIn the covering letter, the complainant restated his cause of action in the following terms: Hereby made under paragraph 190(1)(g) of the Public Service Labour Relations Act (hereafter and in accompany [sic] FORM 16 “the Act”) respecting the employer’s refusal to: employ or to continue to employ, or discriminate against with respect to employment, or intimidate, threaten and otherwise discipline the complainant; as prohibited by section 185 and more particularly, subparagraphs 186(2)(a)(iii) and (iv), contrary to Article 4.1 of its Human Resources Agreement (“HRA”) with the Ontario Ministry of Revenue (“OMoR”) under which it is required to offer a job by November 13\n\nThe complainant requested that the PSLRB proceed to determine his complaint on the basis of written submissions: … this matter is relatively straightforward such that, it is unlikely that a hearing will be necessary. I propose that it be dealt with entirely in writing and accordingly attach herewith only pertinent evidentiary documentation … to enable the PSLRB to do so. …", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-6", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 9", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to the complainant, the event that prompted him to place his case before the PSLRB was his receipt of the following letter, dated September 13, 2007, from the respondent, Mr. Hillier, on behalf of the CRA: It has come to my attention that your name has been included on the list of employees whose work is directly affected by the divestment of OMoR’s corporate tax functions to the CRA. I trust that you recall the mediation of your grievances concerning the termination of employment action taken by the CRA when it was discovered that, while you were on paid sick leave with CRA, you were reporting to a new position with the Ontario government. As a result, I must advise you that the CRA is not prepared to offer you employment. You should be aware that, in respect of our Memorandum of Agreement concerning confidentiality, the Minister of Revenue will only be informed that a letter of offer will not be forthcoming for you and we will not be providing them with any further information or details.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-7", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 10", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The following excerpts from the complainant’s covering letter of November 9, 2007, provides further explanation of, and context for, his complaint: This complaint is limited only to the CRA’s refusal to offer me a position, any benefits flowing from that position and no other matter. Specifically, it is not related to any other action I may have against the CRA or other recourse available through the OMoR with respect to any possible remedy, due diligence or remedial failure by it under Article 21 of the HRA for reasons of force majeure or otherwise. … the CRA … refuses to extend me a job offer despite my legal entitlement to it under the HRA. However, it does so entirely outside the HRA process and without providing me any basis whatsoever despite my openness and transparency with the CRA, which has been graced with nothing but silence. The HRA is an administrative agreement – negotiated under Article 6 of Annex C of a Memorandum of Understanding Concerning Administration of Ontario Corporate Taxes – further to a Master Memorandum of Agreement Concerning a Single Administration of Ontario Corporate Tax between the Governments of Canada and Ontario. Article 2.1 thereof says the CRA must comply with the Act, which therefore applies to the HRA. Based on the [wording of the CRA’s letter of September 13, 2007], the CRA’s rationale for it is the aforementioned PSLRB mediation, my grievances and its termination letter, which included prior claims allegedly supporting the termination action taken by it. However, all of this was fully and finally settled by way of mediation. Therefore, aside from any possible breaches of confidentiality and contract arising from Mr.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-8", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 10", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Hillier’s reference to my confidential MOA in issuing said letter because he is neither a party to nor a person required to implement it, I respectfully submit that the CRA’s conduct and refusal to extend me a job offer now fall squarely within subparagraphs 186(2)(a)(iii) and (iv) of the Act. No matter how wrong my past behaviour and conduct at the CRA may seem or even have been in light of its termination of me, like mine, the CRA’s prior claims are all irrelevant now due to the PSLRB mediation… I respectfully submit that this action thus constitutes disguised discipline and double jeopardy after the fact and so, estoppel would now and forever prevent the CRA from denying me a job offer based on the grounds stated in the September 13 letter. The MOA is a valid and binding settlement agreement and presents a complete bar to further action by either party to it. Ere go [sic], my position is that it is not open to the CRA to rely upon the MOA or prior claims to avoid offering me a job under any circumstances and more particularly, under the HRA. If it offered me one, the OMoR would have no concern or reason to enter into a settlement outside the HRA process with me. It is very clear that an MOA effectively, fully and finally settles all claims arising out of a matter. Furthermore, the doctrines of double jeopardy, estoppel, res judicata or issue estoppel and disguised discipline prevent the CRA from ever resurrecting the mediation of those same claims now to deny me a job offer outside the HRA process. Noteworthy, the MOA is clearly silent with respect to re-employment or the impossibility thereof. Therefore, I respectfully submit that the CRA’s tactics here clearly constitute an unfair labour practice within the meaning of sections 185 and 186 of the Act.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-9", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 10–11", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "There appears to be no relevant basis whatsoever for this letter now outside the HRA process or even in law. Therefore, the CRA’s actions are completely unwarranted given its obligation under the HRA, the finality of all claims rendered by the MOA, and my solid employer-employee relationship with the OMoR, which is the only relevant factor that should determine whether or not the CRA should offer me a job now under the HRA. [Footnotes omitted] [Emphasis in the original]\n\nIn their reply received by the PSLRB on December 5, 2007, the respondents objected to the PSLRB’s jurisdiction to hear the complaint. In the alternative, they submitted that the complaint “… does not make out a prima facie case, and further, that it should be dismissed under s. 40(2) of the PSLRA as being frivolous and vexatious.”", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-10", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 12", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The respondents elaborated their objections to jurisdiction in the following terms: … under the guise of an unfair labour practice, Mr. Quadrini is asking the Board to enforce an obligation on the CRA that he wrongly believes is contained in the HRA. The HRA was only between the two levels of government and Mr. Quadrini is not a party to the Agreement. The Board has no authority to enforce the HRA, nor any authority to require CRA to make Mr. Quadrini a job offer. … with regards to his statements that CRA’s position constitutes disciplinary action, it should be noted that Mr. Quadrini is an employee of the Ministry of Revenue for Ontario and is represented by the AMAPCEO. As such he does not have access to the PSLRB concerning disciplinary matters… Mr. Quadrini states that the CRA’s refusal to offer him a position is based on the fact that he filed a grievance concerning his termination of employment with CRA, which occurred on April 8, 2003. This grievance was referred to adjudication at the PSLRB … and led to a mediation session, which resulted in a settlement allowing Mr. Quadrini to resign from his employment with the CRA. It is the CRA’s position that full and final settlement was reached in ending the Employer/employee relationship and that to offer him a position which would have the effect of “undoing” this agreement would not be appropriate. The fact that the CRA is not offering Mr. Quadrini a position as part of the HRA is not a result of Mr. Quadrini having exercised his right to file a grievance in 2003. There is no prima facie breach of section 186 (2) (a) (iii) or (iv) of the PSLRA. Further, the complaint should be dismissed under s. 40(2) of the PSLRA as being frivolous and vexatious.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-11", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 13–14", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The PSLRB asked the complainant to provide his position in response to the respondents’ objections to jurisdiction. The PSLRB received the complainant’s submissions on January 4, 2008, as well as supplementary information that he filed on January 8 and 17, 2008.\n\nThe complainant’s submissions received by the PSLRB on January 4, 2008, consisted of a 46-page letter accompanied by several hundred pages of documents to which he made reference via numerous footnotes. As in his earlier correspondence, the complainant made many allegations against the respondents and asserted multiple breaches of statute, legal principles and process. Given the sheer volume of the complainant’s submissions, I am providing only a “snapshot” of what I take to be a number of the most relevant elements.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-12", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 15", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant alleged various “procedural defects” and makes applications as follows: The respondents violated rule 7(1) of the Public Service Labour Relations Board Regulations, SOR/2005-79, in filing their reply to a person at the PSLRB other than the Executive Director. For that reason, the PSLRB should reject their reply. Because the complainant was not given a clear indication as to how to reply to the respondents’ submissions, which was both misleading and prejudicial to him, the PSLRB should reject the respondents’ reply. The complainant’s open and forthright manner in his submissions should be contrasted with the CRA’s “collusion or conspiracy” with his current employer, the Ontario Ministry of Revenue (“the OMoR”). The respondents rely in their reply on hearsay evidence manufactured after the fact. The PSLRB should rule that evidence inadmissible. If the PSLRB proceeds by way of a hearing, it should order the respondents to produce relevant information under paragraph 40(1)(h) of the new Act that the respondents have previously denied the complainant. If it exists, which the complainant denies, information supporting the respondents’ actions against him has been withheld from him under the Access to Information Act, R.S.C., 1985, c. A-1. The complainant requests that the PSLRB exercise its power under paragraph 40(1)(j) of the new Act to assign an investigator to: … visit, view and inspect any and all relevant materials at the respondents’ premises and obtain answers to all of my questions relating to this matter including the names and personal addresses of any and all individual CRA employees involved in the decision and action against me so as to ensure that I may take appropriate recourse against them for this unlawful event.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-13", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 15", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant requests the consent of the PSLRB under section 205 of the new Act to prosecute 10 persons under sections 200 and 204 or, more generally, “… every party that [he] knows for certain has been involved in the decision and taken action against [him] …” as well as any additional names that may arise with further evidence.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-14", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 16", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On the jurisdictional objection filed by the respondents, the complainant replied that they are false and “… very egregious in both fact and law”: The respondents failed to address the complainant’s allegations concerning discriminatory treatment, intimidation and threats. Uncontested, the PSLRB must accept those allegations as proven. The complainant has status as a “person” for purpose of pursuing the complaint before the PSLRB. His status as an employee of the Ontario government is totally irrelevant. The fact that the complainant accepted another position with the OMoR since filing his complaint “… arguably under duress …” has no bearing on the complaint. While the respondents may argue that the complaint depends on the interpretation of article 4.2 of the Human Resources Agreement (“the HRA”), signed in July 2007 by the CRA and the OMoR, the real issue is the respondents’ refusal to employ the complainant. The respondents’ actions in replying to the complaint were “… obviously arbitrary, capricious and not in good faith.” Given subsection 191(3) of the new Act, the complainant’s written complaint is evidence that the alleged failure actually occurred. The prima facie [at first look] test argued by the respondents is thus met. The respondents have the onus to prove that they did not violate the new Act. In the complainants’ submission, “… it is impossible for them to discharge that burden in light of their unsupported actions, the wording of article 4.2 of the HRA and the preponderance of evidence in [the complainant’s] favour.” Given that the prima facie test has been met, it follows that the complaint cannot be described as either frivolous or vexatious.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-15", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 16", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The evidence submitted by the respondents “… was simply manufactured ex post facto [after the fact], smarts of backdating and, as such, constitutes both a sham and a camouflage.”", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-16", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 17", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Among the many other statements and allegations made by the complainant, I noted in particular the following ones: The CRA’s refusal to make an offer of employment to the complainant represents constructive dismissal and disguised discipline. The respondents have attempted to apply discipline for the same misconduct addressed in 2003, which is prohibited by the doctrines of estoppel and double jeopardy. A detailed analysis of the HRA proves the complainant’s eligibility for an offer of employment. Mr. Hillier’s behaviour, then and now, constitutes harassment and abuse of authority. The letter of September 13, 2007, was “… definitely intended to intimidate, threaten or otherwise discipline [the complainant] for grieving and mediating the termination action the CRA took against [the complainant] for the alleged misconduct that occurred in 2003 … .” “[The complainant’s] past employment relationship with the CRA is ended and is irrelevant.” There is no authority under the Canada Revenue Agency Act, S.C. 1999, c. 17,that would enable the respondents to refuse to employ the complainant in the circumstances described in his complaint. The divestment by the OMoR of its corporate tax functions to the CRA comprises successorship in labour law. As such, the PSLRB is the governing body with preferred jurisdiction in this case. Nothing precludes the new Act from prohibiting unfair labour practices against new hires. The failure of the respondents to respect the complainant’s common-law right to choose for whom he will work was an error in law that goes directly to the PSLRB’s jurisdiction, and is “… reviewable on the more exacting correctness standard.” With respect to the HRA, the complainant has the status of a “third person” even though he enjoys no privity of contract.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-17", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 17–18", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Even if the PSLRB has no authority to enforce the HRA or require the CRA to make the complainant a job offer, it does have the authority to dispense with any unfair labour practice committed by the CRA with respect to its hiring practices. The PSLRB is completely barred from interpreting the Memorandum of Agreement Concerning a Single Administration of Ontario Corporate Tax (“the MOA”). The complaint centres on the HRA and the PSLRB may construe the HRA without regard to the MOA, as if it did not exist. By referring to the MOA to support his decision, Mr. Hillier breached confidentiality and breached a contract. The respondents’ refusal to employ the complainant violates the Association of Management Administrative and Professional Crown Employees of Ontario (“the AMAPCEO”) collective agreement.\n\nIn an appendix to his submissions, the complainant lists the following “rights, entitlements and benefits” where he has suffered a loss or “differential” by virtue of the respondent’s failure to offer him a job:", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-18", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 19", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In the course of his submissions, the complainant asked to expand the grounds of his complaint to include the allegation that the respondents violated paragraph 186(2)(c) of the new Act: 186. (2) (c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from (i) testifying or otherwise participating in a proceeding under this Part or Part 2, (ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2, or (iii) making an application or filing a complaint under this Part or presenting a grievance under Part 2.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-19", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 20", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The nature and extent of the complainant’s submissions poses a substantial case management challenge. It is not unusual for a complainant or grievor to bundle many allegations together in a single action. However, the complainant has made so many statements and allegations, many of which could command an entire hearing process on their own, that he leaves the decision maker at grave risk of getting lost in the sheer volume. I can only presume that the complainant expects a considered finding for every allegation made in every part of the factual and legal terrain that he attempts to traverse. He has devoted, most evidently, enormous time and energy to the task. He must understand, however, that it is my duty to proceed in a fashion that is practical and appropriate to the nature of the matter placed before the PSLRB while safeguarding the rights to due process of both parties. In my view, that requirement demands that I focus the analysis much more narrowly, in the first instance at least, to render the task manageable and closely responsive to the central allegation of the originating complaint. For that reason, the parties were notified on January 22, 2008, on my behalf, of my intent to turn first to a fundamental preliminary issue: The Board believes, based on the written representations submitted to date, that there is no dispute about the key fact that gave rise to the complaint; i.e., that the respondent refused to employ the complainant as indicated in the respondent’s letter of September 13, 2007.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-20", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 20", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The question that the Board believes that it should determine, in the first instance, is whether the facts asserted by the complainant with respect to the employer’s refusal to employ the complainant comprise prima facie evidence of a contravention of subparagraphs 186(2)(a)(iii) and (iv) of the Act. The Board notes that it is holding in abeyance at this time the complainant’s application to the Board under section 205 of the Act for consent from the Board to prosecute as that application requires a prior finding with respect to the complaint. I gave the parties an opportunity to make further written submissions but only on the issue stated in the January 22, 2008, letter.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-21", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 21–22", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I recognize that the respondents stated more than one reason for objecting to the PSLRB’s jurisdiction to consider the complaint and that the respondents also asked in the alternative that the PSLRB dismiss the complaint as frivolous and vexatious. In my view, the question of whether the complaint on its face shows a reasonable link to the prohibitions listed in subparagraphs 186(2)(a)(iii) or (iv) of the new Act is primordial. It goes directly to jurisdiction in the very first instance. If, taking all of the facts alleged in the complaint as true, no arguable case can be made that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv), then the complaint may be dismissed for that reason alone. Other jurisdictional issues and the respondents’ alternative argument that the complaint should be dismissed as frivolous and vexatious, as well as some or all of the applications made by the complainant, may or will be before the PSLRB if the precondition of a prima facie basis for the complaint is satisfied. My decision on procedure reflects my understanding of the nature of the analysis required by the new Act, viewed in the context of the case law.\n\nThe complaint at issue alleges that the respondents committed an unfair labour practice within the meaning of section 185 of the new Act,which reads as follows: 185. In this Division, “unfair labour practice” means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-22", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 23–24", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The particulars of the complaint identified subparagraphs 186(2)(a)(iii) and (iv) of the new Act as the statutory provisions contravened by the respondents: 186. (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall (a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person (iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or (iv) has exercised any right under this Part or Part 2;\n\nSubsection 191(3) of the new Act assigns the burden of proof in an unfair labour practice complaint involving subsection 186(2): 191. (3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-23", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 25–27", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The reverse onus contemplated by subsection 191(3) of the new Act is unusual in the framework of the statute and a clear exception to the normal expectation in proceedings before the PSLRB that the party who alleges a violation must prove it. The presence of the provision strongly suggests that the legislator believed that actions arising under subsection 186(2) would involve an exceptional situation where a different approach to burden of proof would be required to level the playing field between the parties.\n\nA similar approach is found in the Canada Labour Code, R.S.C, 1985, c. L-2 (“the Code”), and may have inspired the legislator in this case. Subsection 94(3) of the Code contains a provision that broadly parallels subparagraphs 186(2)(a)(iii) and (iv) of the new Act: 94. (3) No employer or person acting on behalf of an employer shall (a) refuse to employ or to continue to employ or suspend, transfer, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment or intimidate, threaten or otherwise discipline any person, because the person (v) has made an application or filed a complaint under this Part, or\n\nAs with subsection 191(3) of the new Act, subsection 98(4) of the Code stipulates a reverse burden of proof: 98.(4) Where a complaint is made in writing pursuant to section 97 in respect of an alleged failure by an employer or any person acting on behalf of an employer to comply with subsection 94(3), the written complaint is itself evidence that such failure actually occurred and, if any party to the complaint proceedings alleges that such failure did not occur, the burden of proof thereof is on that party.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-24", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 28", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Under a strict reading of either subsection 191(3) of the new Act or subsection 98(4) of the Code, the PSLRB or the Canada Industrial Relations Board (“the CIRB”), as the case may be, must take the existence of a complaint in writing that the employer or a person acting on behalf of the employer failed to observe an identified statutory prohibition as proof that that failure did occur. The burden then shifts to the opposing party to disprove that fact.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-25", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 29", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In Wilson v. ADM Agri-industries Ltd., [2000] CIRB no. 99, the CIRB offered what I believe to be a crucial caveat. For the reverse burden of proof required by subsection 98(4) of the Code to apply, there must first be prima facie substance to the complaint. Examining a situation where it felt uncertain about the basis for an unfair labour practice complaint filed against a trade union, the CIRB summarized the approach taken under the Code in those circumstances: [13] At the start of the hearings, the Board declared that the circumstances of the complaint were somewhat vague and did not appear to constitute prima facie evidence of union activities leading to the complaint. Section 98(4) places the burden of proof on the employer. However, as the Board found in Canada Post Corporation (1983), 52 di 106; and 83 CLLC 16,047 (CLRB no. 426), “notwithstanding the burden of proof provisions of section 188(3) [now section 98(4)] of the Code, there has to be some substance to a complaint upon which a contravention of the Code can be founded. It is not enough for a complainant to throw out accusations, then sit back and rely on the inability of the other party to disprove them.” The Board has the authority to decide whether the complainant has established the required elements of a prima faciecase, before the burden of proof can be shifted to the employer. This rule was applied as well in the following decisions: CHUM Western Ltd., Radio CKVN (1974), 3 di 18 (CLRB no. 6); Radio Ste-Agathe (CJSA) Inc. (1975), 8 di 8; and 75 CLLC 16,154 (CLRB no. 39); Air Canada (1975), 11 di 5; [1975] 2 Can LRBR 193; and 75 CLLC 16,164 (CLRB no. 45); and Provost Cartage Inc. (1985), 61 di 77 (CLRB no. 517).", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-26", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 30–32", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The similarity between the relevant provisions of the new Act and the Code, in my view, provides ample justification for approaching subsection 191(3) of the new Act in the same fashion that the CIRB has interpreted subsection 98(4) of the Code. For this complaint, I believe that is both appropriate and necessary to follow that approach.\n\nIn Laplante v. Treasury Board (Department of Industry and the Communications Research Centre), 2007 PSLRB 95, the PSLRB reached a similar conclusion about the required approach in interpreting the reverse burden of proof applicable to subsection 186(2) of the new Act: [88] In conclusion, the complainant must meet a precondition for the provision on the reversal of the burden of proof to apply. Before the employer can be required to prove that it did not contravene the prohibitions, the complainant must show that one of the circumstances described in subsection 186(2) of the new Act has been met. Without proof to that effect, the complaint is inadmissible and the reversal of the burden of proof cannot be applied… .\n\nAt heart, the issue of a prima facie case here is one of common sense. Were it the case that a person could simply file a complaint stating his or her conviction that there has been a violation of subsection 186(2) of the new Act and, by doing so, trigger the legal requirement that the respondent prove the contrary, the possibilities for vexatious litigation would be substantial. An allegation of a breach of subsection 186(2) must be reasonably arguable on its face. As stated earlier, the threshold is the following: taking all of the facts alleged in the complaint as true, is there an arguable case that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv) of the new Act?", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-27", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 33", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In essence, the complainant alleged that the respondents committed an unfair labour practice when they refused to employ him because in 2003 he exercised his right to present certain grievances under the Public Service Staff Relations Act,R.S.C., 1985, c. P-35 (“the former Act”), and later referred those grievances to adjudication. When I examined the documents submitted by the complainant in support of his complaint, it was unclear, despite the detail and volume of what he wrote, whether the complaint revealed an arguable case that the respondents have contravened the prohibitions contained in subparagraphs 186(2)(a)(iii) or (iv) of the new Act. In other words, there remained an open question in my mind whether there was a prima facie case for a link between the unfair labour practice complained of and the complainant’s prior pursuit of his rights under the former Act. Only if I could be satisfied that, on its face, the complaint supported an arguable case could my analysis proceed. At that point, the reverse burden of proof required by subsection 191(3) of the new Act would come into play, presuming that the disposition of other preliminary matters led me to proceed to the merits of the complaint. If I were not satisfied that there was a prima facie case for the link, then I would have no basis to continue.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-28", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 34–35", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The respondents filed brief submissions on January 31, 2008, to the following effect: It still remains the position of the Employer that the complaint does not raise a prima facie case in respect of an alleged failure by the Employer or any person acting on behalf of the Employer to comply with subsection 186 (2) of the PSLRA. It is clear from the complaint that the basis of the Employer’s decision not to re-employ the complainant was due to his previous misconduct and is in no way related to the fact that he presented a grievance challenging the Employer’s decision to terminate his employment in 2003. The complainant is simply asking the Board to draw an inference of retaliatory conduct, which is unsupported by any alleged evidence. It is equally clear that the employer entertained his grievance and entered into a binding settlement to the mutual satisfaction of the parties. During this grievance process the bargaining agent represented the complainant. Any assertion by the complainant of retaliation by the employer on account of the complainant having exercised his rights under the Act, is nothing but pure conjecture on his part and has no basis in fact and no factual foundation has been asserted by the complainant to substantiate his complaint.\n\nThe complainant filed his submissions on February 4, 2008, styling them as a rebuttal to the respondents’ submissions of January 31, 2008.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-29", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 36", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant argued that the respondents were trying to change the basis of their argument justifying their refusal to employ him: They now attempt to change their basis yet again by relying on the alleged “previous misconduct” of January 3, 2003 versus the reasons clearly expressed in the letter itself. They do so in stark contradiction with their own arguments respecting jurisdiction, and to the prejudice of the complainant, who demolished their burden of proof in the Response. This proves that they have no real bases [sic], other than for settlors remorse and an illegal burning desire to weed out the complainant from the HRA, preempting his participation in it “outside the process” due to their perception that he is undesirable. All of this has been proven dead wrong with corroborating evidence from the OMoR, which acted as the employer’s agent with respect to the complainant under the HRA.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-30", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 37", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant reiterated his position that the respondents refused to hire him for reasons related to the grievance that he referred to adjudication in 2003: The complainant maintains the position that, among other things, the respondents were prima facie wrong to refuse to employ or continue to employ the complainant, and that there is no basis whatsoever in fact or law which would enable the respondents to do so. There simply is no conflict between the now allegedly settled MOA, and the HRA, under which the respondents were obliged to hire me under any circumstances. The alleged misconduct was settled in mediation. Therefore, in light of the finality of past events, it is not open to the employer to refuse to employ me or continue to employ me based on the mediation. As the prima facie case is clear on its face, the complainant reiterates his request of the PSLRB to confirm the complaint now under section 41 …", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-31", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 38", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant criticized the respondents’ use of the term “re-employ” in their submissions: Furthermore, misstating the issue as, “… the Employer’s refusal to re-employ …” me, when my Complaint, Response and the PSLRB’s letter stated that it was, “. . . the employer’s refusal to employ … .” me, is yet another disrespectful attempt to distract the PSLRB’s attention from the real facts asserted. The facts supporting the Complaint/Response have only dealt with the respondents’ refusal to employ or refusal to continue to employ not “re-employ” me. Paragraph 186(2) (a) clearly does not contain the word “re-employ” and therefore, must be construed in the appropriate context. In light of the AMAPCEO Collective Agreement, the mechanics of the HRA and the common law, that context completely ignores any previous employment relationship with the CRA and as such, the complainant must be viewed as a new hire like all other OMoR employees. Apart from me characterizing in both the Complaint and Response the terms and conditions of the MOA, which in no way precludes my re-employment and is irrelevant anyway, there was never any fact/issue asserted concerning any “re-employment”. This is because on the OMoR’s transfer of its tax administration, the respondents’ simply assumed the role of the OMoR as the employer in its employer-employee relationship with me, qua employee. Hence, there still is no fact or issue of “re-employment” as there might be if, for example, I were to voluntarily reapply to the CRA. This is because the OMoR’s divestment transferred me involuntarily.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-32", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 39", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant appears to have offered the core of his argument concerning jurisdiction in the following passage: … Although the respondents seem to have conceded to the PSLRB’s jurisdiction to hear the complaint, they willfully ignore that a prima facie case is deemed to have been met by virtue of the complaint having been made unless they can refute it. However, they willfully misconstrue subsection 191(3) of the Act in failing to acknowledge that it is their burden to prove the alleged failure did not occur. Whether or not such refusal by the employer or any person acting on its behalf was due to my previously alleged misconduct, (which, again, for the reasons previously provided is irrelevant but expressly denied), the September 13th letter, by its own wording, speaks for itself. Any onus I had, (which, again, is expressly denied), has already been met. If all that is necessary for the respondents to refuse to employ me is an employment related reason, (which, under my particular circumstances is expressly denied), the respondents have not refuted my proof demonstrating bad faith, sham or camouflage on their part. Clearly, the rights that the employer purported to have by issuing the said letter do not exist in law and as such, its refusal to employ me was clearly a sham. I follows that any continuance of its refusal in illegal circumstances obviously constitutes both bad faith and camouflage. It is well-settled that there is no defense for ignorance of or any shield for flagrant disregard of the law. Therefore, the employer should simply say, “Uncle”. … the issue before the PSLRB now is the employer’s refusal to honour my rights under the HRA to employ or continue to employ me, not whether the terms of the MOA fail to be upheld or not by virtue of the HRA.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-33", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 39–42", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "While I have already proven that the PSLRB has no jurisdiction to determine whether the MOA would be unfulfilled due to the HRA, the respondents have essentially asked the PSLRB to enforce the MOA entirely out of context while apparently relying on PSLRB decisions that support my position not theirs. Vexatious, a cost award to me is thus warranted.\n\nIn the course of his submissions, the complainant requested that the PSLRB exercise its powers under paragraph 40(1)(h) of the new Act to compel the OMoR to provide certain “evidence” that he had previously sought in a “fruitless” request under the provincial Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.\n\nThe complainant also included in his submissions a number of documents that he received from the CRA in January 2008 after filing an Access to Information request. Because some of the content of certain documents had been redacted by the CRA, the complainant requested that the PSLRB compel the respondents to provide the original version of all of the documents without the redactions.\n\nFinally, based on “new information,” the complainant submitted forms requesting the PSLRB’s consent to prosecute a further 30 named individuals.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-34", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 43–45", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The prohibitions expressed in subparagraphs 186(2)(a)(iii) and (iv) of the new Act are a vital element of the statutory regime: 186. (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall (a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person (iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or (iv) has exercised any right under this Part or Part 2;\n\nA substantially similar prohibition formed part of the former Act: 8. (2) Subject to subsection (3), no person shall (a) refuse to employ, to continue to employ, or otherwise discriminate against any person in regard to employment or to any term or condition of employment, because the person is a member of an employee organization or was or is exercising any right under this Act;\n\nIt has been and continues to be fundamental to the integrity of the labour relations systems created by the new Act and the former Act that persons who have exercised rights accorded to them under those laws did so, and can continue to do so, without fear of reprisal. Were it otherwise, given the possibility of the misuse of authority in the relationship between individual persons and employers, the chilling effect of reprisal action on the exercise of vested statutory rights could undermine the effective force of those rights.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-35", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 46–48", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In the new Act, the scope of action prohibited as a reprisal has been expansively expressed in the wording of subparagraphs 186(2)(a)(iii) and (iv). It includes a “refus[al] to employ or to continue to employ … or otherwise discriminate” against any person or to “intimidate, threaten, or otherwise discipline” any person for having presented a grievance or for having exercised any other rights under Parts 1 or 2 of the new Act.\n\nThe concept of reprisal, in my view, establishes the fundamental context within which an unfair labour practice complaint of this type must be considered. The complainant in this case effectively contends that he was the subject of reprisal action within the meaning of subparagraphs 186(2)(a)(iii) and (iv) of the new Act. The form of the reprisal action argued by the complainant was the respondents’ refusal “to employ or to continue to employ” him. The purported reason for that action was that he presented a grievance during an earlier period of employment with the (then) Canada Customs and Revenue Agency (“the CCRA”), now the CRA, and referred that grievance to adjudication.\n\nI am led, then, to refine the preliminary issue before the PSLRB as follows: does the complaint show a prima facie case for of a link between the respondents’ decision not to employ or to continue to employ the complainant in 2007 — the alleged reprisal action — and the complainant’s exercise several years earlier, while an employee of the CCRA, of the right to grieve and to refer that grievance to adjudication? As I have ruled above, the complaint must reveal an arguable case as a precondition to my accepting jurisdiction to hear the complaint and before the reverse burden of proof requirement under subsection 191(3) of the new Act can come into play.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-36", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 49–50", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Despite the volume of information offered by the complainant, I believe that the essential facts relevant to my determination are relatively limited. While an employee of the CCRA, the complainant submitted two grievances and subsequently referred them to adjudication under the former Act. The complainant resigned from employment with the CCRA in October 2004 after settling his grievances in mediation. At the time he filed his complaint, the complainant was an employee of the OMoR, working in its corporate tax division. Subsequent to his taking up employment with the OMoR, the governments of Canada and Ontario entered into the MOA to provide a single administration of the federal and provincial corporate tax administration functions in Ontario. As part of implementing the MOA, the CRA and the OMoR signed the HRA which transfered the incumbents of affected OMoR corporate tax positions to the CRA. The complainant’s name was apparently placed on a list of employees to be transferred. The respondents later claimed that his name appeared on the list in error. By his letter of September 13, 2007, respondent Hillier, on behalf of the CRA, notified the complainant that the CRA was not prepared to offer him employment despite the presence of his name on the aforementioned list.\n\nThe complainant, for his part, considered the “… failure to extend [him] a job offer like 371 other similarly affected employees as required under the Human Resources Agreement (‘HRA’) between the CRA and Ontario Ministry of Revenue (‘OMoR’) …” to be an unfair labour practice within the meaning of subparagraphs 186(2)(a)(iii) and (iv) of the new Act and filed this complaint accordingly.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-37", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 51–52", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Applying the prima facie test mentioned earlier, I must assess whether, taking the facts alleged by the complainant as true, there is an arguable case that the respondents have contravened the prohibitions contained in subparagraphs 186(2)(a)(iii) or (iv) of the new Act. To be clear, the test at this stage is not whether I believe that such a contravention actually occurred. It is not whether I am persuaded that it is more likely, as argued by the respondents, that their decision not to employ the complainant was based on the complainant’s purported misconduct. Rather, the test is whether an arguable case can be made for a link between the complainant’s exercise of rights under the former Act and the respondents’ decision not to employ him in 2007, if I accept all of the facts alleged by the complainant to be true.\n\nIn conducting the required assessment, I am cognizant that, if I have any doubt what the facts, assumed to be true, reveal, I must err on the side of finding that there is an arguable case for the required link and thus preserve the complainant’s opportunity to have his complaint heard in a proceeding that respects the reverse burden of proof requirement under subsection 191(3) of the new Act.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-38", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 53–55", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "My assessment leads me to the conclusion that it is at least possible that the respondents declined to hire the complainant in 2007 because of his exercise of rights under the former Act. While there may well be different and more probable explanations for the sequence of events alleged to have occurred by the complainant, I am unable to conclude that there is no reasonable way to argue a theory of the case linking the respondents’ letter of September 13, 2007, to the complainant’s past exercise of the right to grieve and to refer his grievance to adjudication. On that basis, I am compelled to find that the complaint reveals an arguable case that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv) of the new Act. Whether a contravention of these provisions really occurred will have to be determined on the basis of the formal evidence that the parties will present on the merits.\n\nHaving found that, on its face, the complaint reveals an arguable case that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv) of the new Act, the onus now falls on them, pursuant to subsection 191(3), to establish on a balance of probabilities that their decision to refuse to employ or re-employ the complainant was not motivated by the fact that he presented a grievance and referred it to adjudication.\n\nAt this point, I wish to make two further comments on the submissions of the complainant in the hope that they will assist to clarify the focus of a future hearing. These comments should not be interpreted as formal rulings.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-39", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 56–58", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant appears in the following statement to allege that the respondents exhibited an “anti-union animus” and that they imposed discipline in disguise: … that the respondents’ reasons were the alleged conflict of interest and their anti-union animus. They have essentially attempted to apply disguised discipline for the same perceived misconduct, which is prohibited by the doctrines of estoppel and double jeopardy.\n\nThe issue of anti-union animus arises under a different provision of the new Act, subparagraph 186(2)(a)(i). Subparagraphs 186(2)(a)(iii) and (iv), on which the originating complainant does rely, do not address motives related to union status or membership.\n\nThe complainant later submitted that “… [Mr. Hillier’s] letter was meant to remind and advise me that despite my clear right to receive an offer under the HRA, Mr. Hillier (and maybe others at the CRA) do not want me back there.” I do not believe that the determination that I must make on the merits requires that I interpret the HRA, or the MOA, or, before so doing, determine whether the PSLRB has jurisdiction to make any finding based on what those agreements may have required in the circumstances faced by the complainant.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-40", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 59", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In his reply submissions of January 4, 2008, the complainant asked to expand the grounds of his complaint to include the allegation that the respondents violated paragraph 186(2)(c) of the new Act that reads as follows: 186. (2) (c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from (i) testifying or otherwise participating in a proceeding under this Part or Part 2, (ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2, or (iii) making an application or filing a complaint under this Part or presenting a grievance under Part 2.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-41", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "para 60", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant offered the following rationale: … although my Complaint was not initially based on subparagraph 186(2) (c) of the Act, I request your permission now to invoke it due to the very intimidating evidence involving the OMoR, my current employer, attached to the respondents’ Reply. If short of conspiracy, the exchange of information and transactions occurring between the CRA and OMoR concerning me without my involvement, consent or knowledge is indeed very threatening. Perhaps, the OMoR may now be said to be “acting on behalf of the employer” respondents within the context of the preamble to subsection 186 (2). In my view, the parties have ignored Article 1.2.5 while exploiting Article 1.2.4 of the HRA. My fear of reprisal from the OMoR, potential job loss and the resulting financial penalty, which I may suffer by continuing with this matter, has become very real and compelling indeed. For example, the parties’ purported use of the dispute resolution clause to amend the Appendix to the HRA as a sword against me after I’d requested that it be used to require the CRA to honour its obligation to offer me a job as a shield to protect me causes me very serious concern indeed. [Footnotes omitted]", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-42", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 61–63", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I have examined the documents attached to the respondents’ reply of December 5, 2007, the purportedly “intimidating evidence” on which the complainant based his allegation. They consist of the following: (i) a November 9, 2007, letter from an OMoR official stating, among other things, that “… Mr. Quadrini should have been excluded from the HRA job offer list based on the understanding between CRA and OMoR and that he would not be offered a job …”; and (ii) a November 27, 2007, letter from the Ontario Commissioner of Revenue to the President of the AMAPCEO confirming the placement of the complainant in an alternate position in the OMoR after his removal from the “Corporations Tax directly-impacted list.”\n\nI cannot find anything in these two letters, or anywhere else in the documentation, that reveals an arguable case that the respondents have sought to compel the complainant to refrain “… from becoming or to cease to be a member, officer or representative of an employee organization.” Nothing relates to the possibility of the complainant (1) having been refrained from testifying or otherwise participating in this complaint procedure under the new Act, (2) from making a disclosure, or (3) from making an application or complaint under Part 1 of the new Act.\n\nTo the extent that there might be any possible substance to the complainant’s allegation, which I believe to be problematic, the primary target of his concerns, by his own omission, is the OMoR. The OMoR is not a respondent in this complaint, nor has the complainant offered any credible basis for his suggestion that the OMoR can be considered to have “… acted on behalf …” of the respondents.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-43", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 64–67", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Applying here again the prima facie test mentioned earlier, I am not satisfied that, taking the alleged facts as true, there is an arguable case that the respondents have contravened the prohibitions contained in paragraph 186(2)(c) of the new Act. For that reason, I am denying the complainant’s request to expand his complaint.\n\nThe complainant to date has requested the PSLRB’s consent to prosecute 40 named individuals under section 205 of the new Act: 205. A prosecution for an offence under this Division may be instituted only with the consent of the Board.\n\nAs I have denied the complainant’s request to add a new ground to his complaint, and as it remains to be determined whether the respondents contravened the prohibitions contained in subparagraphs 186(2)(a)(iii) or (iv) of the new Act, I rule that the applications for consent to prosecute are premature. They will, therefore, be returned to the complainant.\n\nI would like to point out that, to the best of my knowledge, there have been no other proceedings before the PSLRB under section 205 of the new Act since it came into force on April 1, 2005. Under the former Act, applications for consent to prosecute under a similar provision (its section 107) were exceedingly rare and almost all involved situations where it was alleged that employees participated in an illegal strike.", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358150-44", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 37", - "act_short": "Quadrini", - "act_name": "Quadrini v. Canada Revenue Agency and Hillier", - "section": "", - "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", - "marginal_note": "paras 68–74", - "heading": "Unfair labour practice and freedom of expression in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "It is entirely appropriate, in my view, that the PSLRB view the very few consent-to-prosecute requests that come before it as extremely serious and exceptional applications. Section 205 of the new Act is not a provision that should be invoked lightly given the possibility of extraordinary legal consequences for those persons against whom prosecutions are proposed. I have no clear sense in the case before the PSLRB that the complainant appreciated the PSLRB’s very limited case law in this area. It may be that he believed that it is relatively routine practice to invoke section 205 when making an unfair labour practice complaint. If so, it is a practice that should be discouraged.\n\nThere is no need or reason to consider at this time any of the other claims or applications that the complainant advanced in the course of his several submissions.\n\nFor all of the above reasons, the PSLRB makes the following order:\n\nThe respondents’ objection to my jurisdiction to consider the complaint under subparagraphs 186(2)(a)(iii) and (iv) of the new Act is dismissed.\n\nA hearing will be convened for the purpose of assessing whether the complainants have contravened the prohibitions contained in these provisions. The respondents will bear the onus of disproving the complainant’s allegation on a balance of probabilities.\n\nThe complainant’s request to expand the complaint to include an allegation that the respondents violated paragraph 186(2)(c) of the new Act is denied.\n\nThe complainant’s requests for the PSLRB’s consent to prosecute will be returned to him. May 28, 2008. Dan Butler, Board Member", - "current_to": "2008-05-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" - }, - { - "id": "fpslreb-358180-1", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 1–4", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor, Michael Pepper, is a systems electronic technician with the Fleet Maintenance Facility at Cape Scott, Nova Scotia, in the underwater marine weapons maintenance shop. He is a marine electrician by trade. He commenced working at the Department of National Defence (‘‘the employer’’) as an apprentice on June 20, 1977, and was appointed indeterminately on April 27, 1981. He completed training as an electronic technician in 1988 and was appointed as a systems electronic technician (SR-EEW-10) in November 1989 and then to the next highest level (SR-EEW-11) in March 1999. He is a member of the Federal Government Dockyard Trades and Labour Council East (‘‘the bargaining agent’’).\n\nOn June 30, 2006, the grievor’s employment was terminated pursuant to section 11(2)(g) (now 12(1)(e)) of the Financial Administration Act, due to his inability to attend work for medical reasons. The termination was effective July 14, 2006. The grievor had been absent from work since 1999.\n\nThis adjudication concerns two grievances. The first grievance, dated January 16, 2002, alleges that management mistreated the grievor to the point of causing him to become ill and unable to perform his duties (“the harassment grievance”) (PSSRB File No. 166-02-31912). The second grievance, dated July 16, 2006, alleges that the termination of the grievor’s employment was illegal (PSLRB File No. 566-02-767).\n\nMediation efforts between September 11, 2003, and March 17, 2006, concerning the grievor’s first grievance were unsuccessful. The employer’s decision to dismiss the grievor followed discussions engaged in during the mediation process.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-2", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 5–8", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On April 4, 2007, the employer objected to the Board’s jurisdiction over the reference to adjudication of the first grievance on the basis of timeliness because the grievance was filed five years after the beginning of the alleged mistreatment (PSLRB File No. 568-02-154).\n\nAt the commencement of the hearing, the employer conceded that the timeliness of the first grievance had been waived during the course of the grievance process and withdrew its objection. The employer, however, maintained its objection to the Board’s jurisdiction to decide the reference to adjudication of the same grievance, based on subsection 92(1) of the Public Service Staff Relations Act (‘‘PSSRA’’), as it applied at the time the grievance was filed.\n\nAfter hearing counsel’s arguments and considering the written submissions filed by the parties prior to the hearing and the documents submitted at the outset of the hearing, I decided that it was not prudent to fully decide the objection to my jurisdiction without hearing the evidence of the matter. Accordingly, I took the employer’s objection to the adjudicability of the first grievance under reserve of hearing all the evidence.\n\nAs the testimony of the grievor and Captain Richard Payne concern the same issues and there was no contradiction between their testimony, it has been summarized together. In the summer of 1993, Donna Urquhart began working in the maintenance shop. She was hired under an equal employment initiative for women in non-traditional roles. She apprenticed in the fire control shop - services weapons.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-3", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 9–10", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At the end of her apprenticeship, Ms. Urquhart was classified as a SR-EEW-10S, one level above the grievor, who was then at the SR-EEW-10 level with 18 years seniority. However, because of his knowledge and experience, the grievor was frequently called upon to review the quality of Ms. Urquhart’s work and, at times, to redo it. Terry Martin, the grievor’s supervisor, was aware of Ms. Urquhart’s shortcomings as they had been brought to his attention several times, not only by the grievor, but by another employee as well. These shortcomings notwithstanding, Mr. Martin rated Ms. Urquhart as “fully satisfactory” on her performance appraisal (PER) in 1995.\n\nThe grievor’s PER for that year was also fully satisfactory, but also included a rating that the quality of his work consistently exceeded requirements and expectations. At the end of the meeting at which he signed his PER, Mr. Martin informed the grievor that Ms. Urquhart had filed an unofficial complaint against him. The substance of the complaint was that the grievor had closed a door in Ms. Urquhart’s face. The grievor did not recall the incident and said so. Mr. Martin replied that if two people could not get along, one of them could be removed. The grievor took this comment personally. The grievor returned to see Mr. Martin to tell him that he felt that his employment was being threatened. Mr. Martin told him to forget the whole thing.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-4", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 11–15", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "By way of context, it is useful to know that Ms. Urquhart was viewed by the grievor and his co-workers as a “protected person,” that is, as a female in a non-traditional field. She had been relocated to Dartmouth over more senior male personnel in the fire control shop who had unwillingly moved to Halifax. Furthermore, Ms. Urquhart was working in a shop that required seniority for advancement, which she did not have. In addition, she was at a higher classification level than the grievor. It seems that Ms. Urquhart made no bones about the fact that she “would be in the shop long after others were gone”. Thus, the grievor became increasingly anxious that his job could be in jeopardy.\n\nThe grievor’s concerns about his employment, his manager’s lack of action concerning the quality of the shop work generally and the fact that he was having to compensate for Ms. Urquhart’s shortcomings caused him to fall ill in December 1996 and to take five months of sick leave.\n\nWhile he was on sick leave, the grievor met with Ray Cormier, Production Manager, to discuss his concerns about the underwater marine weapons maintenance shop; he gave Mr. Cormier a detailed letter outlining those concerns. The grievor also went to see Mr. Martin to express similar concerns, also with a detailed letter in hand. Mr. Martin refused to accept the letter.\n\nMeanwhile, Mr. Cormier arranged a meeting between the grievor and Mr. Martin, Mr. Perrier, the group foreman, and Kevin Ernst on February 21, 1997. The grievor’s concerns were discussed and an action plan was agreed to. According to the grievor, no further action to resolve his concerns was taken as a result of the recommendations in the action plan.\n\nThe grievor returned to work in May 1997.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-5", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 16–17", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On December 2, 1997, Ms. Urquhart came to work in a neck brace following a car accident unrelated to work. The grievor testified that he and a co-worker, Gerry Cross, were discussing training opportunities when Ms. Urquhart entered the room. Ms. Urquhart intervened in the discussion by saying that she was not getting any training, that if she did not get any training she would be unable to work on the equipment, and that if there was no journeyman to work with her, she could not do the work. She stated that she took offence to the fact that the grievor kept notes about her and that he intended to report the results to the captain. The grievor replied to her comments by asking her what she would do if she had to go out on a sea trial. She replied that her husband would not allow her to go to sea because she would be with a bunch of men. The grievor responded that “she was getting darn good money to do electronic work and she had better darn do it”. The grievor admitted at the hearing that his reply had been an expression of his frustration at having to check and correct her work despite being at a lower classification, along with the fact that Ms. Urquhart did not seem to enjoy her job.\n\nMs. Urquhart left work that day for an indeterminate period. On December 6, 1997, at the request of Ed Merlin, Assistant General Manager, she sent a statement entitled “Mike Pepper documenting work performance of fellow employees” which set out Ms. Urquhart’s version of the altercation of December 2, 1997. She requested that the matter be resolved by means of a shop meeting and an apology from the grievor. Ms. Urquhart’s statement was taken by Mr. Merlin to be an official complaint. The grievor was not given a copy of Ms. Urquhart’s alleged complaint until July 31, 2002.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-6", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 18–23", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Merlin met with the grievor and shop steward Jerry Ryan on December 8, 1997, to discuss Ms. Urquhart’s statement. On December 22, 1997, Mr. Merlin met again with the grievor and Mr. Ryan to review the grievor’s log book. The log book recorded past repair work that he would refer to when similar repairs came up again. The log book did not mention the work of individuals, but rather how equipment was best repaired. The grievor was informed that no further action would be taken about this incident.\n\nOn January 23, 1998, the grievor met with Mr. Merlin and requested that Ms. Urquhart’s complaint be resolved once and for all. The grievor was told that there could be no decision until Ms. Urquhart returned to work.\n\nDuring Ms. Urquhart’s absence, the grievor took on additional responsibilities at work and upgraded his classification.\n\nIn May 1999, Ms. Urquhart returned to work on modified duties in a shop area adjacent to the grievor’s. Shortly thereafter, the grievor had a chance encounter with her in the corridor outside the washrooms that caused him to panic. He reported the incident to Mr. Cross. Thereafter, the grievor experienced several similar panic attacks.\n\nOn June 8, 1999, the grievor took sick leave and has not returned to work since that time.\n\nOn September 8, 1999, the grievor telephoned Wilma Verge, Human Resources Manager, to request her assistance in resolving Ms. Urquhart’s still outstanding complaint. On September 24, 1998, Ms. Verge wrote to the grievor stating that there had never been an official harassment complaint filed against him and that there was no formal investigation in progress. Accordingly, no disciplinary action was being contemplated nor was his employment threatened.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-7", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 24–25", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On October 29, 1999, Sun Life Group Disability Management (Sun Life) wrote to Ms. Verge concerning the grievor’s disability claim. Mr. Cormier responded to an inquiry from Ms. Verge on December 3, 1999, that there had been an “interpersonal problem” between the grievor and another employee. Ms. Verge communicated to Sun Life that no formal complaint has been filed against the grievor but that there was an interpersonal problem that appeared to have caused him distress.\n\nOn December 21, 1999, the grievor filed harassment complaints against Mr. Martin, Mr. Merlin, Mr. Cormier and David Conrod, as well as Ms. Verge, alleging abuse of authority because they ignored complaints of alleged harassment by Ms. Urquhart: the alleged door slamming incident (date unknown) and the verbal altercation incident (December 1997). On February 22, 2000, the commanding officer, Captain Richard Payne, wrote to the grievor informing him that he had looked into his complaints and determined that informal investigations had been inconclusive and that the investigations were formally closed. This letter was followed by another more detailed letter dated March 13, 2000, whereby Captain Payne reiterated his findings that there was no evidence to support the five harassment complaints and suggested that these concerns could have been more appropriately addressed in a grievance.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-8", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 26–27", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On May 5, 2000, the grievor filed a request for an investigation with the Public Service Commission (PSC) alleging that his complaints of harassment had not been handled in accordance with the harassment policies of the Department of National Defence (DND) and the Treasury Board of Canada Secretariat. The grievor asked as redress that the respondents be disciplined, that he be provided with a safe workplace for his return to work, and that he be compensated for sick leave, loss of income and benefits resulting from his absence from work. On August 2, 2000, the PSC denied the grievor’s request for an investigation on the basis that the complaints were untimely and, subsidiarily, that the grievor had not provided specific incidents of omission or improper behaviour that would justify the PSC’s intervention.\n\nIn the meantime, a mediation process initiated in June 2000 resulted in a memorandum of understanding signed on October 11, 2000, in which Captain Payne agreed to revisit the grievor’s harassment complaints. On November 9, 2000, Captain Payne informed the grievor that upon re-examining his complaints, there were elements of harassment that may have been present, that he would be asking the respondents to present their views, and that he would concurrently prepare the terms of reference for an investigating team. On January 23, 2001, Captain Payne informed the grievor that, after reviewing the responses, he had decided to proceed with an investigation.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-9", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 28–30", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The investigation was conducted by two outside investigators and centered on the following complaints: (a) that Mr. Martin and Mr. Merlin had failed to afford the grievor due process or closure following a complaint against the grievor, with the result that his health and well-being were affected; and (b) that Ms. Verge had failed to exercise due diligence when she was notified of the grievor’s complaint.\n\nIn a comprehensive report dated May 29, 2001, the investigators found that the grievor’s complaints of harassment were justified. They noted that while there had been no specific intent to harm the grievor, the issue of motive plays no part in a harassment investigation. By failing to address the complaints promptly and to follow departmental harassment guidelines, the grievor had been poorly served by the system intended to address such complaints. The investigators made a series of recommendations, including that the grievor be afforded the opportunity, with the assistance of his physician, to return to his position in the underwater shop or to a similar position in a suitable location. The other recommendations were preventative in nature and focused on education within the organization.\n\nOn July 5, 2001, Captain Payne wrote to Mr. Martin, Mr. Merlin and Ms. Verge, with a copy to the grievor, acknowledging that he had received the investigation report and stating that he would be making his own assessment of it. Mr. Merlin, Mr. Martin and Ms. Verge presented rebuttals to the investigation report.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-10", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 31–32", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On September 12, 2001, Captain Payne wrote three letters to the grievor about his findings and decisions relating to the investigation report. He found that certain allegations were supported, in that Mr. Merlin and Mr. Martin had not afforded the grievor due process. As corrective action, Captain Payne ordered that a “training package tailored to the procedural aspects of the recently promulgated Harassment Prevention and Resolution Guidelines” be designed and that Mr. Merlin and Mr. Martin attend such training. Captain Payne found that the allegations against Ms. Verge were unsupported. Captain Payne stated in these letters that his decision constituted administrative closure to the grievor’s harassment complaint and that, should the grievor not be satisfied, he could avail himself of the grievance procedure.\n\nIn his testimony, Captain Payne stated that he had decided to maintain his earlier conclusions there had been no abuse of the managers’ authority even though the process with respect to Ms. Urquhart had not been handled as well as it could have been. Although there had been some miscommunication, there was no evidence of misconduct or harassment on the part of the managers. In his view, a training package to educate the managers was the most appropriate outcome since there had been no further training relating to workplace harassment since 1995. Captain Payne also testified that, as there was no finding of misconduct on the part of Mr. Martin, the grievor’s immediate supervisor, no consideration was given displacing him in order to allow the grievor to return to his substantive position.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-11", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 33–34", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On January 16, 2002, the grievor filed a grievance at the second level of the grievance procedure alleging that management’s mistreatment of him had caused him to become ill and unable to perform his duties. The grievance was denied at the second level of the grievance procedure on July 31, 2002, and at the final level on December 5, 2002 (received by the grievor on January 13, 2003). The matter was referred to adjudication on February 4, 2003.\n\nOn January 19, 2003, the grievor replied to Captain Payne concerning his response to the grievance at the third level of the grievance procedure. He told Captain Payne that his absence from work was not being taken seriously as a medical issue and that there were existing workplace conflict resolution processes that had not been followed. He alleged that his concerns about the quality of work coming from the submarine shop were not taken seriously and that he did not feel comfortable returning to a new position. He stated that his complaint had not truly been resolved to his satisfaction and, despite Captain Payne’s assurances to the contrary, he had received no closure from the investigation and the grievance process.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-12", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 35–37", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "A mediation process was initiated on September 11, 2003, in an attempt to resolve the grievance. On July 27, 2004, 10 options were proposed to the grievor with a view to resolving his grievance and having him return to work. On March 17, 2006, the employer tendered the same options as its final proposal to the grievor, at the same time advising him that if mediation failed, a recommendation would be made to terminate his employment. Mediation efforts were ultimately unsuccessful. On April 28, 2006, Lorne Brown, President, Federal Government Dockyard Trades and Labour Council East, advised the employer that the grievor had rejected the employer’s final proposal.\n\nOn May 1, 2006, the grievor was advised in a letter by Captain Gilles Hainse (the new commanding officer) that since the issue of his return to work had not been resolved during the March 17, 2006 mediation session, a recommendation would be made to the Rear Admiral to terminate his employment due to medical incapacity.\n\nOn May 24, 2006, Captain Hainse sought the grievor’s consent to contact his physician, Dr. Edwin Rosenberg, in order to update a medical assessment dated November 2, 2004, that had been given to the union. The grievor provided his written consent to disclose this information.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-13", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 38–40", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor testified that he provided his consent for a medical report from Dr. Rosenberg, but that he had been intimidated in the course of doing so. Captain Hainse’s letter of May 24, 2006, requesting the grievor’s consent to disclose medical information had been delivered by two military personnel without giving him prior notification. These persons apparently stated that they would return that day to pick up the signed letter. The grievor stated that the employer had also sought to contact Dr. Rosenberg directly for this information before requesting his consent. The grievor considered this heavy-handed, given that he had always cooperated concerning such matters. On June 30, 2006, the grievor received a letter signed by the Rear Admiral advising him that his employment was being terminated pursuant to paragraph 11(2)(g) of the Financial Administration Act, effective July 14, 2006 (later corrected with the final level reply to read paragraph 12(1)(e) of the Financial Administration Act).\n\nOn July 18, 2006, the grievor filed a grievance disputing the termination of his employment at the third and final level of the of the grievance procedure. On December 13, 2006, the grievance was denied.\n\nThe grievor is presently receiving temporary earnings replacement benefits from the provincial workers’ compensation board.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-14", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 41–43", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor has been in the care of Dr. Edwin M. Rosenberg, a psychiatrist, since July 6, 1999. At the time he consulted Dr. Rosenberg, the grievor had been away from the workplace since the beginning of June 1999. The grievor had previously been diagnosed by his family physician as suffering from a major depressive disorder with symptoms of panic attacks and was being treated by means of regular follow-ups and prescribed medication. Dr. Rosenberg provided considerable background about the grievor’s illness, which is not repeated here, save for what is relevant to the outcome of this decision. Extensive medical documents were filed by consent of the parties, some of which will be considered further in these reasons.\n\nDr. Rosenberg confirmed that the grievor’s ongoing illness and inability to return to work was initially caused by incidents relating to Ms. Urquart and then prolonged by the fact that her harassment complaint remained unresolved during her extended absence. Thereafter, the stress caused by the lengthy and unsatisfactory resolution of the grievor’s harassment complaints amplified his symptoms and further prevented him from returning to work.\n\nDr. Rosenberg’s opinion was that while the grievor was biologically susceptible to depression, that, in and of itself, was not the cause of his current state of health and his prognosis for improvement could be tested only if he was offered the opportunity to return to the workplace. In his view, the grievor could return to work in approximately three months if workplace issues were resolved. Conversely, his symptoms would continue as long as these issues remain unresolved.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-15", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 44–45", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Dr. Rosenberg testified that the opinion he gave on November 2, 2004, about the grievor's ability to work was at the union’s request in view of ongoing discussions with the employer about the grievor’s return to work at that time. On June 2, 2006, prior to terminating the grievor’s employment, the employer requested another opinion as to whether his 2004 opinion remained valid. Dr. Rosenberg confirmed his opinion of November 2, 2004, that the grievor was able to return to work if the employer provided a resolution to the issues that caused his illness and accommodated his return to work. However, having the grievor report once more to the supervisor with whom he had continuing difficulties, demoting him to a lower classification or forcing him to take medical retirement would further contribute to his depression. The grievor is presently undergoing treatment to learn coping mechanisms that allow him to lead a normal life. The grievor would be able to sustain extensive technical retraining, if necessary, to assume a new position without adverse effects. Dr. Rosenberg opined that management training on how to handle the harassment complaints in the workplace that had occurred since the grievor’s absence bode well for his return.\n\nCaptain Hainse was the only witness who testified as to the circumstances of the grievor’s termination. In light of the reasons for my decision, I have given particular attention to his testimony.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-16", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 46", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Captain Hainse became the commanding officer of Fleet Maintenance at Cape Scott in December 2005, and is the commanding officer who recommended the termination of the grievor’s employment. Captain Hainse testified that he had no involvement with the grievor until a few months before his termination. The grievor’s harassment grievance and the details of an ongoing mediation came to his attention at the time that he became commanding officer as part of the “turnover” from his predecessor, Captain Smith. Captain Hainse was told that the grievor’s complaints were long-standing and that many attempts had been made to resolve the issues administratively, including the ongoing mediation process. Captain Hainse participated in the mediation session that took place on March 17, 2006. During the mediation session, he told the grievor that if no agreement was reached about his return to work, a recommendation would be made to terminate his employment based on medical incapacity.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-17", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 47–48", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On April 28, 2006, Mr. Brown, on behalf of the grievor, wrote to Captain Hainse informing him that the employer’s return-to-work proposal was unsuitable. Captain Hainse replied that he would, as a consequence, recommend the termination of the grievor’s employment: I have received a letter dated 28 April 2006 from Mr. Lorne Brown, President of the FGDT&LC(E), advising me that you have rejected the proposal tendered to you at the 17 March 2006 Mediation Session. I regret that we were unable to resolve this issue and as advised at the Mediation Session I have no other recourse but to recommend to MARLANT’S delegated authority for termination, Radm DG McNeil, that your employment be terminated due to your medical incapacity to return to the workplace. You will be advised by Radm McNeil of his decision on this matter.\n\nCaptain Hainse testified that after he found out that the grievor had refused the employer’s proposals, his concern was that the right steps be taken to ensure the fairness of the termination process, including obtaining medical evidence, getting advice from Human Resources and ensuring that the grievor had “due process.”", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-18", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 49", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Captain Hainse was informed by a human resources officer that the grievor’s last medical information had been received in 2004, and was advised that it was necessary to get an update of his medical condition, including a medical release from the grievor. On May 24, 2006, Captain Hainse wrote to the grievor to obtain his consent: By letter dated 1 May 2006, I advised you that I would be recommending your termination due to your medical incapacity to return to the workplace. During the preparation of my recommendation, I noted that the last assessment from Dr. Rosenburg was dated 2 November 2004. This assessment was provided to Mr. Tom Denault, Vice President of the Federal Government Trades and Labour Council (East), in response to a request to review the ‘‘retraining/development plan to support your reintegration to the workplace’’. This plan was developed in consultation with union representatives. At that time, Dr. Rosenburg stated: ‘‘Mr. Pepper is not presently able to perform any of the positions identified for his possible employment, as identified by DND. Should Mr. Pepper be obliged to return to the workplace in his previous employment, or to another work position without resolution of those difficulties which contribute to his medical leave from the workplace, it is my opinion that Mr. Pepper’s depressive symptomatology will continue to be manifested, precluding his effective involvement at the workplace’’… Your lawyer subsequently advised us that you were only interested in returning to your substantive position but with a different supervisor. In the final level reply in the grievance procedure dated 5 December 2002, it stated: ‘‘… the evidence does not support removing the supervisor from that shop’’. This remains the Department’s position.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-19", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 49–50", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I wish to contact Dr. Rosenburg to get an update on your medical condition further to his assessment dated 2 November 2004. I would ask that you indicate your consent, or not, to my contacting Dr. Rosenburg. Please check-off the appropriate block on the second copy of this letter which is enclosed, sign and place it in the self addressed envelope. I will arrange to have this letter picked-up at 1000 hrs on Friday 26 May 2006. If this is not convenient, please contact my assistant … so alternate arrangements can be made.\n\nThe letter was delivered by hand on May 25, 2006, rather than by mail because Captain Hainse was concerned that the grievor might not be available during the summer months, and because it had come to his attention that Dr. Rosenberg was about to take extended leave and would possibly not be available to provide his opinion.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-20", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 51", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On June 2, 2006, Captain Hainse wrote to Dr. Rosenberg asking him to update his medical opinion: I am writing to you seeking confirmation of your medical opinion concerning Mr. Michael Pepper, an employee of Fleet Maintenance Facility Cape Scott. You may recall that in November 2004, you wrote a detailed letter concerning Mr. Pepper's medical status to Mr. Thomas Denault of the Federal Government Dockyard Trades and Labour Council. Around that time, the Department of National Defence was provided a copy of this letter as part of an effort to understand and resolve the issues surrounding his employment. Since then, there have been other efforts to resolve this matter but unfortunately the workplace difficulties involving Mr. Pepper are without resolution. The Department has notified Mr. Pepper, in a letter dated 1 May 2006, that a recommendation has been made to terminate his employment for cause for non-disciplinary reasons. At this time, I am requesting that you confirm whether or not your detailed medical opinions, as outlined in your November 2004 letter, remain valid. Please feel free to provide any comments or opinions that you deem relevant at this time. Mr. Pepper has provided his written consent to release this information to the Department as per the conditions as outlined in his enclosed letter, which was in response to our letter of 24 May 2006, which is also enclosed. Thank you advance for your cooperation in this matter.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-21", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 52–54", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On June 8, 2006, Dr. Rosenberg provided Captain Hainse with his opinion of the grievor’s medical condition: Thank you for your letter of 2 June 2006. I acknowledge receipt of Mr. Pepper's signed consent permitting me to correspond with you; at Mr. Pepper's specific request, copies of this letter will also be forwarded to Mr. Pepper and to Mr. David Mombourquette. As you note, on 2 November 2004, I wrote a letter to Mr. Thomas Denault, in his position as Vice-President of the Federal Government Dockyard Trades and Labour Council East, regarding Mr. Pepper, a copy of which is enclosed for your review. You have specifically asked, in your letter to me of 2 June 2006, that I “confirm whether or not your detailed medical opinions, as outlined in your November 2004 letter, remain valid.” Please accept this letter as confirmation that the opinions offered in my letter report to Mr. Denault of 2 November 2004 remain valid. Further, it remains my clinical opinion that the continuing fact of non-resolution of workplace issues which led to Mr. Pepper's depressive symptomatology continues to place a heavy burden on the augmenting and sustaining of that symptomatology.\n\nAfter receiving Dr. Rosenberg’s opinion, Captain Hainse prepared a recommendation to the Rear Admiral that the grievor’s employment be terminated. Captain Hainse explained in his testimony that the Rear Admiral held the delegated authority to terminate employment. He and Jim Stewart, the senior human resources officer, met with the Rear Admiral and presented him with a three-part briefing note.\n\nThe first part was Captain Hainse’s recommendation in the form of a memorandum that the grievor’s employment be terminated for cause under sections 11(2)(g) and 11(4) (now 12(1)(e) and 12(3)) of the Financial Administration Act.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-22", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 55", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The second part provided a detailed history of the grievor’s career, personal information about his age and family, the circumstances of Ms. Urquhart’s complaint, the grievor’s harassment complaints, details of mediation discussion and exchanges (including the fact that mediation had been unsuccessful), an extract from Dr. Rosenberg’s opinion and a recommendation that the grievor’s employment be terminated “for his inability to report for work because of his illness.” This part was prepared by Ms. Donna Stringer, a labour relations officer, and was approved by Captain Hainse with a few minor changes.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-23", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 56", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The third part was a letter for Rear Admiral McNeil’s signature advising the grievor that his employment was being terminated. I have not reproduced the second part of the briefing note, which is a four-page document, because it contains a great deal of personal information and details what transpired during mediation. However, I reproduce here the first part, Captain Hainse’s recommendation to the Rear Admiral, outlining the reasons for his recommendation to terminate the grievor: 1. Authority to terminate an employee for reasons other than breaches of discipline or misconduct under Section 11-2(g) of the Financial Administration Act has been delegated by the Deputy Minister to the Commander Maritime Forces Atlantic. Termination must be for cause, FAA Section 11(4). 2. On 01 May 2006, I advised Mr. Michael Pepper an Electronic Systems Specialist (SR-EEW-11), employed with the Fleet Maintenance Facility Cape Scott that I would be recommending his employment be terminated due to his medical incapacity to return to work. Treasury Board required confirmation from Mr. Pepper’s attending physician that his medical opinion of 2 Nov 2004 remained valid, which confirmation was received by letter dated 8 June 2006. 3. Mr. Pepper has been absent from work since 1999. Following administrative closure of five harassment complaints in September 2001, the results of which were not acceptable to Mr. Pepper, he lodged a grievance stating he had been mistreated by management since 1997 which caused his illness. The grievance was denied at the Department’s final level of the grievance process by decision dated 05 December 2002. Mr. Pepper subsequently referred his grievance to Adjudication and an offer to engage in mediation was agreed to by the Employer.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-24", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 56", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mediation meetings/sessions have been ongoing since September 2003. During the mediation process considerable efforts were expended to develop a return to work program to accommodate Mr. Pepper in the workplace. Notwithstanding these efforts, the plan was deemed unacceptable by Mr. Pepper. A Briefing Note detailing the chronology of events is enclosed. The most recent mediation session was held on 17 March 2006 where a “final” proposal was tendered to Mr. Pepper. Mr. Pepper was also advised that if mediation failed, a recommendation for termination would be initiated. On 28 April 2006 we were advised by letter from the President of the Federal Government Dockyard Trades and Labour Council (East) that Mr. Pepper rejected the Department’s proposal. Consequently the grievance will be scheduled for Adjudication and we have been advised that Mr. Pepper will grieve his termination and refer to Adjudication and it is expected that both grievances will be heard concurrently at Adjudication. 4. A letter to Mr. Pepper advising him that his employment is being terminated is enclosed for your signature.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-25", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 57–58", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Captain Hainse’s testimony was that after reading the briefing note and asking for a few clarifications, Rear Admiral McNeil signed the letter of termination — the third part of the briefing note — that reads as follows: 3 June 2006 I have reviewed the Commanding Officer Fleet Maintenance Facility Cape Scott, Captain(N) J.G.C. Hainse’s recommendation that your employment be terminated for cause because of your inability to attend work due to medical reasons. You have been absent from the workplace since 1999 and it is regrettable that the considerable efforts expended to develop a return to work program were unsuccessful. As the Deputy Minister’s delegated authority under Section 11 (2) (g) of the Financial Administration Act to terminate employment for reasons other than misconduct, I am terminating your employment effective 14 July 2006. You have a right to grieve my decision in accordance with Article 19 of your collective agreement.\n\nOn December 11, 2006, the grievor wrote to Captain Hainse seeking clarification about the adjudication process and management’s accountability for not resolving his harassment complaints. Captain Hainse replied on January 18, 2007. He referred the grievor to his representative about the adjudication matters and gave him an update on the most recent efforts deployed by the unit to address harassment complaints. He also stated that the informal investigation of Ms. Urquhart’s complaint had been inconclusive and that no report was ever issued.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-26", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 59–60", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In cross-examination, Captain Hainse stated that when he met with the Rear Admiral, he presented him with the information and recommendations in the briefing note. The issues he considered relevant were the many attempts at mediation and at having the grievor return to work. Captain Hainse admitted that the only attempts he was aware of concerning the grievor’s return to work were 10 options and recommendations presented as part of the mediation discussions. He admitted that he had not been involved in the creation of these options and was unaware that they had been prepared as part of mediation discussions in 2004. Captain Hainse was unaware that the exchanges had been on a “without prejudice” basis as part of confidential information exchanged during mediation.\n\nIn response to questions about the grievor’s harassment complaints, Captain Hainse stated that he did not revisit or question Captain Payne’s conclusions concerning the grievor’s complaints of harassment, since his role was not to validate Captain Payne’s decisions. His discussion with Captain Payne involved getting some background information concerning the grievor, his findings and the investigation. Captain Payne had informed the Rear Admiral only that the matter of the grievor’s grievance was going to mediation. Captain Hainse acquiesced that although the briefing note to the Rear Admiral mentioned the investigation into the grievor’s complaints of harassment, it did not contain the findings or recommendations of the investigators or what Captain Payne had said about the report.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-27", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 61–62", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Captain Hainse admitted that he relied on Ms. Stringer for the information contained in the briefing note, and in particular paragraph 14 concerning the mediation process and the options presented to the grievor. Captain Hainse said that he was present at the mediation session on March 27, 2006. His decision to recommend the termination of the grievor’s employment, should mediation be unsuccessful, rested on the fact that mediation had been ongoing for quite some time and that the employer’s proposals had not produced any results. He conceded that he did not explore any other options about continuing the grievor’s employment after mediation was unsuccessful. The only information he obtained before making his recommendation to the Rear Admiral was an update of the grievor’s medical condition. He did not consider getting other medical information.\n\nWhen asked about the urgency of recommending the termination of the grievor’s employment, Captain Hainse responded that this decision had been long overdue. Mr. Cormier had told him that the grievor was sick and could not return to work. During the last phase of mediation there appeared to be no possible prospect of the grievor’s return to work. All the options had been presented during the mediation process. The fact that the grievor’s “issues” remained unresolved was not good for the morale of the unit. He was concerned about the grievor’s dedication to his work as the grievor did not appear to want to resolve workplace issues. Captain Hainse was concerned that if such workplace issues were not dealt with, other employees would perceive a lack of leadership that would affect the efficiency of the unit. He admitted there had been no complaints from other employees about these concerns or the grievor’s absence.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-28", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 63–65", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Captain Hainse also explained that when he received his command, he went through a transition period with Captain Smith. He was briefed in preparation for the mediation session of March 17, 2006, by a human resources officer. He testified that he was unaware of the reasons why mediation had been delayed for a period of time between 2003 and 2006, other than the lawyer representing the employer had been absent on extended leave and had eventually been replaced. He was unaware that mediation had also been delayed because of changes in command at Cape Scott. He was also unaware that the grievor was being compensated for a workplace injury rather than long-term disability as he thought.\n\nCaptain Hainse asserted that the termination of the grievor’s employment had been handled “by the book” in light of the grievor’s complaints about management’s mishandling of the harassment investigation. In his mind, there was reasonable cause for the grievor’s termination and he had acted on it based on the employer’s termination policy: “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance.”\n\nCaptain Hainse acknowledged that he had discussed the ongoing mediation with Mr. Cormier sometime between December 2005 and March 2006, but he could not recall the details. He was concerned that there had been many attempts at mediation and at having the grievor return to work, but with no results. Captain Hainse said that the briefing note had been prepared by a labour relations officer following his instructions and that the officer had taken the initiative to include the information concerning exchanges during the mediation process to complete the briefing note.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-29", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 66–68", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As the grievor proceeded first in this matter, his arguments are presented first.\n\nThe grievor argues that his harassment grievance is based on article 5 of the collective agreement — “Managerial Responsibilities” — and is in keeping with a developing line of jurisprudence that an employee may grieve harassment by the employer, as held in Toronto Transit Commission and A.T.U. (Stina) (2004), 132 L.A.C. (4th) 225. Even though the collective agreement may be silent about human rights violations, there is an implied duty of care to ensure the psychological safety of employees, that prevents management from exercising its rights in an abusive manner.\n\nThe courts have also held that if the essential character of the dispute arises from the interpretation, application, administration or violation of the collective agreement, the matter falls within the jurisdiction of the arbitrator (Ferreira v. Richmond, 2007 BCCA 131). The courts have also favoured the dispute resolution process set up under the collective agreement or legislation where it provides effective redress and serves the essential character of the dispute (Pleau (Litigation Guardian of) v. Canada (Attorney General), 1999 NSCA 159). The alleged misconduct of a supervisor toward an employee should be addressed at adjudication as held in Oliver v. Severance, 2007 PESCAD 2.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-30", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 69–70", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In addition, the grievor argues that the employer’s decision about his harassment complaint was flawed and should be set aside for reasons similar to Tucci v. Canada (Revenue, Customs, Excise and Taxation), 1997 CanLII 4875 (FC). In that case, the Federal Court set aside the decision of an investigator designated under the Public Service Employment Act because his reasons did not demonstrate that he had directed his mind to the alleged abuses of authority before him in reaching his decision. It was not sufficient for the employer to have noted the absence of malicious intent; it also had to bear in mind that decisions made by the grievor’s supervisor, other managers and the human resources officer did not follow departmental policies. This grievance alleges that the employer disregarded the recommendations of an official investigation team and gave no importance to the lack of cooperation of certain key managers. These actions constituted further harassment of the grievor. The employer’s remedy to institute a corporate training package was of no assistance in resolving the grievor’s dispute.\n\nIn these circumstances, an adjudicator must have the jurisdiction to adjudicate a grievance regarding the breach of employer policies designed to protect the rights of employees, such as the MARLANT policy declaration on good working relations that was in effect at the time of the grievor’s complaint.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-31", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 71–72", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor argues that the employer’s failure to follow due process in resolving his harassment complaint should form the basis for further damages, as held in Toronto Transit Commission. The grievor requests an award of compensation, beyond the mere loss of salary, because the employer’s actions have had a long-lasting impact on the grievor’s career and benefits and have aggravated his medical condition. The grievor requests that I exercise my jurisdiction under the Canadian Human Rights Act and make an award of general damages for the harm done to him.\n\nThe grievor argues that the employer’s decision to terminate his employment fails to take into consideration the duty to accommodate his mental disability to the point of undue hardship as required by the Canadian Human Rights Act. The grievor further argues that the decision to terminate his employment was based on irrelevant and inadmissible considerations, including discussions that took place during the mediation process.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-32", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 73–75", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer’s offer to accommodate was limited to options contained in a document produced during the mediation process. To return to work, the grievor needed to resume his former job without his former supervisor, Mr. Martin, whom the grievor alleges was the cause of his psychological condition. This was the conclusion of the grievor’s psychiatrist and was specifically requested by the grievor. Yet, the employer did not ask Mr. Martin whether he was prepared to change positions, even though Mr. Martin had made it known that he would no longer be comfortable supervising the grievor. The employer preferred to back its supervisor’s actions during this dispute and never considered this option. That position, argues the grievor, is fatal to the employer’s position that it attempted to accommodate the grievor.\n\nThe grievor takes the position that discussions during the mediation process are confidential and cannot be the subject of a subsequent adjudication. The discussions were not kept confidential; they were relayed to several persons outside the mediation team and used as a basis for terminating the grievor’s employment. The termination is, therefore, unfounded because it is based on inappropriate considerations.\n\nThe grievor argues that he had been promised closure by Captain Payne concerning Ms. Urquhart’s complaint, yet the issue of the investigation into his harassment complaints, his grievances and the mediation process come up again as part of the considerations for the termination of his employment. The briefing note does not state that the investigation report upheld his complaints or that Captain Payne subsequently decided not to sustain the findings of the investigation report.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-33", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 76–77", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The briefing note goes into great detail about the proposals discussed during mediation and places the blame on the grievor for the failure of the mediation process because he rejected the employer’s proposals. These facts were prejudicial to him because the Rear Admiral had no other context but the briefing note to assess the reasons he was not returning to work. The briefing note does not state that much of the delay during the mediation process was attributable to the unavailability of the employer’s counsel, the change of command or the shortcomings of the return-to-work proposals. The facts are selective and certain of them are untrue, for example, his being unavailable to attend mediation in January 2004 because of illness and his undertaking to provide a counter-proposal in January 2004. The grievor argues that none of these facts or the options proposed should have been in the briefing note. The Rear Admiral’s reliance on the incomplete and misleading facts in the briefing note should make the decision void ab initio.\n\nThe grievor further argues that the termination of his employment is illegal because the employer failed to follow DND termination procedures provided in its policy: “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance.” There was no proper medical assessment nor was there a discussion with the employee about other options as required before deciding on termination. The employer disregarded proper procedures to terminate his employment just as it disregarded proper procedures to deal with his harassment complaints.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-34", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 78–81", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer did not try to accommodate the grievor up to undue hardship. No evidence was presented that accommodating his return to work would result in financial hardship, that his absence disrupted the employer’s operations or had an impact on the morale and work performance of other employees.\n\nThe grievor suggests that termination was a “done deal” even before the mediation session of March 17, 2006. The employer proceeded callously by sending military personnel to deliver a letter to his home and trying to obtain a medical opinion from his psychiatrist without his consent.\n\nThe grievor asks that the dismissal be overturned and that he be reinstated with full seniority and compensation. He further asks that I exercise my discretion under section 226(g) of the PSLRA and award damages in the amount of $20,000 for his pain and suffering as a result of this ordeal and the violation of subsections 52(1)(b) and 53(2)(e) of the Canadian Human Rights Act. The grievor argues that the termination of his employment was discriminatory and that the employer was aware that its decision would cause him harm. Furthermore, the employer acted recklessly in not considering accommodation.\n\nIn support of the confidentiality of the mediation process, the grievor cited the following cases: Rogacki v. Belz, 2003 CanLII 12584 (Ontario Court of Appeal); Rudd v. Trossacs Investments Inc., 79 O.R. (3d) 687 (Ontario Superior Court of Justice – Divisional Court), and the following case concerning the final effects of mediation, Skandharajah v. Treasury Board (Employment and Immigration Canada), 2000 PSSRB 114.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-35", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 82–83", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer argues that, unlike the private sector, the jurisdiction of an adjudicator flows from the PSSRA (as it applied at the time) and not from the collective agreement itself. Sections 91 and 92 of the PSSRA and sections 208 and 209 of the PSLRA provide a broad right to grieve. On the other hand, the right to adjudication is limited to three issues. Harassment not being one of these issues, the grievance cannot be referred to adjudication.\n\nThe grievor’s argument that his right to refer his grievance to adjudication can be found in the management rights clause in the collective agreement is flawed as it is contrary to precise statutory provisions that govern the federal public sector. Toronto Transit Commission stems from a completely different legislative setting. Moreover, section 96(2) of the PSSRA prevents an adjudicator from amending the collective agreement. Bratrud v. Office of the Superintendent of Financial Institutions Canada, 2004 PSSRB 10, is a case in point. In that matter, the grievor alleged that her performance appraisal constituted personal harassment. The collective agreement contained a specific clause protecting employees against personal harassment, which in turn provided the adjudicator with jurisdiction to hear the complaint. The cases of Canada (Attorney General) v. Lachapelle, [1979] 1 F.C. 377, and Baril v. Canada (Attorney General), [1980] 1 F.C. 55, rejected the notion that a disciplinary letter could be referred to adjudication based on the same principle, that is, that to be adjudicable, a specific right must exist in the statute.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-36", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 84–86", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Furthermore, the grievor also brought the same complaint before the PSC, which was the proper forum for this type of complaint. That complaint was rejected. If the grievor was not satisfied with this decision, he could have challenged it in another forum. It is not because the grievor was told that the filing of a grievance may be more appropriate that this grievance may be referred to adjudication. An adjudicator does not have jurisdiction over a grievance that alleges that the employer did not follow its policies. The factual substance of the grievor’s claims fell under the exclusive authority of the PSC as held in Adams v. Cusak, 2006 NSCA 9.\n\nIn the alternative, the employer argues that the grievance is without merit. Captain Payne’s disagreement with the conclusions of the investigators is not improper, as it was within his right and duty as reviewing officer to make this decision. There is no evidence of bad faith, or that he made his decision based on any improper purpose. He agreed that managers had made errors, but that these errors did not constitute harassment of the grievor. The fact that certain managers did not participate in the investigation process does not vitiate the entire process.\n\nThe employer disagrees that not following the harassment policy is in itself harassment. It is up to the responsible officer to determine whether there was harassment. The issue was dealt with by the PSC and again through the grievance procedure. Both these processes concluded that the grievor had not been subject to harassment.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-37", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 87–89", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer argues that Scheuneman v. Canada (Treasury Board), [2000] 2 F.C. 365, is authority for the principle that a grievor must be able to return to work within a reasonable period of time and that any leave is of a temporary nature. The employer is entitled to act on the medical information that it has. Whether the illness or the disability was caused by the workplace is not relevant. The grievor’s psychiatrist concluded that the grievor could not return to work unless his issues were resolved. This medical conclusion does not support returning an employee to work with accommodation. That the grievor’s issues be resolved to his satisfaction is not an accommodation issue and equates with an employee not being able to return to work in the foreseeable future.\n\nTo accept the grievor’s statement that he cannot return to work until all his issues have been resolved is akin to forcing the employer to agree with a grievor’s position. The grievor’s testimony is that there has been no closure as a result of the administrative processes and that even the adjudication process may not bring him closure. The subject of closure does not form part of any duty to accommodate. The duty to accommodate cannot be seen to imply the satisfaction of all of an employee’s concerns.\n\nThe employer argues that the termination of the grievor’s employment was the only reasonable conclusion under the circumstances in a case where an employee has been absent from work for an extended period of time and his return to work is unlikely in the foreseeable future (Brown and Beatty, para. 7:60000). The grievor has not made a case for exemplary damages. If this is a workplace injury, then the grievor is covered by a compensation plan for such injury.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-38", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 90–93", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer submits that it would be inappropriate to remove the grievor’s immediate supervisor from his position, as it did not find that the supervisor had harassed the grievor. Were the employer to remove the supervisor without his consent, it would be open to a complaint from a blameless supervisor who acted on the basis of the information available to him at the time. Moreover, the adjudication process provides the means of curing any shortcomings with respect to the employer’s decision.\n\nThe employer also submits that there will always be a difficulty when a mediation process does not resolve a dispute and the matter then comes to adjudication. The employer is in the difficult position of not being able to put forward what was proposed to the grievor during the mediation process. The employer takes the position that as a representative of management it was appropriate to apprise the Rear Admiral of what had occurred during the mediation process. In this case, the briefing note set out the failure to reach an agreement and the decision to proceed to termination as a result. However it was also relevant that the grievor had not been in the workplace for seven years and no return to the workplace was foreseeable.\n\nThe employer submits that just because options were examined in the context of mediation, they should not be excluded from the employer’s considerations in making a decision thereafter. In this case, these considerations should not be allowed to vitiate its decision to terminate.\n\nThe grievor replies that mediation discussions are without prejudice and that is the reason why they are not disclosed. The grievor disagrees that the Rear Admiral was entitled to mediation information simply because he is part of management and that he could act on that information.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-39", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 94–95", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor takes issue with the employer’s position concerning the removal of the supervisor, because this avenue was never considered.\n\nThe grievor responds that the employer has taken a too narrow approach to the legislation and has not considered how Toronto Transit Commission has changed this evolving area of the law and the scope of an arbitrator’s jurisdiction. The grievor urges me to give careful consideration to the broad principles of this case and how it can be applied to the grievor’s harassment grievance. The employer should be held to the standard of its declared policies as these policies concern the application of the collective agreement. But for the employer’s actions, the grievor would not have left work and he argues that damages are owed on this basis.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-40", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 96", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As the harassment grievance was filed on January 16, 2002, the Public Service Staff Relations Act is the applicable statute with respect to this grievance. The PSSRA defines not only how the adjudication process is to be carried out by the Board, but the subject matter of an adjudicable dispute. Section 92 of the PSSRA is very specific as to what type of grievance can be referred to adjudication: 92. (1) Where an employee has presented a grievance up to and including the final level in the grievance process, with respect to (a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award, (b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4), (i) disciplinary action resulting in suspension or a financial penalty, or (ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or (c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty, and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-41", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 97", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The jurisdiction of an adjudicator appointed under the PSSRA with regard to the federal public sector differs significantly from the broad jurisdiction conferred, for example, upon arbitrators appointed under the Canada Labour Code, which provides as follows: 57. (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention. 60. (1) An arbitrator or arbitration board has (a.1) the power to interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is conflict between the statute and the collective agreement; [Emphasis added]", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-42", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 98", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As my jurisdiction is precisely defined in the legislation, I am not empowered to consider any other source, even though the applicable collective agreement may appear to create collateral rights. The case of Lachapelle decided by the Federal Court of Canada is decisive on this point: It is clear that consideration must first be given to the source of an employee's right to submit a grievance to adjudication by respondent Board, or more specifically, by an adjudicator or a board of adjudication acting within the framework of the rules established by the Board. There is no doubt as to the reply. This system of adjudication is established by the Public Service Staff Relations Act, which makes the Board that it has created responsible for supervising its implementation. The source of the employee's right to make use of the adjudication procedure, and consequently the source of the power of the Board, or of the adjudicator that it designates to hear a grievance that is submitted to it, may therefore only be found in this Act. Section 91 of this Act specifies exhaustively when a grievance may be referred to adjudication, and does not empower anyone to decide otherwise: it is therefore the Act alone that must be considered. This reasoning may appear simplistic, but it is nevertheless worth stating in order to rebut in advance any attempt to look elsewhere than in the Act, such as in the applicable collective agreement, and specifically in article 9.23 of the said agreement, which concerns the grievance and adjudication procedure, for the source of the employee's right and consequently of the jurisdiction of the Board or the adjudicator.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-43", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 98–99", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In fact, respondent adjudicator quickly dismissed the argument to this effect made before him and counsel for the mis-en-cause did not press it in this Court. I will spend no more time on this point: the parties in their agreement could not claim to stipulate contrary to what Parliament has prescribed in section 91 of the Public Service Staff Relations Act concerning the right of an employee to make use of the adjudication procedure.\n\nThe grievor’s claim of alleged mistreatment is not a grievance relating to “disciplinary action resulting in discharge, suspension or a financial penalty.” Nor does a claim for lost costs, benefits and damages transform an unadjudicable grievance into an adjudicable one.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-44", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 100–102", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I disagree with the grievor that my jurisdiction should be interpreted broadly as suggested in Toronto Transit Commission. The grievor’s submission is that his grievance relates to the interpretation of the collective agreement because it alleges that the employer improperly applied management policies. While the employer assumes a duty in the collective agreement to treat its employees equitably according to its policies, no enforceable duty is created by the existence of this clause. An unsatisfied employee’s only recourse, where the employer has not followed its own policies, is the grievance procedure or another statutory scheme, as the case may be. In matters of harassment, the PSC is the appropriate forum to obtain effective redress for this type of complaint. If the PSC dismisses a complaint, the appropriate recourse for a review of that decision is the Federal Court, not this Board. It should be noted that under section 7.5 of the Public Service Employment Act, R.S., 1985, c. P-33, the PSC had the broad remedial authority to order a deputy head to take appropriate corrective action, should this have been its determination.\n\nFor these reasons, I am without jurisdiction to resolve this grievance.\n\nThe termination of the grievor’s employment raises two issues: (a) the use of confidential information obtained during the course of mediation, and (b) the employer’s duty to accommodate a disabled employee.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-45", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 103–105", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor alleges that the termination of his employment was based on information exchanged during the mediation process, including that mediation was reported to have failed because he would not accept certain employer proposals to bring him back to work. The grievor argues that the information provided in the briefing note, which the Rear Admiral relied upon to make the decision to terminate, was prejudicial to his interests. To this, the employer has responded that the Rear Admiral, as a member of management, was entitled to know about the mediation discussions and, regardless of discussions that took place at mediation, the decision to terminate the grievor was based on the fact that there was no reasonable expectation that he would return to the workplace in the foreseeable future.\n\nBefore examining the validity of these arguments, an understanding of the principles of the mediation process as it applies to the resolution of workplace disputes is required.\n\nThe mediation of workplace disputes is well recognized as offering a better opportunity to search for a mutually acceptable outcome than does grievance arbitration. In comparison with arbitration awards that result in grievances being sustained or denied, mediation allows and even encourages more cooperative problem-solving than that which occurs during an arbitration hearing. It is also generally accepted that the quality of the grievance outcome is enhanced when it is mutually agreed upon by the parties rather than imposed by an outsider. Furthermore, this type of dispute resolution is well known to foster improved longer term cooperation.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-46", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 106–107", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mediation would not survive long if parties were not prepared to accommodate each other by exchanging available information in order to explore settlement possibilities. Thus, the adoption and use of mediation requires a mutual commitment to greater cooperation in handling disputes given the usual adversarial roles of the parties and the concomitant expectations of the parties’ respective constituents. This cooperative approach is one of the key reasons for mediation’s success. Not only does it reflect the motivation and attitude of the parties, but it also rests on the sense of trust that must develop during the process.\n\nOne of the elements that contributes to the sense of trust between the parties during mediation is the confidentiality of the process. In fact, most participants take the confidentiality of the mediation process for granted. Confidentiality is also an express condition of an agreement to mediate. Confidentiality means that only the participants and persons with the authority to resolve the dispute in the final instance will know about the details of the mediation. Confidentiality is important because, from the litigant’s perspective, very personal information and career decisions may arise during discussions. From counsel’s perspective, the possible effect of mediation on future litigation is an important consideration in how much can be revealed during discussions.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-47", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 108–109", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "These issues explain how trust between the participants themselves and the mediator are at the core of the process. The very existence of the dispute may make the participants distrustful of each other. Participants will disclose important and personal information only where the mediator has been able to establish a trusting and safe environment. The important and personal information disclosed to the mediator during caucuses, which in turn assists the mediator in resolving the dispute based on the parties’ interests, needs, wants and desires, is also a vital part of the resolution process. Without the guarantee that information disclosed is confidential, mediation will not be productive.\n\nAs well, parties will hesitate to engage in settlement negotiations if something they say during mediation can later be used against them in another process. With the assurance that their discussions are confidential, parties are more likely to willingly discuss all matters and propose offers of resolution to settle their dispute. It is useful to note that courts have traditionally declared offers to compromise disputed claims or settlement proposals as inadmissible for the purpose of determining liability based on a policy of favouring settlements and giving little weight to proposals that do not end in a settlement. Arguably, a similar rationale should apply to the mediation process. Counsel and mediators alike rely on this rationale to ensure a confidential setting.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-48", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 110", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The following quotation aptly summarizes the reasons confidentiality is essential to the mediation process: The mediator encourages the parties to be candid with the mediator and each other, not just about their willingness to compromise, but also and especially about the needs and interests that underlie their positions. As those needs and interests surface, the possibility of finding a satisfactory resolution increases. The parties will be wary and guarded in their communications if they think that the information they reveal may later be used outside of the mediation process to their possible disadvantage. When they have resorted to mediation in an attempt to settle pending or threatened litigation, they will be particularly alert to the possibility that information they reveal to others in mediation may later be used against them by those others in that, or other, in litigation. The parties may also be concerned that their communications might be used by other adversaries or potential adversaries, including public authorities, in other present or future conflicts. The possibility of prejudice to legal rights, or of exposure to legal liability or prosecution, may not be a party’s only concern. Parties may also be concerned that disclosure of information they reveal in the mediation process may prejudice them in commercial dealings or embarrass them in their personal lives. Accordingly, mediation works best if the parties are assured that their discussions with each other and with the mediator will be kept confidential. (Owen Gray, “Protecting the Confidentiality of Communications in Mediation” (1998), 36, Osgoode Hall L.J. 667 at 671)", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-49", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 111–112", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Another consideration in favour of the confidentiality of the mediation process is the mediator’s neutral role. As an impartial third party, the mediator facilitates communication and discussions as part of the negotiation and ultimately the implementation of an agreement. Were the mediator required to disclose what happened at mediation other than the fact that the parties were in attendance, his role would be seriously compromised. The one-sided disclosure of mediation discussions by one of the parties compromises this neutral role.\n\nConfidentiality during the mediation process has also been viewed as part of the legal concept of privilege that protects against the disclosure of evidence at a hearing or trial. Generally, the privilege involves parties in a relationship that prohibits the disclosure by one party of information revealed by the other. Privileges have been created by law to protect the sanctity of certain relationships built upon trust and the need for protected disclosure. Examples of privileged relationships are those between lawyer and client, doctor and patient, and in a labour setting, union steward and grievor.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-50", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 113", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The fact that communications take place in a confidential relationship is not the sole test for applying the legal concept of privilege. In order to determine whether communications in a confidential relationship should be protected from disclosure, Wigmore proposed that communications be tested against four conditions: (1) The communications must originate in a confidence that they will not be disclosed. (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. (3) The relation must be one which in the opinion of the community ought to be sedulously fostered. (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. (See Sopinka, Lederman and Bryant, The Law of Evidence in Canada, Butterworths, 1992 at page 629)", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-51", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 114–115", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The conditions of the Wigmore test can usefully be applied to the different aspects of the mediation relationship. In their opening statement, mediators describe the mediation to the parties as confidential and usually require that a mediation agreement be signed prior to the commencement of mediation. Thus the first part of the test is met. The closed and private nature of the mediation process and the general acceptance that disclosure to the mediator should be in confidence clearly meet the second and third conditions of the test. The fourth part of the test is usually the more problematic one as it requires a balancing of the public interest in disclosure against the public interest in preserving the confidentiality of the relationship that is being put to the test. In Rudd v. Trossacs Investments Inc., the court concluded that the confidentiality of the mediation process is an important public interest and should outweigh the interest in compelling the evidence of a mediator. In the court’s view, the confidential information sought by the parties was not the only available evidence and the intention of the parties was the important point of whether they had concluded an agreement.\n\nThis being said, the courts have recognized the importance of the confidentiality of mediation where there is a statutory or an agency rule that encourages or mandates settlement discussions as was the case in Rogacki v. Belz.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-52", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 116–118", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Privilege in the mediation context, however, is different from other privileged relationships that usually consist of two parties and where the privilege is held by the client or patient in that only that person can waive the privilege. In work-related disputes, there are usually more than two individuals who participate in mediation. Does the privilege attach to the mediator, or are the parties able to waive it? If the privilege is to be waived, must all parties agree? Another difference is that in most cases, except in the case of the union steward-grievor relationship, a relationship exists between a licensed or regulated professional and a client. However, mediation is not a regulated profession and, the issue then becomes whether just any party can assert a privilege to preserve the confidential nature of the information disclosed during mediation.\n\nIn R. v. Gruenke, [1991] 3 S.C.R. 263, Chief Justice Lamer observed that a prima facie protection for solicitor-client communications was based on the fact that these communications were inextricably linked with the effective operation of the legal system. Likewise, on the ground of a similar public policy, there is an arguable case for a prima facie protection of communications exchanged during mediation where these communications are linked with the effective operation of an adjudication process recognized by statute.\n\nContractual confidentiality raises other issues. Whether the disclosure of confidential information has occurred or whether it is being requested will require the adjudicating body to weigh the issues stated earlier with the harm resulting from the disclosure. Where the confidentiality agreement has been breached and harm ensues, the adjudicating body will need to create an effective remedy.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-53", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 119", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "These policy considerations about the mediation process are particularly relevant to the federal public service workplace because of recent amendments to the legislation. On April 1, 2005, the Public Service Labour Relations Act (‘‘PSLRA’’), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Section 13 of the PSLRA now stipulates that part of the Board’s mandate is to provide mediation services: 13. The Board’s mandate is to provide adjudication services, mediation services and compensation analysis and research services in accordance with the Act.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-54", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 120", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As set out in the Preamble to the PSLRA, mediation has become a key element of the Board’s statutory mandate and recognized as a means to good labour-management relations. The goal of encouraging the settlement of disputes is based on providing litigants with more satisfying and appropriate procedures and outcomes, while preserving ongoing relationships and responsibility: Recognizing that the public service labour-management regime must operate in a context where protection of the public interest is paramount; effective labour-management relations represent a cornerstone of good human resource management and that collaborative efforts between the parties, through communication and sustained dialogue, improve the ability of the public service to serve and protect the public interest; collective bargaining ensures the expression of diverse views for the purpose of establishing terms and conditions of employment; the Government of Canada is committed to fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment; the Government of Canada recognizes that public service bargaining agents represent the interests of employees in collective bargaining and participate in the resolution of workplace issues and rights disputes; commitment from the employer and bargaining agents to mutual respect and harmonious labour-management relations is essential to a productive and effective public service;", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-55", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 121–122", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Under the PSLRA, mediation is a voluntary process. The voluntariness of the process, however, should not detract from the fact that the participants must be able to have confidence in its integrity. Contrary to the Board’s arbitration and adjudication functions, there is no precise regulatory or statutory framework for the Board’s mediation function. Accordingly, the integrity of the mediation process must be seen to rest on recognized public policy considerations that led the law-makers to include mediation as a preferred method of dispute resolution as part of the legislation. If these important public policy considerations are not recognized as part of the dispute resolution process, the parties will develop a perception that mediation is just an empty gesture and the goals of efficiency and quality improvement to the adjudication process will be all but lost.\n\nThe administration of the mediation process also affects the credibility of the Board’s processes. If the Board does not preserve the confidentiality of the mediation process, it is difficult to see how participants can be open and frank in their settlement discussions. An allegation of a breach of confidentiality flowing from the mediation process or a motion to the Board asking that settlement discussions be disclosed must be decided in light of whether the conduct or request impedes the policy goal of effectively and fairly resolving disputes.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-56", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 123–124", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The issues raised in the Rogacki and Rudd cases are different from the issues raised by the grievor in this case. In Rogacki, the issue was the availability of a contempt order against a party who had published the content of confidential discussions during mediation. The Court of Appeal for Ontario held that such an order was not available. In Rudd, the issue was the compellability of the mediator to give evidence in determining the terms of a settlement agreement. The same court decided that the public interest in maintaining the confidentiality of the mediation process outweighed the interest of the parties in compelling the evidence of the mediator. Rogacki reviews at some length the importance of protecting confidentiality as part of the mandatory mediation process, whereas Rudd takes the approach of applying the Wigmore test to determine whether the communications during mediation were privileged.\n\nWhile these two cases provide a sound review of the public policy issues inherent in maintaining the confidentiality of the mediation process, they do not address the precise points brought up by this grievance, that is, the scope of confidentiality during the mediation process and, if confidentiality is deemed to have been breached, its effect on the termination of the grievor.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-57", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 125", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor, his representatives, the employer’s representatives and the mediator signed an agreement to mediate on September 11, 2003. Among the clauses contained in the agreement are the following: By signing this document the parties undertake to conduct this mediation process in good faith and in a forthright manner, and to make a serious attempt to resolve the outstanding matters. The parties wish to mediate these matters in accordance with the following terms: all information exchanged during this entire procedure shall be divulged on a without prejudice basis for the purposes of settlement negotiations and shall be treated as confidential by the parties and their representatives subject to the requirements of any statute and the need to protect individuals against physical harm. Furthermore, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the mediation; it is understood that in order for mediation to work, open and honest communications are essential; it is recognized that the mediation process is voluntary, and may not be terminated by the mediator or the parties at any time; the mediator is free to caucus with the parties individually, as he or she sees fit, to improve the chances of a mediated settlement. Any confidential information revealed to the mediator by one party during such caucusing may only be disclosed to the other party with the former party’s express permission.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-58", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 125–127", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "It is understood that any of the parties may request at any time to caucus, with or without the mediator; in order to ensure the confidentiality of the process it is understood that any notes prepared or written by the mediator shall be destroyed; the mediator shall only report to the Board whether there has been a full settlement or not; any memorandum of settlement reached by the parties shall not be placed on any Board file, nor shall its terms be disclosed unless the parties otherwise agree; [Emphasis added]\n\nThese paragraphs of the agreement leave no doubt that the parties wished to assure themselves and the mediator of the protection of information disclosed during the mediation process that settlement discussions would be confidential. In fact, the major part of the agreement focuses on confidentiality and communication during the mediation process. I am therefore satisfied that, in this case, there existed a mediation privilege that met all the conditions of the Wigmore test.\n\nThe mediation agreement dated September 11, 2003, was introduced as part of the grievor’s evidence through the cross-examination of Captain Hainse. The employer did not object to its introduction. The following signatures appear on behalf of the grievor: Mr. Mombourquette, the grievor’s counsel who appeared during these proceedings, the grievor and an unidentified signature. The following signatures appear on behalf of the employer: Al Cormier, G. Beaudet, Tracey Lyall, and Captain Smith. There were no questions concerning this document. The grievor simply asked me to consider it as part of its argument concerning the confidentiality of mediation and the fact that the termination of his employment had been based on improper considerations.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-59", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 128", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to the agreement to mediate, the information obtained during the mediation process was to be limited to a select group of persons who agreed to respect its confidentiality. Apparently, the employer’s representatives did not take their undertaking as seriously as they should have, nor did they apprise Captain Hainse of this agreement when he participated in the last mediation session. Mr. Cormier discussed and gave his opinion about the grievor’s medical condition to Captain Hainse. Captain Smith gave his opinion about the lack of results about a now-lengthy mediation process. Ms. Lyall, who was the manager of human resources, apparently communicated sufficient information to Ms. Stringer, another human resources officer who does not appear as having been present at the mediation, to allow her to prepare a detailed briefing note for the Rear Admiral. In addition, Mr. Stewart, Ms. Stringer’s supervisor, was also apprised of mediation information since he participated in the discussions with Captain Hainse and Rear Admiral McNeil about the termination of the grievor’s employment.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-60", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 129", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "As a consequence of the breach of confidentiality during the mediation process, the employer evidently relied upon key information that should not have been relevant to its recommendation to terminate the grievor’s employment: Dr. Rosenberg’s medical opinion to the union dated October 25, 2004 about the grievor’s medical condition and return to work prognosis: without this information, the employer could not have asked for an “update” and would have had to consider independent and current medical information before terminating the grievor. The back-to-work opportunities that were developed during the mediation process (the 10 options): without this information, the employer would have had to examine and present specific options to the grievor in view of accommodating his return to work (see next section of these reasons). Dr. Rosenberg’s assessment of the grievor’s aptitude to undertake proposed back-to-work opportunities: this assessment given in 2004, was neither requested nor updated in Dr. Rosenberg’s opinion given on June 6, 2006. The grievor’s wish to work with a different supervisor: this consideration would not otherwise have been known to the employer and should not have influenced a decision not to offer the grievor an accommodation opportunity before terminating his employment. The grievor’s decision not to accept the proposed back-to-work opportunities: the employer anticipated and precipitated the grievor’s decision by giving him an ultimatum on the last day of mediation. This ultimatum was used as a justification to terminate of the grievor’s employment.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-61", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 129–130", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The participation of the grievor’s spouse in the mediation process: the briefing note states that the ultimatum was presented to the grievor’s spouse as it was presented to the grievor and his representatives. This consideration is not only immaterial but a most egregious breach of the grievor’s right to the confidentiality of her role during the mediation process. The length of and the apparent lack of progress of the mediation process: these considerations were irrelevant to the employer’s termination process.\n\nIn order to determine whether the employer had other independent evidence that would otherwise support a recommendation to terminate the grievor’s employment, I read the briefing note while redacting the portion concerning the details of the mediation. This exercise yielded the following information: the grievor’s work background (paragraph 3); the grievor’s harassment complaints, their outcome and the fact that a grievance was filed on January 17, 2002 (paragraphs 4 to 13); the fact that Treasury Board requires a current medical opinion from the grievor’s physician (paragraph 15); the physician’s medical opinion which is summarized as follows: “ that the non-resolution of workplace issues which led to Mr. Pepper’s symptomatology continues to place a heavy burden on the augmenting and sustaining of that symptomatology” (paragraph 15); that the grievor has been receiving worker’s compensation benefits since 1999 (paragraph 16).", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-62", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 131–132", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Without the key information obtained during mediation discussed earlier, the above information is insufficient to motivate the termination of the grievor’s employment. The medical information is a case in point. In his opinion to the union on November 2, 2004, Dr. Rosenberg states among other things that the grievor is in a position to return to the workplace within three months if workplace issues are resolved; he also states that the grievor could sustain extensive retraining with little impact on his health. These two essential points concerning the possibility of the grievor’s return to work were not put forward in the briefing note to the Rear Admiral.\n\nIt is also my view that the following statements in the briefing note to the Rear Admiral regarding the outcome of the mediation process were prejudicial to an independent review of the reasons for the termination of employment: “Protracted mediation efforts failed on 28 April 2006 without a potential return to work solution or a voluntary severing of the employment relationship.” (paragraph 1) “Mr. Pepper and his representatives (legal council (sic), union and spouse) were advised that if mediation were unsuccessful a recommendation would be made to terminate his employment.” (paragraph 1) These two statements imply that the grievor was at fault for the length and failure of the mediation process and that the grievor knew and had accepted the consequences of the termination of the mediation process and consequent loss of employment.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-63", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 133–135", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In light of these observations, it is clear that the employer did not treat the mediation process as a means of resolving the precise dispute for which it had been set up (PSSRB File no. 166-02-31912), namely the harassment grievance. Rather the mediation process was confused as merely a step within an entirely different process, namely, the decision to terminate the grievor’s employment.\n\nThe grievor relied on the confidentiality of the mediation process to make disclosures about his health, his personal life and his interests and limitations in returning to work. He had every expectation that this information would remain confidential among the mediation participants and not be used for other purposes.\n\nOn the basis of the evidence and in particular Captain Hainse’s testimony, it is clear that mediation discussions were disclosed to persons outside the mediation process and the content of these discussions was used for a purpose other than the resolution of the grievor’s harassment grievance. In light of the public policy considerations of fostering good labour-management relations and providing employees with appropriate procedures and outcomes to their disputes, the breach of confidentiality within the mediation process was a violation of the grievor’s right to engage in a discrete dispute resolution process to resolve his harassment grievance separate from another independent and unrelated process to terminate his employment. It was disingenuous for the employer to use a voluntary process set up to resolve one issue as a stepping stone to further a purpose that clearly was not the grievor’s and to achieve a result that was never meant to be part of the process.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-64", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 136–138", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Accordingly, the termination of the grievor’s employment based on medical and other information obtained within the mediation process cannot be sustained.\n\nThe grievor argued that the employer did not follow the department’s termination procedure entitled “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance”, namely, that following the medical assessment, an employee’s manager must schedule a meeting to inform the employee of the results of the medical assessment and their consequences for his/her job, during which the employee may be accompanied by a union representative. In particular, the employer did not present him, independently from the mediation process, with other options such as resignation, voluntary demotion, or retirement on medical grounds (if eligible) before deciding to terminate his employment as provided under this policy.\n\nAlthough the “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance” represent an objective and independent process with respect to the termination of an employee for medical reasons, they are not part of the collective agreement, nor are they conditions that have been negotiated with the bargaining agent. Accordingly, the same observations as those that applied to the enforceability of the harassment policy apply here, that is, the non-observance of these guidelines is not an adjudicable right.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-65", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 139–140", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "However, the human rights of a disabled employee must be considered before an employer can terminate his employment. Paragraph 3(1) of the Canadian Human Rights Act prohibits discrimination on the basis of disability. Sub-paragraph 7(a) provides that it is a discriminatory practice, directly or indirectly, to refuse to continue to employ an individual on the basis of a prohibited ground of discrimination. Subsection 208(2) of the PSLRA provides for the adjudicator’s authority to decide matters related to human rights.\n\nIn Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at page 174, the Supreme Court of Canada defined discrimination as follows: … [A] distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society…", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-66", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 141–142", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employee who alleges discrimination has the onus of proof to make out a sufficiently strong case of discrimination (also known as a prima facie case of discrimination), based on facts that, if believed, justify a finding of discrimination in the absence of the employer’s response (see Ontario Human Rights Commission v. Simpson Sears Ltd. [1985], 2 S.C.R. 536 (O’Malley decision) at para. 28). In this matter, the test in O’Malley, requires that the grievor establish that he has a disability captured by the Canadian Human Rights Act, that he suffered adverse treatment in the workplace and that this disability was a factor in the adverse treatment he received. The grievor’s disability need not be the only factor, or even the primary factor for discrimination to be established. The burden then shifts to the employer to establish, on a balance of probabilities, that its decision or policy did not constitute discrimination because the disability was not capable of being accommodated in the workplace without undue hardship.\n\nThe employer has argued that the grievor’s medical condition does not support returning him to work with accommodation because the workplace issues that are the source of his illness will never be resolved to his satisfaction. The employer has also argued that all leave is of a temporary nature and that the employer is entitled to terminate the employment of an employee who cannot return to work. Both these arguments concede that the grievor’s mental disability was a factor in the decision to terminate his employment. Consequently, I find that a sufficiently strong case of discrimination has been established. The balance of this decision deals with whether or not the employer met its duty to accommodate the grievor to the point of undue hardship.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-67", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 143–144", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "To meet the accommodation requirements of an employee’s needs under paragraph 15(2) of the Canadian Human Rights Act, the employer must establish that accommodating those needs would “impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.” In Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at page 521, the Supreme Court held that the factors that weigh in favour of a finding of undue hardship must be balanced against the right of an employee to be free from discrimination. Thus, a balancing process requires an assessment on a case-by-case basis of the severity of the hardship against how substantial the resulting benefits will be to the employee.\n\nIn British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (BCGSEU), [1999] 3 S.C.R. 3 (“Meiorin”), the Supreme Court of Canada set out three elements that must be present for an employer to sustain a defence of a so-called bona fide occupational requirement (paragraph 54): The standard was adopted for a purpose rationally connected to the performance of the job; the standard was adopted in good faith and that it is tied to a legitimate work-related purpose; the standard is reasonably necessary to the accomplishment of the legitimate work-related purpose.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-68", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 145", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In this case, the employer’s argument is that the employee had been absent for an extended period and his return to work was unlikely in the foreseeable future. This standard is also set out in its “Guidelines for Demotion or Termination or Employment for Reasons Other than Misconduct or Unsatisfactory Performance.” There can be no dispute that an employer cannot be required to keep an employee indefinitely who is incapable of performing his duties, since the employee is not fulfilling his part of the employment contract. In this sense the employer’s attendance standards are rationally connected to the performance of the grievor’s job. The grievor did not contest the employer’s attendance standards as rationally connected to the performance of his job, nor was there any suggestion that this standard was not adopted in good faith and for the fulfillment of a work-related purpose. Therefore, the essence of the grievor’s case is that the employer has failed to show that the attendance standard as applied to his case is reasonably necessary, because the employer has not demonstrated that accommodating the grievor would cause the employer undue hardship.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-69", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 146", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Under the third step of the Meiorin analysis, the employer must establish that it could not accommodate the grievor to the point of undue hardship. Both the grievor and the employer must participate in the search for an accommodation, although this is the primary responsibility of the employer. This inquiry is an individual one in each case (paragraph 63). The employer’s standard must take into account “the unique capabilities and inherent worth and dignity of every individual” (paragraph 62). Moreover, tribunals “should be sensitive to the various ways in which individual capabilities may be accommodated” and “should be innovative yet practical when considering how this may best be done in particular circumstances” (paragraph 64). 147 Meiorin sets out a number of important elements that are useful in determining the type of accommodation needed by an employee, such as whether the employer has looked at alternate approaches that would not have had a discriminatory effect on the employee, whether in light of its legitimate work-related purpose, it was necessary for all employees to meet this standard, or whether there was a way for the employee to do the job that is less discriminatory (paragraph 65). Meiorin, therefore, requires the employer to diligently examine all the possibilities of adapting the workplace to enable the employee to work. A mere statement without supporting evidence or a generalized view that finding such employment is not possible does not meet the standard of undue hardship.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-70", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 148–149", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer relied on the decisions of this Board and the Federal Court of Appeal in Scheuneman in support of its position. That case, however, is clearly distinguishable on its facts as there was a medical report stating that the grievor could not return to work in the foreseeable future, and the employee stubbornly refused to return to work.\n\nBefore taking the drastic step of terminating the grievor’s employment on the basis that he was no longer able to attend work, the employer has the obvious duty to establish the exact medical condition of the employee and a prognosis that he will be unable to return to work in the foreseeable future. In the instant case, the employer had no such conclusive evidence. The evidence is irrefutable that the employer made up its mind to terminate the grievor’s employment before obtaining any evidence of his complete disability. It relied on a medical opinion given in 2004 obtained during the mediation process with respect to another grievance and the opinion of another manager. The request for an “update” of the grievor’s medical after the ultimatum was given to him implies an administrative exercise to justify the decision already taken to terminate the grievor’s employment. There is no evidence that this medical update was obtained with a view to attempting to accommodate the grievor’s return to work.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-71", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 150–152", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "But more significantly, after obtaining the medical update, the employer rushed to a decision without giving any consideration to the possibilities that were being suggested. Dr. Rosenberg did not testify or state in his November 2, 2004 opinion that the grievor could not return to work; to the contrary, he stated that the grievor could return to work within three months if workplace issues were ultimately resolved. He also provided recommendations for the grievor’s accommodation, including retraining. Neither of these recommendations were insurmountable obstacles to accommodating the grievor’s return to work.\n\nGiven that the grievor had already been absent for seven years, no adequate reason was advanced to justify why the employer could not take a few more weeks to reconsider its position. Captain Hainse was apparently concerned that Dr. Rosenberg might be unable to give an opinion because he was to take an extended leave. The relevance of this consideration with respect to the precipitous decision to terminate the grievor is unexplained. Dr. Rosenberg was not the only physician who was treating the grievor and who could have given a medical opinion about the prognosis for his return to work.\n\nWhen asked about the urgency of recommending the termination of the grievor’s employment, Captain Hainse’s response was that the decision was long overdue. All the options had been presented during the mediation process. The fact that the grievor’s “issues” remained unresolved was not good for the morale of the unit. Captain Hainse was concerned about the grievor’s dedication to his work and the perception of other employees about a lack of leadership that would affect the efficiency of the unit. Yet he admitted there had been no complaints from other employees about these concerns.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-72", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 153–154", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "An employer’s reasons for not considering accommodation must be supported by reliable, objective and persuasive evidence that its concerns are well founded. Anticipated hardships based on speculative concerns of certain adverse consequences are insufficient. Meiorin is unambiguous that the aim of human rights legislation is to have employers direct their creative thoughts to positive ways to achieve successful accommodations. An employer’s efforts must include an evaluation of the process by which it reached its decision not to accommodate. The rejection out of hand of any consideration of accommodation, without giving the matter adequate reflection or attention or exploring the possibilities, can hardly be described as having taken adequate steps to accommodate.\n\nIn this matter, other than the so-called 10 options put forward during the mediation process in 2004, there is no evidence that the employer applied itself to diligently examining all the possibilities of adapting the workplace to enable the grievor to work after receiving Dr. Rosenberg’s medical opinion of June 8, 2006. Captain Hainse’s reasons for terminating the grievor are not supported by any concrete evidence of any hardship and are not persuasive. Had the employer truly been concerned with accommodating the grievor’s return to work, it would have become knowledgeable about the grievor’s disability as it presented itself in June 2006 and examined the possibilities of accommodation as they existed at that time. It would not have caused undue hardship for the employer to provide the grievor’s psychiatrist with specific information about the jobs being proposed, the qualifications for these jobs relevant to the medical disability, and to request his opinion on this basis.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-73", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 155", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Nor did the employer engage in meaningful discussions with the grievor about the consequences of the most recent medical information and the recommendations being made to determine if there was any work that he could perform that would meet his restrictions. Before terminating his employment, the employer had an obligation to ensure that the grievor fully understood the content of the medical opinion, to clarify the grievor’s position with respect to this latest information, and to clearly set out the consequences of not returning to work. It would have created no hardship for the employer to have engaged in such discussions. There is also no evidence that providing training to the grievor as suggested by Dr. Rosenberg would have created undue hardship. Even though it was known that the grievor’s supervisor was not interested in continuing his supervision, the employer persistently refused to at least explore the possibility of having the grievor report to a different supervisor.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-74", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 156–157", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Moreover, the recommendation for terminating the grievor’s employment is attributed to his inability to report to work because of his illness. The briefing notes omit all reference to Dr. Rosenberg’s opinion about the three-month prognosis for the grievor’s return to work or the fact that he could be retrained. The omission of such statements was misleading and prejudicial to the grievor given that there was no complete medical information attached to the recommendation for termination. It is particularly telling that medical information is buried in one sentence in paragraph 15 that is overshadowed by the 14 previous paragraphs that refer extensively to the grievor’s history, his complaints, the fact that the employer’s proposals for his return to work were not accepted and the grievor’s apparent responsibility for the lengthy mediation process and its outcome. Some of the facts in the briefing note are mistaken and there are omissions, such as the findings of the harassment complaint investigation team. The insistence on irrelevant and misstated facts, rather than on key medical information and the consequences of this information, suggest that accommodating the grievor’s medical condition was secondary to the determination to terminate the grievor’s employment.\n\nTherefore, I come to the inevitable conclusion that the employer decided to terminate the employment of the grievor without taking the steps to make an informed decision. Namely the employer did not seek out useful information from Dr. Rosenberg to assist in its decision-making, nor did it attempt to determine if there was a suitable job available that could accommodate his return to work.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-75", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 158–159", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer’s arguments suggest that the length of the absence was in itself an accommodation since the grievor was unable to return to work for a lengthy period. While the employer provides sick leave, leave without pay and disability benefits as part of its compensation package, doing so does not mean that it fulfilled its obligation to accommodate the grievor to the point of undue hardship in the circumstances of this case. There is no indication that the employer was in regular contact with the grievor during his absence or that it committed financial or other resources to accommodate the grievor outside these benefits. In fact, the grievor was receiving compensation for a work-related injury. The employer did not seek up-to-date medical information about the grievor for two years before its decision to terminate his employment. Given the size of the employer’s organization, its resources and expertise, I have some difficulty understanding why the employer did not take a greater initiative in suitably accommodating the grievor’s return to work before the definitive decision to terminate his employment. An ultimatum based on a lengthy mediation process unrelated to ending the grievor’s employment is not an accommodation argument. The grievor was not entitled to a perfect solution, but he was entitled to a full consideration of his restrictions and how they could be accommodated within the employer’s policies and the jobs available.\n\nOn the basis of these findings, I conclude that the employer failed to accommodate the grievor to the point of undue hardship.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-76", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "paras 160–169", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The grievor requested that I award damages related to the long-lasting impact of the employer’s actions on his career and benefits and the aggravation of his medical condition with respect to his harassment complaint and grievance.\n\nAs I have dismissed the grievance, there are no damages owing.\n\nThe grievor requested that I exercise my discretion under section 226(1)(g) of the PSLRA and award damages in the amount of $20,000 for his pain and suffering as a result of this ordeal and the violation of subsections 52(1)(b) and 53(2)(e) of the Canadian Human Rights Act, because the termination of his employment was discriminatory and the employer acted recklessly in not considering accommodation.\n\nIt is my finding that the grievor should also be entitled to a remedy with respect to the negative impact of the employer’s breach of the confidentiality of the mediation process.\n\nMy decision with regard to a remedial award is taken under reserve. The parties are given 60 days to come to an agreement concerning such indemnity as may be owed to the grievor. Should the parties be unable to come to an agreement, I will receive their representations on a remedial award by an exchange of written submissions, no later than 90 days following the issuing of these reasons.\n\nFor all of the above reasons, I make the following orders:\n\nThe application for the extension of time relating to PSLRB File No. 568-02-154 is closed.\n\nThe grievance relating to PSSRB File No. 166-02-31912 is dismissed.\n\nThe grievance relating to PSLRB File No. 566-02-767 is allowed.\n\nThe grievor is reinstated in the position he held at the time of his termination and entitled to benefits and wages, if that is the case.", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358180-77", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 8", - "act_short": "Pepper", - "act_name": "Pepper v. Treasury Board (Department of National Defence)", - "section": "", - "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", - "marginal_note": "para 170", - "heading": "Discipline and termination; frequently-cited principles on just cause", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I retain jurisdiction on the issue of a remedial award with respect to PSLRB File No. 566-02-767 for a period of 90 days. January 28, 2008. Michele A. Pineau, adjudicator", - "current_to": "2008-01-28", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" - }, - { - "id": "fpslreb-358097-1", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 1–3", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On July 12, 2005, Stephen Bradley Richmond (“the complainant”) filed a complaint under paragraph 190(1)(e) of the Public Service Labour Relations Act (PSLRA) against the Correctional Service of Canada (CSC or “the respondent”).\n\nThe complainant is a correctional supervisor for the CSC at Bowden Institution in Alberta. His position was classified at the CX-03 group and level at the time he filed his complaint. His complaint relates to the CSC’s failure to respect chapter 4 of the Treasury Board Secretariat’s (TBS) Personnel Management Manual entitled Classification Grievances Policy (Exhibit G-1) and the Classification Grievance Procedure issued by the Canada Public Service Agency (CPSA) (Exhibit G-3, a supplement to the TBS’s policy cited above). Both documents provide that a department must respond to a classification grievance within 60 days. The complainant submitted his classification grievance on October 15, 2003, and the CSC has not yet responded. His complaint, as submitted to the Public Service Labour Relations Board (“the Board”) using its Form 16, reads as follows: The Correctional Services [sic] of Canada has not adhered to the policy put for [sic] by the Treasury Board of Canada Secretariat, specifically, Chapter 4 – Classification Grievance Policy, i.e.: POLICY REQUIREMENTS The Deputy Head or Nominee must respond to the Grievance in writing within 60 working days after it is received by the immediate supervisor or local Officer-in-Charge. If the deadline is extended by mutual agreement, such agreement Must [sic] be confirmed in writing between the Deputy Head or nominee and the Employee’s representative, if applicable.\n\nIn that same complaint form, he gave the following statement of the acts and omissions complained of: [Sic throughout]", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-2", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 4–5", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant requested the following corrective action:\n\nThe respondent conceded that the complainant did not get a timely response to his classification grievance, and it has apologized in writing to the complainant for that omission which was the result of several factors. More than 300 classification grievances were filed. Employees had also filed job-content grievances. The job-content grievances had to be resolved before the classification issues could be addressed. All of the job-content grievances were resolved in January 2007. The committee that was going to address the classification grievances was convening the week of this hearing (i.e., the week of January 14, 2008).", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-3", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 6–7", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The respondent raised several preliminary objections regarding my jurisdiction to hear this complaint. Its first objection was that paragraph 190(1)(e) of the PSLRA, on which the complainant bases his complaint, cannot apply to this matter. The purpose of that provision is to grant the Board the authority to inquire into complaints that the employer or the employee organization failed to comply with section 117 of the PSLRA which deals with the duty of the employer and the employee organization to implement the collective agreement. The complainant’s concerns are not related to that subject. He is complaining that the CSC failed to respect the TBS’s policy that provides that a department must respond to a classification grievance within 60 days. A breach of policy is not the same as a failure to implement the collective agreement as contemplated by section 117 of the PSLRA. The Agreement between the Treasury Board and the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN expiring May 31, 2010, (“the collective agreement”) (Exhibit G-2) does not refer to that policy. There is therefore no link to the collective agreement and consequently no link to section 117 or paragraph 190(1)(e) of the PSLRA. The complaint must therefore be dismissed for lack of jurisdiction.\n\nThe respondent argued that the situation might have been different under the Public Service Staff Relations Act (PSSRA), the predecessor to the PSLRA. Paragraph 23(1)(d) of the PSSRA provided that the Public Service Staff Relations Board (PSSRB) could inquire into complaints relating to a failure to comply with any regulations that the PSSRB made respecting grievances. The new Act does not contain such a provision.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-4", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 8–9", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "It was also the respondent’s view that the complainant cannot rely on paragraph 190(1)(e) of the PSLRA since he is not a party to the collective agreement, nor is he covered by the collective agreement. The complainant occupies a managerial position that has been excluded from the bargaining unit. He is not a party to the collective agreement, and it does not apply to him.\n\nAnother objection relates to timeliness. Subsection 190(2) of the PSLRA provides that the complaint must be made to the Board within 90 days after the date on which the complainant knew, or ought to have known, of the action or circumstances giving rise to the complaint. In this case, the complaint is based on the respondent not complying with the TBS policyon classification grievances that provides that the employer must respond to a classification grievance within 60 days. The 61st day after the presentation of the grievance is when the CSC failed to respect the policy. That is the date from which the complainant knew or ought to have known that the policy had been breached but he only filed his complaint on July 12, 2005, well after that 90-day period specified in the PSLRA had expired. Therefore the complaint is untimely, and the case law is clear that the Board has no discretion in this matter. On that point, the respondent referred me to Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78. In that case, the employer had mistakenly identified the employee’s position as excluded and informed him of that error six months later. The employee filed an unfair labour complaint regarding that matter almost four years later. The Board decided that the complaint was untimely since the 90-day time limit began when the complainant was apprised of the error regarding the status of his position.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-5", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 10–13", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The respondent made another preliminary objection. It was of the view that there was no redress available for the complainant since the Board has no authority over classification matters.\n\nThe respondent’s final preliminary objection was that the complaint is moot. The complainant’s concern relates to the classification level of his position. However, the classification grievance committee met the week of this hearing to address that very issue, and it has the authority to address classification issues, not the Board. The complainant could obtain redress from that committee. The respondent agreed that the convening of that committee did not happen soon enough, but it had to deal with the job-content grievances before dealing with hundreds and hundreds of classification grievances.\n\nThe complainant maintained that I have jurisdiction to hear this complaint. The complainant is an employee, since the definition of that term found in the Classification Grievances Procedure (Exhibit G-1)provides that an “employee” includes a person who occupies a managerial position.\n\nClause 20.02(a) of the collective agreement provides that: 20.02 Subject to and as provided in Section 208 of the Public Service Labour Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause 20.05 except that: (a) where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaint, such procedure must be followed,", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-6", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 14–17", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The collective agreement suggests that other procedures are available to address the complainant’s concerns. The complaint procedure set out in paragraph 190(1)(e) of the PSLRA is the “administrative procedure” referred to in clause 20.02(a) of the collective agreement.\n\nThe respondent was wrong to assert that the complainant was not covered by the collective agreement. The provisions of that agreement apply to him even though he is in an excluded position.\n\nThe complainant maintained that his complaint was timely. He did not agree that the 90-day time limit set out in subsection 190(2) of the PSLRA began on the 61st day after he filed his classification grievance, as the respondent contended. The complainant tried repeatedly through the years to get information regarding his classification grievance, but he never received clear answers. He received non-specific responses, which led him to believe that things were moving along. He gave the CSC the benefit of the doubt because it had to process 302 grievances. He finally realized that things were not progressing, so he decided to file a complaint. The period for filing the complaint should have begun when he finally realized that the CSC was not processing his classification grievance.\n\nWith respect to redress, the complainant argued that he knows that the Board does not have jurisdiction over classification matters. He is not asking the Board to hear the classification grievance. The redress measures that he has asked for in his complaint touch on different matters.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-7", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 18–23", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant also disagreed with the respondent’s contention that the complaint was moot because the classification grievance committee was meeting on the same week as this hearing. There should be a consequence to the CSC’s breach of policy. There are still matters to debate. He added that it was a strange coincidence that after waiting four years, the CSC finally decided to hold a classification committee meeting on the same week as the hearing into this complaint.\n\nThe complainant also argued that the CSC is precluded from contending that I do not have jurisdiction to hear this matter, because it agreed to mediate the complaint in January 2007.\n\nThe respondent argued that that there is no nexus between the complaint and paragraph 190(1)(e) of the PSLRA.\n\nThe respondent was of the view that clause 20.02(a) of the collective agreement is not relevant to this case. It deals with grievances and how those grievances should be dealt with if there is another administrative procedure provided by another Act of Parliament to deal with the employee’s concerns. Article 20.02 specifies that it does not apply to classification grievances.\n\nAs for the definition of “employee,” paragraph (i) of that definition, in section 2 of the PSLRA, specifies that that term does not include a person who occupies a managerial position with respect to the Part of the PSLRA that applies to complaints.\n\nThe respondent contented that it did not waive its right to contest my jurisdiction by attempting to mediate this complaint in 2007. The mediation was made on a without-prejudice basis.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-8", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 24–29", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I indicated to the parties that I would take the preliminary objection under consideration and would render a ruling on that objection when I rendered my decision on the merits of the complaint. I then asked the parties to proceed with the evidence on the merits of the complaint.\n\nThe complainant gave testimony and filed four exhibits. The employer also filed four exhibits.\n\nIn his testimony, the complainant gave a brief account of his classification grievance. In June 2003, the CSC published the results of a classification review regarding the correctional supervisor position. The complainant did not agree with the results of that review so on October 15, 2003, he submitted a classification grievance to the CSC. After he presented the grievance, he contacted the department on many occasions to inquire on the status of his grievance but never got any response.\n\nThe complainant also contacted Mr. Guy Lauzon, Member of Parliament and official critic for the Conservative Party of Canada for Treasury Board matters. Mr. Lauzon relayed the complainant’s concerns to the President of the Treasury Board, the Honourable Reg Alcock.\n\nThe complainant explained that his complaint relates to the CSC’s lack of response to his classification grievance. More specifically, the CSC neglected to respect the time frames set out in the collective agreement and the policies issued by the TBS and the CPSA on classification grievances.\n\nThe complainant testified that in May 2005, he contacted Carol Richards, who worked at the CSC. She told him that she had just received the classification portfolio. She apologized and informed him that nothing had been done to that date. That is when he decided to submit his complaint.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-9", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 30–31", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant stated that a hearing for this complaint under paragraph 190(1)(e) of the PSLRA was scheduled for January 10, 2007, in Calgary. The hearing did not proceed since both parties agreed to hold a mediation session. An agreement was reached and he and the CSC signed a Memorandum of Agreement (MOA) (Exhibit G-4) on January 10, 2007. The respondent did not object to the complainant tabling the MOA but asked that in my decision I refer only to the parts that are necessary to understand this complaint and my decision. Suffice it to say that the CSC apologized to the complainant for the delays in responding to his classification grievance. The MOA also provided that the complaint was adjourned until June 30, 2007, and that the complainant could reactivate the complaint after that date. Since the complainant was of the view that the CSC had not respected all of the terms of the MOA, he reactivated the complaint.\n\nThe complainant testified that the CSC identified two persons who could provide information about his job-content and classification grievances: Marc Seguin, Team Leader, Labour Relations, at National Headquarters, and Bonnie Wellman, Director, Organizational Design and Classification, also at National Headquarters. The complainant contacted Mr. Seguin, but the latter could not provide any information on the status of the complainant’s classification grievance. The complainant also contacted Ms. Wellman, but she never responded. He received a phone call from Lucie Patrick, Acting Director, Organization Design and Classification, CSC, who said that she was not at liberty to speak about the grievance because of the MOA.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-10", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 32–35", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant testified that some of the undertakings of the MOA had been met. He did receive an apology from the CSC (Exhibit G-4). The job-content grievances have now been reviewed but the CSC did not respect its promise to keep him informed of the development of his classification grievance. It did not communicate with him regarding that matter and ignored his requests for information.\n\nThe complainant stated that he was aware that a classification grievance committee was holding meetings the same week as this hearing. That committee dealt with a different matter. The issue before that committee was his job classification, while the issue before me was the CSC’s breach of the policies regarding the time frames for responding to classification grievances.\n\nTurning to another issue, he stated that he was an excluded employee but that the CSC elected to apply the collective agreement to excluded correctional supervisors who held managerial positions.\n\nIn cross-examination, the complainant restated that he was part of the bargaining unit. The respondent’s counsel then presented the complainant with a letter addressed to him and signed by Lynne Brown, Manager, Employee Relations, CSC (Exhibit E-1). He recognized the letter. She pointed out to him that the letter, written sometime in 1997 (the exact date is unreadable), stated that the PSSRB had confirmed the exclusion of his position from his bargaining unit and that his union dues deductions would cease on May 1, 1997. The complainant answered that he believed that he paid union dues until 1998, but not after that. However, in his view, the union still accepted him as a member. His understanding was that the provisions of the collective agreement applied to him.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-11", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 36–40", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In answer to another question put to him by the respondent’s counsel, the complainant stated that his responsibilities included managing and supervising officers at the CX-01 and CX-02 groups and levels. He was responsible for providing the first-level response to officers’ grievances of those groups and levels under his direction and was involved in any disciplinary action directed against them.\n\nThe respondent’s counsel then presented the complainant with an email he sent to Mr. Lauzon on March 21, 2005 regarding his classification grievance (Exhibit E-2). The complainant recognized the email and agreed with the respondent’s counsel that at that time, he had been frustrated about the lack of response to his grievance.\n\nThe respondent’s counsel asked the complainant to indicate the provision of the collective agreement that addresses the issue of time frames for responding to a grievance. The complainant could not direct her to any specific provision.\n\nThe respondent’s counsel submitted as evidence an email that Allan Briere, his current representative, sent to Ms. Wellman on February 22, 2007 (Exhibit E-3). The complainant was copied on the email. The complainant acknowledged that on seeing the email, he understood that the job-content grievances had to be decided before the classification grievances could be processed.\n\nThe respondent’s counsel asked the complainant if Mr. Briere had been his representative during the discussions that led to the MOA. The complainant answered affirmatively. The respondent’s counsel then tabled an email from Mr. Briere to Ms. Patrick sent on August 31, 2007 (Exhibit E-4) regarding the outstanding classification grievances.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-12", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 41–44", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant stated that he had spoken to Ms. Patrick twice andhad discussed his classification grievance three times in 2007 with Kenneth A. Graham, Employer Representation Advisor, Labour Relations Operations, TBS.\n\nThe complainant also said during cross-examination that he had been invited to make submissions to the classification grievance committee that was meeting that week to examine his classification grievance.\n\nIn redirect, the complainant’s representative was about to ask a question about the last contract negotiations and about the issue of whether the complainant was covered by the collective agreement. The respondent’s counsel objected to that question on the ground that it did not arise out of her cross-examination and that the complainant was splitting his case. I allowed the question, because it could be relevant to the issue of whether the collective agreement applied to the complainant, on the condition that the respondent’s counsel had the opportunity to cross-examine the complainant on his answer.\n\nThe complainant’s representative asked the complainant whether it was widely believed in the last contract negotiations that officers at the CX-02 group and level were paid more than correctional supervisors at the CX-03 group and level. The complainant answered that officers at the CX-02 group and level were paid more than their supervisors and that the collective agreement applied to supervisors working at the CX-03 and CX-04 groups and levels.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-13", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 45–48", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant argued that this was a clear case of abuse of authority through irresponsible and unprofessional disregard for policy and the law. The complainant does not contest the employer’s right to make policy; what he contests is the fact that the CSC selectively failed to apply parts of the employer’s policy on classification grievances.\n\nThe CSC classified the correctional supervisor position and subsequently denied the persons affected by that decision their avenue of redress. The CSC failed to process the classification grievances within the time frames mandated by the TBS in the Classification Grievances Policy (Exhibit G-1) and mandated by the CPSA in the Classification Grievance Procedure (Exhibit G-3). Both documents mandate a 60-day period in which the CSC is to acknowledge receipt of classification grievances. In the case of the complainant, more than four years have passed. Clearly, that period of time exceeds the 60-day period prescribed by those policies. Simply put, the CSC did not do what it was mandated to do by law.\n\nThe complainant added that the CSC has been regularly reminded throughout that four year-period of their lapse in judgment and their inaction regarding the processing of 302 classification grievances.\n\nGiven the complainant’s reminders of its outstanding obligation during that four year-period, the CSC’s disregard for policy can only be intentional and cannot be considered an error or omission. CSC disregarded the employees’ avenue of redress for classification processes. The CSC’s apology showed that it was wrong to act in that manner.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-14", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 49–51", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complainant argued that being copied on the emails sent to his representative (Exhibits E-3 and E-4) is not significant and does not amount to keeping him informed of the progress of his classification grievance.\n\nThe respondent pointed out that the CSC apologized for the delays in answering the complainant’s classification grievance. The apology resulted from the MOA.\n\nThe respondent contended that the complainant was wrong in stating that he was left out of the loop. Ms. Wellman and Mr. Seguin were identified as contact persons. As indicated in the email submitted as evidence (Exhibit E-3), Ms. Wellman also identified Ms. Patrick as a contact person. The complainant was copied on the emails that his representative sent regarding the classification grievances (Exhibits E-3 and E-4). The complainant testified that he spoke with Ms. Patrick regarding his grievance. The information may not have been as complete as the complainant wanted, but it is not true that he was completely shut out of the process.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-15", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "para 52", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The respondent’s counsel took the position that paragraph 190(1)(e) of the PSLRA cannot apply to the complainant’s complaint since he is an excluded employee; therefore, he is excluded from membership in the union and from application of the collective agreement. In his testimony, he admitted that he ceased paying union dues in 1998. She asked me to take judicial notice that bargaining agents require members to pay union dues. The complainant is excluded because he holds a managerial position; he is the person identified by management to provide the first-level response to grievances presented by CX-01 and CX-02 officers under his direction, and he has the authority to discipline them. Since he is not covered by the collective agreement, his complaint is inadmissible. The respondent’s counsel referred me to Brown and Beatty, Canadian Labour Arbitration, 3rd ed., paragraph 2:3110, where the authors state that generally speaking, only the parties to a collective agreement may take a grievance to arbitration.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-16", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 53–54", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The respondent argued that the remedies that the complainant had asked for at mediation have all been granted. The first was that the department apologized for the delay in responding to his classification grievance. The department has offered that apology. Another area of concern was the job-content grievances. The CSC has now processed those grievances. The CSC has also kept the complainant informed of the status of his classification grievance, although not to his satisfaction. The delays are regrettable, but things are finally moving along. The classification grievance committee met the week of the hearing and the complainant’s grievance was to be addressed at that meeting. Some CX-03 positions have already been reclassified. The respondent referred me to Buchanan v. Correctional Service of Canada and Dianne Bird, 2002 PSSRB 35, where the PSSRB Chairperson decided that no further remedy was necessary in that case because the department had corrected an error it had committed in the grievance process.\n\nThe respondent was of the view that the remedies that the complainant requested in his complaint were moot. His first request was that his submission be forwarded to the Board. That has been done through this hearing. The complainant’s second request was that the Board undertake a review of his classification grievance, but the Board has no jurisdiction over classification grievances. The proper forum for review if an employee is not satisfied with the response to his or her classification grievance is judicial review. The third corrective action that the complainant sought was that he be provided with financial compensation if the Board ruled in his favour. Since the Board has no jurisdiction over the classification grievance, it cannot grant that remedy.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-17", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 55–57", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "This complaint relates to the CSC’s failure to comply withthe Classification Grievances Policy (Exhibit G-1) issued by the TBS and the Classification Grievance Procedure (Exhibit G-3) issued by the CPSA. Both require that the department respond to a classification grievance within 60 days. The complainant submitted his classification grievance on October 15, 2003, and the CSC has not yet responded, although a classification grievance committee was convened to examine his grievance on the same week as this hearing.\n\nThe complainant’s frustration is understandable. He has been waiting more than four years for a response to his classification grievance, and that matter is not yet resolved. He is right in saying that the CSC should make every effort to abide by the policies and procedures set by the TBS and the CPSA for classification grievances. However, I have no jurisdiction over the issue of the time frames for processing classification grievances set out in those two instruments, for the reasons that follow.\n\nOne of the respondent’s objections related to the subject matter of the complaint. Its view is that the failure to abide by the time frames for responding to classification grievances set out in the two policies (Exhibit G-1 and G-3) cannot form the basis of a complaint under paragraph 190(1)(e) of the PSLRA. I agree with that submission. That paragraph reads as follows: 190. (1) The Board must examine and inquire into any complaint made to it that (e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award);", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-18", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "para 58", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Sections 117 and 157 of the PSLRA read as follows: 117. Subject to the appropriation by or under the authority of Parliament of money that may be required by the employer, the parties must implement the provisions of a collective agreement (a) within the period specified in the collective agreement for that purpose; or (b) if no such period is specified in the collective agreement, within 90 days after the date it is signed or any longer period that the parties may agree to or that the Board, on application by either party, may set. 157. Subject to the appropriation by or under the authority of Parliament of any money that may be required by the employer, the parties must implement the provisions of the arbitral award within 90 days after the day on which the award becomes binding on them or within any longer period that the parties may agree to or that the Board, on application by either party, may set.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-19", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 59–60", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "A complaint made under paragraph 190(1)(e) of the PSLRA must relate either to the duty to implement the provisions of a collective agreement (section 117 of the PSLRA) or to the duty to implement provisions of an arbitral award (section 157 of the PSLRA). It is uncontested that no arbitral award was issued in this case. As for the duty to implement the provisions of the collective agreement, I was not referred to any provision of that document that would indicate that it governs classification grievances. I was, however, referred to provisions that indicate the contrary. Clause 20.02 of the collective agreement provides specifically that the grievance procedure referred to in that document does not apply to classification grievances: 20.02 Subject to and as provided in Section 208 of the Public Service Labour Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause 20.05 except that:\n\nClause 20.02(a) of the collective agreement does not have the effect that the complainant gives it. It indicates that for grievances other than those relating to classification, where there is another administrative procedure provided in any Act of Parliament to deal with the employee’s concerns, the employee must follow the procedure set out in that Act instead of the one found in the collective agreement.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-20", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 61–62", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The procedure for classification grievances, and specifically the time frames for responding to those grievances, is not set out in the collective agreement but in the Classification Grievances Policy (Exhibit G-1) issued by the TBS and the Classification Grievance Procedure (Exhibit G-3) issued by the CPSA. Paragraph 190(1)(e) of the PSLRA does not deal with the implementation of that policy or procedure but with the implementation of the collective agreement. So the complainant’s concern, which deals with the breach of those policy instruments, cannot be the subject of a complaint under paragraph 190(1)(e) of the PSLRA.\n\nI also agree with the respondent’s submission that the complainant cannot present a complaint under paragraph 190(1)(e) of the PSLRA since he is not a party to the collective agreement, nor is he covered by the collective agreement. In my view, the purpose of this provision was to give the parties to the collective agreement (i.e., the employer and the bargaining agent) a mechanism to force each other to implement the collective agreement if one party failed to do so. It is unclear whether an employee covered by the collective agreement can prevail himself of the provision but I need not decide that matter since the complainant is not covered by the collective agreement because he occupies a position which is excluded from the bargaining unit. The letter from Ms. Brown in 1997 (Exhibit E-1) indicates that the PSSRB confirmed that the complainant’s position was excluded from the bargaining unit. The complainant simply has no connection to the collective agreement or the bargaining unit.", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358097-21", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 22", - "act_short": "Richmond", - "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", - "marginal_note": "paras 63–65", - "heading": "Classification grievance in the federal public service", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Since I have decided that I do not have jurisdiction to hear this complaint because the complainant’s concern cannot be the subject of a complaint under paragraph 190(1)(e) of the PSLRA and because the complainant cannot avail himself of that provision since he is not covered by the collective agreement, there is no need to address the other preliminary objections relating to timeliness, redress and whether the complaint is moot.\n\nFor all of the above reasons, the Board makes the following order:\n\nThe complaint is dismissed. March 31, 2008 John A. Mooney, Board Member", - "current_to": "2008-03-31", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" - }, - { - "id": "fpslreb-358890-1", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 1–3", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At the time they filed their grievances in August and September 2010, Aaron Baldasaro and Vickie Thiessen (“the grievors”) were correctional officers employed by the Correctional Service of Canada (“the employer” or CSC) in the Pacific Region. Ms. Thiessen worked at the Kwìkwèxwelhp Healing Village Institution and Mr. Baldasaro at the Matsqui Institution. The grievors alleged that the employer, by offering overtime inequitably, violated clause 21.10(a) of the collective agreement signed on June 26, 2006 by the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the union”) (“the collective agreement”). Clause 21.10(a) reads as follows: 21.10 Assignment of Overtime Work The Employer shall make every reasonable effort: (a) to allocate overtime work on an equitable basis among readily available qualified employees …\n\nThe equitable distribution of overtime has been a long-standing issue between the employer and the union. As I will explain later, until November 1, 2009, overtime was distributed among readily available and qualified employees according to local procedures in each institution. The employer rescinded those local procedures on November 1, 2009 and replaced them with a standardized procedure contained in a national overtime policy (“the national policy”).\n\nThese two grievances deal with overtime distribution under the national policy. They are the first two to be heard of approximately 500 grievances referred to adjudication under the national policy. The parties selected them as test cases that will hopefully provide answers to several questions about the equitable distribution of overtime among correctional officers.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-2", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 4–5", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The parties adduced 52 documents in evidence. The grievors testified. They also called Gaelen Joe as a witness. Mr. Joe is a correctional officer at Matsqui Institution and is the local union president. The employer called John Kearney, Philippe Ariss, Randy Warren, Andrew Burke, Danielle Laberge and Andrew Marshall as witnesses. Mr. Kearney is Director of Labour Relations Policy for the CSC. Mr. Ariss is the manager of the CSC Scheduling and Deployment System (SDS). At the time of the grievances, Mr. Warren, Mr. Burke, Ms. Laberge and Mr. Marshall were in correctional manager (CM) or manager of operations positions at Kwìkwèxwelhp Healing Village or at Matsqui Institution. They were involved at the time of the grievances in scheduling employees for work, calling them for overtime, applying the national policy, or operating and using the SDS.\n\nBefore November 2009, the CSC’s institutions developed their own procedures for the equitable distribution of overtime. Most institutions offered overtime to the qualified available employee with the lowest number of overtime hours worked in the quarter or in the year. In that sense, equitability was recalculated every day. To reduce costs, some institutions offered overtime to employees at time and one-half before offering it to other employees at double time. There were other variances between local procedures across the country, but it is not useful to expand on them. On November 1, 2009, all local procedures were rescinded and replaced by the national policy.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-3", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 6–8", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to the national policy, the CMs have to control and reduce the need for overtime; give employees, whenever possible, advance notice of overtime to be worked; make every reasonable effort to offer overtime at the same group and level; minimize costs when overtime is required; and discuss overtime results with the union local representatives on a quarterly basis. The policy states that the CMs should make every reasonable effort to offer hours of overtime on an equitable basis among readily available and qualified employees. The CMs should also keep a record of all hours of voluntary overtime offered. Overtime is to be reviewed quarterly to allow for regular adjustments, as equitability is calculated over a 12-month period.\n\nMr. Kearney testified that the employer differentiates voluntary overtime from mandatory overtime. Employees are called for mandatory overtime to satisfy very specific operational requirements and at the employer’s discretion. For example, employees who are members of Institutional Emergency Response Teams (IERT) are required to work overtime with no opportunity for refusal when called as part of an IERT. Those overtime hours are recorded separately, and not used to compute and assess the equitable allocation of overtime.\n\nAccording to the national policy, the CMs consider the number of voluntary overtime hours already offered during the year when offering overtime. All hours of voluntary overtime offered and refused, offered with no answer, offered and worked, and spent on training, including IERT training, are compiled. From now on, when I refer to voluntary overtime hours offered, I mean all of those hours. However, that does not include mandatory overtime, which is compiled separately.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-4", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 9–10", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The national policy defines the equitable offering of overtime as follows: Equitable offering of overtime: means that over the fiscal year, management has made every reasonable effort to offer approximately the same amount of overtime hours to one employee as it has to other readily available qualified employees in the same work area. However, some employees may end the recording period with fewer overtime hours worked. [Emphasis in the original]\n\nMr. Kearney testified that the quarterly review period allows readjusting discrepancies that could have been generated by the national policy. When discrepancies are identified, measures can be taken to correct the situation and to offer overtime shifts to employees who have not had their fair share of overtime offers. For example, an employee who was not offered enough overtime because of his or her availability only at double time would be offered more overtime shifts after the quarterly review, to re-establish equitability.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-5", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 11–12", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to Mr. Kearney, local union presidents are supposed to receive regular monthly and quarterly reports (cumulative and non-cumulative) on the distribution of overtime among employees. Local union presidents and employees can receive other overtime reports if they require clarification. In addition, employees can ask questions of the CM in charge of scheduling or of the SDS if they believe that there has been an issue with the distribution of overtime. The grievors’ witnesses testified that it was sometimes difficult to obtain from the employer the information they needed to assess equitability in offering overtime. There were some inconsistencies in reporting formats, and there were difficulties receiving cumulative reports. For the employer’s witnesses, this was not a real problem since union officers can, at any time, ask for the report that they want.\n\nWhen the CMs need to hire officers for overtime, they input the work requirements and details of the overtime shift to be offered into the SDS. The SDS automatically produces a list of qualified officers who meet the work requirements and who have indicated their availability to work the overtime shift. The SDS list ranks the officers in the order that they should normally be called. The list starts with officers who would be paid at time and one-half. Officers who would be paid at double time are listed next. Within those two groups, officers are listed in reverse order of the number of hours of voluntary overtime offered during the year. In other words, the officer to be paid at time and one-half and with the lowest number of voluntary overtime hours offered appears at the top of the list.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-6", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 13–15", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "According to the CMs who testified, they automatically call the first officer on the list and continue until they fill the overtime needs for a shift. Mr. Kearney testified that the CMs use the SDS list as a tool to make discretionary decisions about whom to call for overtime. For Mr. Kearney, the CMs might not necessarily respect the list. The CMs who testified about it said that they respect the list order at all times.\n\nThe national policy states that local CMs are to produce quarterly reports to identify discrepancies in offering overtime. According to the national policy, the CMs are to address possible imbalances in offering overtime and may decide to prioritize employees who were not offered their share of overtime, even if additional costs may be incurred, like calling an employee on double time rather than on time and one-half. However, according to the oral evidence from the CMs at the hearing, it is not done that way at the local level. Audits or adjustments are normally not done. In fact, CMs seem to audit only on a request from an employee who feels that he or she did not receive his or her fair share of overtime or who does not understand why he or she was bypassed for overtime.\n\nMs. Thiessen input into the SDS an indication that she available to work overtime on June 22, 2010. Because of a glitch in the SDS, when the CM asked for a list of all employees available for an overtime shift, Ms. Thiessen’s name did not come up. For that reason, she was not called for that shift, even though, normally, she should have been called. She was qualified and available and had the lowest number of overtime hours worked in the year.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-7", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 16–18", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At the end of the quarter on June 30, 2010, Ms. Thiessen had been available for 15 hours of overtime. However, she was offered none. At the end of the fiscal year, she had been available for 143 hours of overtime, and she was offered none. The CM analyzed that situation and concluded that, except for June 22, 2010, each time that Ms. Thiessen was available, no overtime was offered.\n\nThe employer tried to correct its error of June 22, 2010. It offered Ms. Thiessen an overtime shift shortly after that day. She refused because she did not want to bump the next person who would have been offered that overtime shift. Later on during the same fiscal year, the employer offered Ms. Thiessen an overtime shift as an extra person on the roster at a time convenient to her and to the employer, so that her overtime shift would not impact the overtime offered to other employees. She refused that offer. She also testified that she had a very busy life with many responsibilities outside her workplace and that she could not accept the employer’s offer.\n\nIn her grievance, Ms. Thiessen asked that the employer show more transparency in the equitable offering of overtime. As a result, the employer agreed to post some information that was not posted before. However, Ms. Thiessen still believed that that was not sufficient and that more information sharing was necessary.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-8", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 19–21", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Baldasaro indicated that he was available to work overtime on the day shift of August 26, 2010. That shift started at 07:00 and ended at 18:45. Mr. Baldasaro would have been paid at double time had he worked that overtime shift. The shift was offered to “S.H.,” who was also to be paid at double time. Mr. Baldasaro believes that he should have been offered that shift because he had worked less overtime hours during the year than S.H.\n\nAccording to the information provided by the SDS to Ms. Laberge, who offered the overtime shift on August 26, 2010, S.H. had 19.75 overtime hours offered during the year, and Mr. Baldasaro had 34 hours offered. Ms. Laberge called S.H. since the SDS indicated that S.H. had less hours offered than Mr. Baldasaro. She did not verify anything else since her directive was to call officers according to their rank on the SDS screen.\n\nMr. Baldasaro adduced in evidence a document produced by the SDS that indicated that those totals, for S.H. and him, were not the number of hours of overtime worked during the year. It indicated that Mr. Baldasaro had worked 28.75 hours of overtime before August 26, 2010 and that S.H. had worked 42 hours of overtime for the same period.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-9", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 22–23", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "A third document produced by the SDS and introduced by the employer showed that, before August 26, 2010, Mr. Baldasaro had worked 19.25 hours of voluntary overtime, that he was offered and was not available for or refused an additional 14.75 hours of overtime, and that he was ordered to work 9.5 hours of overtime. That helps reconcile the two other SDS documents. The overtime hours that appeared on the SDS screen when the CM called employees for overtime on August 26, 2010 did not include the 9.5 hours of mandatory overtime worked by Mr. Baldasaro and the hours of mandatory overtime worked by S.H. However, it included the 14.75 hours for which Mr. Baldasaro was called but not available. No evidence was introduced on the number of hours for which S.H. was not available, as part of the 19.75 hours shown on the SDS screen used by Ms. Laberge.\n\nAnother SDS report adduced at the hearing by the employer showed that, between April 1, 2010 and March 31, 2011, Mr. Baldasaro was offered 104.75 hours of voluntary overtime, worked 9.5 hours of mandatory overtime and was available to work 1663 hours of overtime. In comparison, S.H. was offered 87.75 hours of voluntary overtime, worked 72.75 hours of overtime, worked 38.5 hours of mandatory overtime and was available for 592.75 hours of overtime. Mr. Marshall testified that there were not necessarily any discrepancies in those figures. The differences would most likely be explained by checking the offers of overtime for every day that overtime was worked and offered to the two officers. He admitted that that analysis was not done since nobody asked him to do it.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-10", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 24–26", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Joe testified that he does not have access to enough information and data from the employer at the Matsqui Institution to monitor and check if the employer offers overtime equitably and to make the overtime offering system work fairly and smoothly. The employer’s witnesses testified that the union or any employee can obtain all the information they want to monitor whether overtime is offered equitably. The employer has never refused to provide the information requested by the union.\n\nMs. Thiessen was not offered overtime on June 22, 2010 because of an error in the SDS. The error was never corrected, and at the end of year, Ms. Thiessen had not worked any overtime even though she had been available for 143 hours of overtime. The principle of equitability was broken. Further, the employer could not provide any explanation as to why Ms. Thiessen did not work any overtime that year. The employer violated the collective agreement, and it should be ordered to pay Ms. Thiessen eight hours of overtime at the applicable rate.\n\nMr. Baldasaro was not offered overtime on August 26, 2010, because the SDS computation was wrong. IERT training and IERT work hours were not reflected in the overtime hours computed by the SDS. As a result, the SDS showed that S.H. had less overtime hours worked than Mr. Baldasaro, even though she had worked more hours. The CM trusted the SDS computation and called S.H. rather than Mr. Baldasaro. There should be no distinction between voluntary and involuntary overtime for the purposes of computing overtime hours and for offering overtime. Such a distinction is not part of the collective agreement. Had the parties wanted to make such a distinction for the allocation of overtime, they would have written it into the collective agreement.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-11", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 27–29", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At the end of the year, Mr. Baldasaro was clearly disadvantaged when compared to S.H. This becomes apparent when the ratio of hours worked and hours available are compared. The jurisprudence on remedies is clear. If the adjudicator allows the grievance, he should order the employer to pay Mr. Baldasaro the missed overtime opportunity.\n\nThe evidence showed that the employer did not perform any quarterly or annual audits or reviews of the discrepancies in overtime allocation, either at Kwìkwèxwelhp or at Matsqui. The national policy was not respected. Nor was it respected with respect to the obligation to share the overtime SDS information with the union. That was not done regularly. The information was not transparent. The way in which it was transmitted or posted did not allow the union or its members to fully monitor the equitable distribution of overtime.\n\nThe grievors referred me to the following decisions: Boujikian v. Treasury Board (Citizenship and Immigration Canada), PSSRB File No. 166-02-27738 (19980615); Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; Casper v. Treasury Board (Department of Citizenship and Immigration), 2011 PSLRB 27; Allard et al. v. Treasury Board (Department of Citizenship and Immigration), 2011 PSLRB 26; Hunt and Shaw v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 65; Sturt-Smith v. Treasury Board, PSSRB File No. 166-02-15137 (19860731); Weeks v. Treasury Board (Correctional Service of Canada), 2010 PSLRB 132; Lauzon v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 126; and Mungham v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 106.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-12", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 30–32", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer argued that it did not violate the collective agreement and that it allocated overtime on an equitable basis. The employer’s witnesses explained that the application of the national policy is transparent through reports that can be consulted at any time by the union or by employees. Rather, the problem is that the union is resistant to the national policy. The CMs monitor the allocation of overtime on a regular basis and enquire further if they receive a request from employees or the union.\n\nPast decisions of the Federal Court and of adjudicators have established that equitability must be measured over a reasonable period, that equitability should be assessed by comparing the hours allocated to a grievor to the hours allocated to similarly situated employees over that period, and that, when overtime hours are compared, the adjudicator must determine if any factors can explain any discrepancies, such as differing availability, leave or other factors. The employer respected those principles and did not violate the collective agreement.\n\nThe employer is entitled to set the parameters of equitability. It did so with the national policy. Under that policy, an employee cannot assert his or her right to a particular overtime shift. Equitability cannot be established on a day-to-day basis. Rather, the employer decided to establish it annually. No evidence was presented to establish that it cannot be done that way.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-13", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 33–37", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Since equitability is established annually, the grievances are premature because it is not possible in June or in August of a particular year to establish if the distribution of overtime has been equitable. The answer to that question will come after the year is completed. The offer of overtime for a particular shift needs to be placed in the context of all offers of overtime over the year.\n\nThe employer argued that, if one of the grievances is allowed, the adjudicator should simply declare that the collective agreement has been violated and should not order anything else. Ordering the employer to pay for a missed overtime shift is punitive since the shift was not worked by the relevant grievor. Remedies of a punitive nature should not be ordered when the employer acted in good faith.\n\nFor Ms. Thiessen, the employer offered to correct its mistake by offering an alternate overtime shift. She refused that offer twice. She further testified that she was not available often to work overtime because of her responsibilities outside the workplace.\n\nFor Mr. Baldasaro, the employer admitted that it treats voluntary and mandatory overtime differently under the national policy. Nothing in the collective agreement prevents the employer from implementing such a policy. The SDS reports do not show that Mr. Baldasaro was treated inequitably.\n\nThe employer referred me to the following decisions: Attorney General of Canada v. Bucholtz et al., 2011 FC 1259; Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board, 2010 PSLRB 85; and Canada (Attorney General) v. Lussier,[1993] F.C.J. No. 64 (F.C.A.).", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-14", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 38–40", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "These two grievances raise important questions about the equitable allocation of overtime among readily available qualified employees. The qualifications required to perform the overtime or the availability of the grievors were not at issue in these grievances. Instead, this decision will focus on the following questions:\n\nA penitentiary operates 24 hours a day, 7 days a week with a complement of staff that cannot be reduced below a certain level. Most of the time, when a correctional officer scheduled for work is absent, he or she should be replaced. Occasionally, emergencies in the penitentiary require the employer to find non‑scheduled officers to work. Because of those operational realities, overtime is frequent for correctional officers. This context needs to be considered when establishing whether the collective agreement allows the employer to assess equitability in overtime allocation on an annual basis.\n\nFirst, the collective agreement does not mention any restrictions and does not provide any guidance about the period for which to assess equitability. Second, nothing in the collective agreement prevents assessing equitability on an annual basis. Third, the case law of both this Board and its predecessor clearly establishes that “equitable” does not mean “equal” and that equitability should be assessed for a term longer than daily. Fourth, most adjudicator’s decisions involving these parties since 2005 assessed equitability on a daily basis, but that was based on the premise that there were established policies or procedures in place at CSC institutions, which implied a daily assessment of the equitable distribution of overtime.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-15", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 41–42", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Since the local procedures for allocating overtime were rescinded in November 2009, nothing prevents the employer from assessing equitability on an annual basis. Considering that there are no restrictions in the collective agreement, the employer has the right to establish a reference period to assess the equitability of overtime offered to correctional officers. It decided to use the fiscal year, starting April 1 and ending March 31, as the period in which to assess equitability. Nothing was adduced in evidence to prove that that period is not reasonable and that it does not permit a fair or reasonable assessment of the equitable allocation of overtime. Furthermore, there is abundant jurisprudence involving these parties or their predecessors confirming that the employer does not violate the collective agreement when it assesses the equitable distribution of overtime annually.\n\nThe employer argued that these two grievances are premature because it was not possible in June or in August 2010 to establish whether equitability in the distribution of overtime was respected. For the employer, the answer to that question would be known only when all offers of overtime over the year were analyzed. The employer also took that position in its reply to the grievances. I do not agree with the employer’s argument. These grievances were not premature. In accordance with the clear wording of section 208 of the Public Service Labour Relations Act,S.C., 2003, c.22 (“the Act”) an employee’s right to grieve is established when he or she “feels aggrieved” and not when he or she is in a position to prove the grievance.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-16", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 43–44", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The evidence shows that both grievors felt aggrieved by the employer when it did not offer them an overtime shift in June or in August 2010. It did not happen at the end of the fiscal year but rather on those dates. Subsection 208(1) of the Act gives employees the right to grieve if they feel aggrieved. It reads as follows: 208. (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved (a) by the interpretation or application, in respect of the employee, of (i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or (ii) a provision of a collective agreement or an arbitral award; or (b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.\n\nStatutorily therefore, Ms. Thiessen and Mr. Baldasaro had a right to grieve the employer’s decision not to call them for overtime in June or in August 2010 respectively within the timeline stated in the collective agreement. Further support for this interpretation is found in clause 21.10 of the collective agreement which states that an employee may present a grievance within specific deadlines after he or she is “notified” or “first become aware of the action or the circumstances giving rise to the grievance” (emphasis added).", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-17", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 45–48", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer replied to these grievances at the final level in November and December 2011 respectively. By then, fiscal year 2010-2011 was over, and the parties would have had access to all the information needed to assess equitability over that fiscal year. The same logic applies to the adjudication hearing. Based on past practices, hearings rarely take place within the fiscal year of the grieved overtime.\n\nI also find that correctional officers could instead accept the employer’s logic and choose to wait to the end of the fiscal year to file their grievance. They could then grieve the inequitable allocation of overtime for the full year. They could also then grieve an inequitable allocation of overtime for a specific date that was not corrected later on during the fiscal year.\n\nI should add that it seems to me that the grievors acted in the manner that best fosters positive labour relations. The grievors, in filing their grievances at the outset, alerted the employer that they felt that there was a problem and gave it time to fix the issue. Had they waited until the end of the fiscal year, the employer would not have been able to correct the alleged inequitable distribution of overtime.\n\nIt is important to again cite the following extract from the text of the national policy, which defines the employer’s understanding of the equitable offering of overtime: Equitable offering of overtime: means that over the fiscal year, management has made every reasonable effort to offer approximately the same amount of overtime hours to one employee as it has to other readily available qualified employees in the same work area. However, some employees may end the recording period with fewer overtime hours worked. [Emphasis in the original]", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-18", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 49–50", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "No national policy on the allocation of overtime can, given the wording of the collective agreement, ignore the issue of how to distribute overtime amongst readily available and qualified employees. In other words, such a policy must deal with who has priority on offers of overtime since the collective agreement requires that the employer make every reasonable effort to distribute overtime on an equitable basis. I have already established that the time period for the evaluation of this obligation can be the fiscal year. I also agree with the employer’s argument that under the terms of the collective agreement, officers are not automatically entitled to an overtime shift even if they have the lowest number of hours of overtime offered in a year. However, that number cannot be ignored by the employer either.\n\nAccording to the national policy, the CMs should consider the number of overtime hours already offered during the year. To do so, they use the SDS, which ranks the officers starting with the one to be paid at time and one-half with the lowest hours of overtime offered. The oral evidence is unequivocal; the CMs respect the order on that list. On that basis, the employer’s well-established practice, since November 2009, is that it offers overtime to officers on the basis of rates of pay and the lowest number of hours of overtime offered. I should also add that the employer needs to have a system in place to build equitability on a yearly basis. It cannot wait a few months before the end of the fiscal year to analyze equitability. In a way, it does that every time it offers overtime.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-19", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 51–52", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "That does not mean that an adjudicator would necessarily be required to allow a grievance if the employee proved that he or she was not called for a specific overtime shift, despite having the lowest number of overtime hours offered. The adjudicator would have to first assess whether that omission resulted in an inequitable allocation of overtime at the end of the fiscal year. That means that the employer could correct the omission later during the year and still allocate overtime equitably. As well, it could be that the employer would have a valid reason to offer the overtime to another employee on the list, but I shall not speculate on what those valid reasons could be.\n\nI must underline the importance of the quarterly reviews and audits which are integrated into the national policy, as explained in Mr. Kearney’s testimony. Those are essential to ensure equitability. Even though the witnesses testified that they perform reviews on request, that is not sufficient to ensure equitability. Discrepancies in overtime allocation will arise only when reviews and audits are done. Obviously, discrepancies cannot be corrected if they are not known.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-20", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 53–55", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In Mungham, and in many other decisions that applied the same logic, the adjudicator concluded that the employer violated the collective agreement because it did not respect its own local policies or procedures on the allocation of overtime. According to those procedures, equitability was assessed daily. According to the national policy, it is assessed annually, but it is allocated for individual shifts on the basis of the number of hours of overtime offered to officers during the year. The main difference between both systems is that, under the national policy, the employer can make corrections during the year and can readjust offering overtime if its national policy and its application results in an inequitable allocation of overtime.\n\nAccording to the national policy and to the SDS, the employer does not compute mandatory overtime hours for which correctional officers were ordered to work. Evidence was adduced at the hearing about overtime hours on the IERT, which are considered mandatory by the employer because officers are expected to work when called. Mandatory overtime can also be worked in emergencies by officers who are not members of the IERT. The grievors disagreed with this distinction between mandatory and voluntary overtime, which distinction, they argued, is nowhere to be found in the collective agreement.\n\nOn that point, I agree with the grievors. Had the parties wanted to make a distinction between the mandatory and voluntary allocation of overtime, they would have written it into the collective agreement and would have excluded mandatory overtime from the equitable distribution of overtime. However, they did not.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-21", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 56–57", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "When the employer calls officers who are qualified to work on the IERT, it is normal that it does not consider other officers with less overtime hours but who are not qualified to work on the IERT. However, it should compute those hours as overtime offered to those qualified employees. By not doing so, the employer puts a systemic bias into the equitable distribution of overtime. It should instead include mandatory hours. This would increase the overtime of those employees and give more overtime opportunities to employees who do not work mandatory hours. At the end of the year, the final figures between employees from both groups would be equitable. Otherwise, there is a strong possibility that the opposite would occur.\n\nThe employer did not submit any jurisprudence to support that mandatory overtime hours should not be counted for the purpose of assessing overtime equitability. Based on the wording of clause 21.10 of the collective agreement and the absence of any distinction between mandatory or voluntary overtime, I conclude that the employer must include the mandatory hours of overtime when assessing equitability in offering overtime. If the employer wants to exclude mandatory overtime from clause 21.10(a), it must obtain the union’s agreement to amend that clause.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-22", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 58–59", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer argued that the proper remedies at adjudication in a case of a violation of the collective agreement should be limited to a declaration that the collective agreement was violated. The employer referred me to Lussier in support of its argument. That decision is of little interest in this case. In Lussier, the adjudicator concluded that the employer violated the collective agreement by refusing vacation leave to an employee. He ordered the employer to pay $100 to the grievor for damages. The Federal Court of Appeal quashed that decision on the basis that the adjudicator exceeded his jurisdiction by awarding such damages. I find that the issue and principles at play in that decision are completely different from those before me in these cases.\n\nThe employer’s position in this case is simply contrary to the prevailing jurisprudence. I raised this point with the employer at the hearing, but it maintained its position. Furthermore, the remedy that it proposes does not fix the prejudice done to employees who would feel aggrieved. I am not sure whether the employer realizes it or simply ignores it, but the reality is that, for example, Mr. Baldasaro would have been paid 11.75 hours at double time had he been called for overtime on August 26, 2010. That represents a loss of more than $700 for him. A declaration does very little to compensate for that loss.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-23", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 60–63", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Considering that grievances are very rarely heard at adjudication in the same fiscal year in which they are filed, and considering the jurisprudence, the proper remedy for an adjudicator is to order the employer to pay a grievor who proves an inequitable distribution of overtime. This is coherent with most of the recent adjudication decisions in this jurisdiction, including Mungham, Weeks, Sturt-Smith, Hunt and Shaw, Casper, Boujikian, and Lauzon.\n\nHowever, in cases in which adjustments can still be made to the overtime allocation of a fiscal year, the employer, within the internal grievance procedure, could offer alternate overtime shifts to compensate for an inequitable distribution of overtime. When the grievance reaches adjudication, it is too late for that solution, and a cash payment becomes the proper remedy.\n\nThe employer admitted that it did not respect its own policy by not offering Ms. Thiessen overtime on June 22, 2010, due to a glitch in the SDS. On that day, Ms. Thiessen should have been called for overtime since she had the lowest number of overtime hours during the year, but she was not because the SDS screen did not show her name as available for that shift, even though she was.\n\nWhen the employer realized that it made a mistake, it tried to correct it by offering Ms. Thiessen another overtime shift. She refused on the basis that she did not want to take an overtime shift away from her co-workers. Later during the year, the employer made another offer to Ms. Thiessen. She would work an overtime shift as an extra person on the roster at a time convenient to her. She refused again because she had a very busy life and was not available.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-24", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 64–65", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "At the end of the year, Ms. Thiessen had been available for 143 hours of overtime but she was not offered any except for the two offers made to her for the missed overtime shift of June 22, 2010. The CM testified that he analyzed Ms. Thiessen’s overtime situation for fiscal year 2010-2011. For each shift that Ms. Thiessen was available, no overtime was offered. That explained why she did not work any overtime during the year. That evidence was not contradicted.\n\nBased on the evidence adduced at the hearing, on all the facts of this case and on the principles established earlier in this decision, I conclude that I must dismiss the grievance. Initially, the employer made a mistake but it tried on two occasions to correct it. It gave choices for the overtime shift that Ms. Thiessen could work. In my opinion, the employer made every reasonable effort to allocate overtime equitably to Ms. Thiessen. I believe her testimony that she has a very busy life. However, she needed at least to make herself available for an eight-hour overtime shift at a time convenient to her and to the employer. She refused to do it and prevented the employer from correcting its mistake.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-25", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 66–67", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Mr. Baldasaro grieved that he should have been called for overtime for an 11.75‑hour shift at double time on August 26, 2010, because he was available and had less hours of overtime than S.H., who was also available at double time. The SDS screen consulted by Ms. Laberge indicated that S.H. had 19.75 hours of overtime offered during the year and that Mr. Baldasaro had 34 hours. On that basis, Ms. Laberge called S.H. to work that shift. However, as the evidence showed, the SDS information used by Ms. Laberge did not include the mandatory overtime hours worked during the year. To respect the collective agreement, the employer should have added those hours so that the full picture of the overtime offered was correct before the August 26, 2010 overtime shift was allocated.\n\nMr. Baldasaro adduced in evidence an SDS report that showed that he had worked 28.75 hours of overtime before August 26, 2010 and that S.H. had worked 42 hours of overtime for the same period. That included the mandatory overtime worked but did not include the hours offered and refused by both officers, which were part of the report used by Ms. Laberge to make her calls for the August 26, 2010 shift. Finally, the employer adduced in evidence a report showing that Mr. Baldasaro worked 9.5 hours of mandatory overtime between April 1 and August 25, 2010.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-26", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 68–69", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "If I add all the hours that should have been computed by the employer by August 25, 2010, I arrive at 43.5 hours of overtime offered to Mr. Baldasaro and at least 42 hours of overtime for S.H. The total for S.H. could be higher, if she refused overtime between April 1 and August 25, 2010. However, I do not have evidence as to the number of hours that she might have refused during that period. Consequently, I have no evidence to prove that Ms. Laberge made the wrong decision, even if she made it with the wrong information. In addition, and as stated earlier in this decision, equitable does not mean equal and the employer is not obliged to offer overtime to the employee with the lowest number of overtime hours. In this case, a difference of one hour does not ground an argument that the allocation of overtime was inequitable. It was not inequitable for Ms. Laberge to offer overtime for the August 26, 2010 shift to S.H. rather than to Mr. Baldasaro.\n\nAnother SDS report adduced at the hearing by the employer showed that, between April 1, 2010 and March 31, 2011, Mr. Baldasaro was offered 104.75 hours of overtime and was ordered to work 9.5 hours of mandatory overtime, for a total of 114.25 hours. He was available to work 1663 hours of overtime. In comparison, S.H. was offered 87.75 hours and was ordered to work 38.5 hours, for a total of 126.25 hours of overtime. She was available for 592.75 hours of overtime. Basically, S.H. was offered or worked 12 more hours of overtime than Mr. Baldasaro during that year. That difference of 12 hours in itself might not be inequitable. However, that must be put in the context that Mr. Baldasaro had 1070 more hours of availability than S.H. did, which is almost 200 percent more.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-27", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 70–72", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The annual comparison between Mr. Baldasaro and S.H. shows major discrepancies. According to the national policy, those types of discrepancies need to be analyzed, as they were in the case of Ms. Thiessen. In Mr. Baldasaro’s case, that was not done. Mr. Marshall testified that those differences could most likely be explained by checking the offers of overtime for every day of the year. I am not sure that Mr. Marshall is right on that point. However, that is not what Mr. Baldasaro grieved. Instead, he grieved the August 26, 2010 shift, and the evidence adduced at the hearing did not prove that he was treated inequitably that day.\n\nA fair amount of time was spent at the hearing on evidence related to information sharing. Almost every witness testified about it. I reported only a small part of that evidence, since it seemed irrelevant to deciding these grievances and the questions in front of me about the interpretation of clause 21.10(a) of the collective agreement.\n\nHowever, the problem of information sharing seems serious, and I believe that it could explain in part why there are more than 500 grievances at adjudication concerning clause 21.10(a) of the collective agreement. No other single clause of any collective agreement for which the Public Service Labour Relations Board has jurisdiction is the object of that many grievances. It would be naive to believe that better communication between the parties would eliminate all those grievances, but I am firmly convinced that it would reduce their number.", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358890-28", - "doc_type": "caselaw", - "act_code": "2012 PSLRB 54", - "act_short": "Baldasaro and Thiessen", - "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", - "section": "", - "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", - "marginal_note": "paras 73–76", - "heading": "Hours of work and overtime under a collective agreement", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The complete application of the national policy and of what it implies, as per Mr. Kearney’s testimony, would be an excellent start to improve communication between the parties. More transparent, understandable and regular automatic reporting and discussions should take place with the union. At the moment, it seems to be done only on a reactive basis. In my opinion, the employer should be more proactive in that respect. It takes time, but it would be worth the effort.\n\nFor all of the above reasons, I make the following order:\n\nMs. Thiessen’s grievance is dismissed.\n\nMr. Baldasaro’s grievance is dismissed. May 04, 2012. Renaud Paquet, adjudicator", - "current_to": "2012-05-04", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" - }, - { - "id": "fpslreb-358203-1", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 1–3", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "This decision addresses an objection raised by the employer to the jurisdiction of an adjudicator to hear a policy grievance referred to adjudication by the Public Service Alliance of Canada (“the bargaining agent”) under subsection 220(1) of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the Act”). Subsection 220(1) reads as follow: 220. (1) If the employer and a bargaining agent are bound by an arbitral award or have entered into a collective agreement, either of them may present a policy grievance to the other in respect of the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally.\n\nThe grievance filed August 31, 2007, challenges an accommodation policy introduced by the Canada Border Services Agency (CBSA) in the course of the arming strategy for its border services officers. The grievance alleges that the policy breaches the non-discrimination clause of the collective agreement. The grievance reads as follows:\n\nClause 19.01 of the collective agreement reads as follows: 19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-2", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 4–6", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "On November 20, 2007, the bargaining agent filed a notice with the Canadian Human Rights Commission in which it stated that all the prohibited grounds of discrimination provided in the Canadian Human Rights Act (CHRA), were involved. On March 28, 2008, the Canadian Human Rights Commission informed the Board that it would participate if a hearing was held on the merits of the grievance.\n\nIn a letter sent to the Public Service Labour Relations Board (“the Board”), the employer articulated its objection to the jurisdiction of an adjudicator as follows: It is the Employer’s position that the above-noted policy grievance does not meet the definition of policy grievance in section 220(1) as it relates to the CDT Strategy which does not form part of the collective agreement and which applies only to Border Services Officers and not to the whole PM bargaining unit (copy attached). Therefore, the CDT Strategy is not a grievable matter and as a consequence, cannot be referred to adjudication. In addition, although the policy grievance is characterized as a violation of article 19 (no discrimination) of the collective agreement, in fact it is challenging the CDT Strategy which is not a grievable matter and therefore is not adjudicable.\n\nThe bargaining agent filed 10 exhibits on consent and did not call any witnesses. The employer called one witness, Calvin Christiansen, Director, Arming Division, Operations Branch, CBSA, who is responsible for the implementation of the arming initiative and related strategies.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-3", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 7–9", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In order to provide background information, counsel for the bargaining agent referred on consent to Treasury Board (Canada Border Services Agency) v. Public Service Alliance of Canada, 2007 PSLRB 22, in which the Board created a new bargaining unit for the Border Services (FB) and modified the Program and Administrative Services (PA) bargaining unit to exclude positions that were allocated to the FB bargaining unit. In that decision, the Board also certified the Public Service Alliance of Canada as bargaining agent for the FB bargaining unit and declared that the PA collective agreement continued to be in force for employees in the FB group. This collective agreement still applies today to the employees of the FB group.\n\nThere is no real dispute with respect to the relevant facts that led to the filing of the grievance.\n\nThe arming initiative of border services officers was launched in 2006. Different groups of employees will be armed. Among them are the border services officers who work at land and marine ports of entry, regional intelligence officers, criminal investigators, and inland enforcement officers. It was also established that other groups of employees are not expected to be armed, such as border services officers assigned to postal operations and airports. When the initiative is fully implemented, approximately 4450 employees in the bargaining unit will be armed. Although the parties could not agree on the exact number of employees in the bargaining unit who will be affected by the arming initiative, they agreed that between 56 and 71 percent of the employees will be armed and are likely to be affected by the policy at issue.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-4", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 10–13", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Within the arming strategy, the employer introduced the Arming and Control and Defense Tactics (CDT) and Arming Programs. The firearm training program, which includes the CDT training, consists of a three-week course that employees must successfully complete before they can be assigned to an armed position. They must also maintain proficiency throughout the duration of their assignment to an armed position.\n\nThe employer has adopted a phase-in approach and intends to implement the arming initiative over a period of 10 years. Up to now, the arming of current border services officers has been done on a voluntary basis, and 500 officers have successfully completed the firearms training program and have been deployed to different locations.\n\nIn July 2007, the employer introduced the contested policy: Accommodation Strategy Relating to Arming and Control and Defence Tactics (CDT) (“the policy”). The policy addresses accommodating employees who are unable to undergo or successfully complete the firearm training program.\n\nIn the policy, the employer states that the CDT and Arming Programs are mandatory, but acknowledges the inability of some employees to undertake the training for reasons related to prohibited grounds of discrimination. The employer also recognizes that those employees must be accommodated.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-5", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 14–16", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The policy states how the employer perceives the scope of its duty to accommodate: The Duty to Accommodate By law, the CBSA is obliged to make every reasonable effort, short of undue hardship, to accommodate an employee who legitimately falls into one or more of the above categories. This means that, where an accommodation is warranted, it is the Agency’s obligation to accommodate the impacted employee, short of undue hardship, in a position or grouping of duties that are commensurate with the employee’s current duties. Where duties at an equivalent level are not identified, the Agency is obliged to consider positions or duties that are classified at a lower level. It should be noted that in cases where lower level duties are identified, the accommodated employee is not entitled to salary protection. The CBSA must first consider opportunities for accommodation at the employee’s present workplace. If no opportunity is identified, there is an obligation to consider opportunities elsewhere in the CBSA beginning with ports or offices within the District or geographical area where the affected employee is assigned. If an opportunity is identified, an offer must be made. If no opportunities are identified, or if the employee refuses the alternative offer, the employee will be terminated for non-disciplinary reasons, as they do not meet the conditions of employment and they cannot be accommodated up to the point of undue hardship.\n\nThe objective of the policy is set out as follows: The objective of the CDT/Arming accommodations strategy is to:\n\nCounsel for the employer argued that the issue raised in the grievance is not an appropriate matter for a policy grievance filed under subsection 220(1) of the Act.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-6", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 17–19", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the employer outlined that the legislator introduced the policy grievance with the adoption of the Act, which came into effect on April 1, 2005. Under the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (“the former Act”), the concept of a policy grievance did not exist, although a party could make a “referral” to the Board under section 99 of the former Act when seeking the enforcement of an obligation arising out of a collective agreement where the obligation could not be enforced through an individual grievance. According to the employer, the policy grievance is designed to be restrictive, and individual grievances should remain the general rule. A policy grievance should be viewed as an exception within the statutory regime provided in the Act and should be limited in its scope.\n\nCounsel for the employer submitted that the grievance filed by the bargaining agent does not meet the conditions set out in subsection 220(1) of the Act, since the issue raised does not relate to a collective agreement dispute and does not relate to the bargaining unit generally.\n\nWith respect to the first condition, counsel for the employer argued that subsection 220(1) of the Act confines a policy grievance to collective agreement issues. The matter at issue has to be “… in respect of the interpretation or application of the collective agreement … .” If a policy has not been incorporated in the collective agreement, it does not form part of the collective agreement and is therefore not subject to adjudication under subsection 220(1) of the Act. Since the policy challenged in this case has not been incorporated in the collective agreement, it cannot be challenged through a policy grievance.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-7", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 20–22", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In support of his argument, counsel for the employer referred to Rootham, Labour and Employment Law in the Federal Public Service (2007), at 305: … Since many public sector collective agreements incorporate Treasury Board policies (especially the Terms and Conditions of Employment Policy), policy grievances could be brought as the result of the interpretation of those Treasury Board policies incorporated into collective agreements…\n\nCounsel for the employer also submitted that the legislator did not intend that the introduction of the policy grievance open the door for every policy adopted by an employer to become subject to adjudication, or that the policy grievance become a vehicle challenging every policy under article 19 of the collective agreement on a generic basis, without factual context. Such a liberal interpretation would result in a proliferation of litigation and would have serious implications for human resources management.\n\nCounsel for the employer added that the application of the policy could eventually give rise to individual grievances being filed by employees alleging that they have been adversely impacted by the policy, although the actual impact of the accommodation policy on individuals is speculative at this point.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-8", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 23–24", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "With respect to the second condition set by subsection 220(1) of the Act, counsel for the employer argued that the expression “’the bargaining unit generally” means the whole bargaining unit, and not a portion of it, even if it is a large portion. The language used by the legislator clearly indicates that the matter at issue must affect all of the employees in the bargaining unit and not just a portion of the employees. A policy grievance is intended to be limited to challenging policies that apply to virtually all of the employees in the bargaining unit, although counsel for the employer conceded that there could be material exceptions. Matters affecting a portion of the employees in the bargaining unit must be raised through either an individual or group grievance.\n\nCounsel for the employer submitted that in the present case a significant number of employees will not be subject to the arming initiative and are therefore not likely to be affected by the policy at issue. Consequently, the matter raised in the grievance cannot be said to relate to the “bargaining unit generally,” and is therefore not subject to a policy grievance.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-9", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "para 25", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "To support his proposition, counsel for the employer again referred to Rootham, at 304: The real question for adjudicators will be what constitutes a matter that “relates to either of them or to the bargaining unit generally.” In the private sector, there is a fairly broad discretion for unions to bring policy grievances… However, the use of the term “the bargaining unit generally” may be interpreted to limit the scope of policy grievances so that only matters that affect the entire bargaining unit may be the subject of a policy grievance. Also, section 232 of the PSLRA explicitly limits an adjudicator’s remedial jurisdiction in policy grievances. Where the matter could have been the subject of an individual or group grievance, the adjudicator may only grant declaratory relief and may not grant damages or other individual relief as in the private sector. This may incline the Board to take a more limited view of what constitutes a proper policy grievance. In Canadian Broadcasting Corp. and National Association of Broadcast Employees and Technicians, the arbitration panel set out the four general classifications of grievances: The use of “all members of the bargaining unit” as interchangeable with “members of the bargaining unit generally” in the fourth example may support the proposition that a policy grievance under the new PSLRA must affect the entire bargaining unit, and not just some portion thereof. However, it is also clear that the impact on bargaining unit members could be speculative or predicated on some future event — meaning that the entire bargaining unit need not have suffered actual harm yet…", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-10", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 26–28", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the employer also referred to the definition of the word “general” as found in The Shorter Oxford English Dictionary (1978): “pertaining to all, or most, of the parts of a whole; completely or approximately universal within implied limits … Concerned with the whole … Not specifically limited in application; applicable to a whole class of objects, cases, or occasions.” The word “generally” for its part is defined as follows: “so as to include all; as a whole, collectively … Universally; with respect to all or nearly all.” Le Nouveau Petit Robert (2002), defines “général” as follows: “Qui s’applique, se réfère à un ensemble de cas ou d’individus … Qui s’applique à l’ensemble ou à la majorité des cas ou des individus d’une classe … Qui s’intéresse, réunit sans exception tous les individus, tous les éléments d’un ensemble.” Counsel for the employer stated that these definitions imply the idea of the totality of a group and not a portion of a group. The same idea must be retained in the context of subsection 220(1) of the Act.\n\nCounsel for the bargaining agent argued that this matter was appropriately filed as a policy grievance under subsection 220(1) of the Act.\n\nThe bargaining agent does not agree with the employer’s proposition that only policies incorporated into the collective agreement are subject to adjudication. Counsel for the bargaining agent submitted that, although the employer is entitled to adopt and implement policies, that power must always be exercised in a manner consistent with the collective agreement. Any policy introduced by the employer, whether incorporated into the collective agreement or not, is subject to adjudication if it allegedly violates a provision of the collective agreement.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-11", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 29–30", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "When a grievance alleges that the employer’s policy violates a provision of the collective agreement on its face, that grievance may be filed as a policy grievance under subsection 220(1) of the Act. In this case, the bargaining agent alleges that by introducing and implementing the policy at issue, the employer violated article 19 of the collective agreement. Counsel for the bargaining agent argued that nothing supports a more restrictive application of article 19 or suggests that it does not provide a substantive right on a stand-alone basis. To the contrary, article 19, which reflects the CHRA, clearly provides substantive rights that have a quasi-constitutional status. On that matter, counsel for the bargaining agent referred to Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324,2003 SCC 42. He submitted that not permitting a bargaining agent to file a policy grievance against a policy that is allegedly discriminatory would offend human rights principles. He also referred to Barr and Flannery v. Treasury Board (Department of National Defence), 2006 PSLRB 85, where the adjudicator retained jurisdiction with respect to grievances challenging the employer’s policy solely under the non-discrimination provision of the applicable collective agreement.\n\nMoreover, the Act, as opposed to the former Act, expressly gives the Board jurisdiction to hear matters relating to human rights and empowers it to interpret and apply the CHRA.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-12", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "para 31", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the bargaining agent argued that a restrictive interpretation of subsection 220(1) of the Act,limiting the employers’ policies that can be challenged to those policies incorporated in the collective agreement, would be contrary to the intent and purpose of the Act. This argument was articulated as follows in the “Outline of Legal Submissions” that counsel for the bargaining agent provided to me in support of his oral arguments: 14. Were the employer’s restrictive interpretation of policy grievances under subsection 220(1) adopted, employers could insulate any violation of a collective agreement from adjudication merely by implementing policies outside the collective agreement. This cannot be consistent with the purpose or intent of the PSLRA, as such an interpretation would permit the employer to violate terms and conditions it has negotiated with the bargaining agent merely by introducing a new policy subsequent to negotiation of the collective agreement. 15. PSAC submits that, in the context of labour relations, justice would be ill-served if management could simply hide behind its authority to implement policies in order to bypass a full assessment of the compliance of its actions with the collective agreement, as provided for under the PSLRA. Such a conclusion would be untenable and would run entirely contrary to the purpose and intent of the PSLRA in general, and of subsection 220(1) in particular.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-13", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 32–34", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the bargaining agent submitted that the Act clearly contemplates the possibility for a bargaining agent to challenge a policy by filing a policy grievance when the bargaining agent alleges that the policy per seviolates the collective agreement and contemplates the possibility for employees to challenge the impact of the application of the policy through an individual or a group grievance. Section 232 of the Act clearly provides for specific and different remedies when the two recourses coexist with respect to the same matter.\n\nWith respect to the employer’s second argument, counsel for the bargaining agent submitted that, since the grievance alleges that the policy violates article 19 of the collective agreement, which is a provision of the collective agreement that applies to the entire bargaining unit, the dispute relates to the bargaining unit generally. He insisted that it is the policy itself that is at stake, and that, at this point, individual circumstances are secondary.\n\nCounsel for the bargaining agent also submitted that the employer’s proposition, which is that unless a subject matter affects every employee in the bargaining unit it cannot give rise to a policy grievance, is unreasonable and is much too restrictive to serve the purpose of policy grievances. The expression “the bargaining unit generally” must be interpreted in a manner consistent with labour relations principles, with the jurisprudence and with the intent and purpose of the Act. Should the employer’s interpretation be adopted, it would almost eliminate the possibility for a bargaining agent to file a policy grievance.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-14", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "para 35", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "With respect to the broad labour relations jurisprudence, counsel for the bargaining agent referred to Brown and Beatty, Canadian Labour Arbitration, 4th ed., at para 2:3124: A policy grievance is usually considered to be one that does not depend upon the behaviour of an individual employee, or one that does not affect a specific individual. As indicated, policy grievances have been described as union or policy grievances where the subject-matter of the grievance is of general interest and where individual employees may or may not be affected at the time that the grievance is filed. [Emphasis added]", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-15", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "para 36", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the bargaining agent submitted that there is no indication in the jurisprudence that the matter at issue must affect every member of the bargaining unit. He referred specifically to the following cases: International Union of Electrical Workers, Local 549, v. Sylvana Electric (Canada) Ltd. (1972), 24 L.A.C. 361; St. Joseph’s Hospital v. SEIU, Local 204 (1997), 65 L.A.C. (4th) 160; and Governing Council of University of Toronto v. CUPE, Local 3902-Unit 3 (2006), 150 L.A.C. (4th) 409. Relying on that jurisprudence, counsel for the bargaining agent articulated the following argument in his “Outline of Legal Submissions”: 30. In each of these cases, it is clear that policy grievances are regarded as a mean to address matters of concern to the bargaining unit generally, in the sense that they raise issues that may affect any number of individual bargaining unit members, or the bargaining unit as a whole. Given the foregoing jurisprudence, it is PSAC’s submission that “the bargaining unit generally” should be interpreted to mean the bargaining unit broadly, though not necessarily comprehensively. In the present case, PSAC submits that the issue of whether the Strategy is discriminatory constitutes a matter overriding interest to the union concerning the interpretation and application of a specific provision of the collective agreement, namely Article 19, as it may broadly affect members of the FB bargaining unit.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-16", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 37–38", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the bargaining agent argued that the expression “the bargaining unit generally” should be interpreted in a manner consistent with the principles of statutory interpretation and with the purpose and intent of statutory labour relations regimes, which support the proposed interpretation of “the bargaining unit generally” as referring to the bargaining unit broadly. In this instance, the policy will apply to a majority of the employees in the bargaining unit.\n\nCounsel for the bargaining agent referred to section 232 of the Act, which clearly contemplates the possibility of a policy grievance being filed in situations concerning only certain individuals within the bargaining unit. In light of the presumption of coherence in statutory interpretation, it would then be absurd to interpret “the bargaining unit generally” noted in subsection 220(1) leading to the requirement that the policy grievance concerns all the members of the bargaining unit.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-17", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 39–41", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Counsel for the bargaining agent also referred to other sections of the Act in which the legislator refers specifically to portions of or the totality of the members in the bargaining unit by using the terminology “the employees in a bargaining unit,” “a majority of the employees in a bargaining unit” or “all of the employees in the bargaining unit,” rather than using the broader expression “the bargaining unit generally.” If the legislator intended policy grievances to be limited to matters affecting all of the employees in the bargaining unit, the legislator would have stated it as clearly as in other provisions of the Act. Subsection 220(1) of the Act does not state “all of the employees in the bargaining unit,” and was drafted to include a large scope of policy grievances as means of resolving disputes between employers and bargaining agents.\n\nCounsel for the bargaining agent also relied on the French version of subsection 220(1) of the Act, which states “l’unité de négociation de façon générale,” which, according to the Collins-Robert French-English/English-French Dictionary, 6th ed. (2002), “façon” meaning “way” or “manner” and “générale” meaning “generally speaking” or “as a general rule.” These definitions are consistent with “the bargaining unit generally” in the English version interpreting to mean “broadly” or “in a general sense” rather than “the bargaining unit comprehensively.”\n\nCounsel for the bargaining agent contended that the bargaining agent’s role as a “watchdog” of the integrity of the collective agreement gives it a personal interest when a policy on its face contradicts the collective agreement. Therefore, such a matter should be considered as relating to “the bargaining unit” within the meaning of subsection 220(1) of the Act.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-18", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 42–45", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In conclusion, counsel for the bargaining agent proposed that subsection 220(1) of the Act should be viewed “as providing a mechanism for addressing on a principle level matters of broad concern to the members of the bargaining unit.” The possibility of seeking a declaratory ruling and avoiding the filing of individual grievances is in both parties’ interests, and is consistent with the Act and with labour relations principles.\n\nCounsel for the employer submitted that I should be very cautious when considering private sector jurisprudence since, dispute resolution regimes in the private sector are different from the public service statutory regime. He also distinguished the jurisprudence referred to by counsel for the bargaining agent from the case at hand as relying on the language of the respective collective agreements, which is different than the language used by the legislator in subsection 220(1) of the Act.\n\nCounsel for the employer insisted that the adoption of a broad interpretation allowing every policy not incorporated into the collective agreement to be subject to adjudication would lead to a proliferation of litigation, would have grave impacts on human resources practices and would restrict the employer from issuing guidelines and policies.\n\nThis case raises the question of whether the bargaining agent can rely on subsection 220(1) of the Act to challenge a policy introduced by the employer that will affect a large portion of the employees in the bargaining unit, on the basis that the policy is inconsistent with a provision of the collective agreement.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-19", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 46–50", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "For the reasons detailed below, I conclude that the matter at issue was properly presented in accordance with subsection 220(1) of the Act, and that I have jurisdiction to consider the merits of the grievance pursuant to section 221 of the Act.\n\nThe concept of “policy grievance,” along with the concept of “group grievance,” was introduced by the Act, which came into effect on April 1, 2005.\n\nThe introduction of two new types of grievances in addition to the individual grievances raises the questions of how the legislator intended the new grievances’ structure to operate and the intended scope of each type of grievance, including, more specifically, the policy grievance.\n\nSubsection 220(1) of the Act reads as follows: 220.(1) If the employer and a bargaining agent are bound by an arbitral award or have entered into a collective agreement, either of them may present a policy grievance to the other in respect of the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally. [Emphasis added]\n\nThe French version reads as follows: 220.(1) Si l’employeur et l’agent négociateur sont liés par une convention collective ou une décision arbitrale, l’un peut présenter a l’autre un grief de principe portant sur l’interprétation ou l’application d’une disposition de la convention collective ou de la décision relativement a l’un ou l’autre ou a l’unité de négociation de façon générale. [Emphasis added]", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-20", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 51–53", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "I do not agree with the employer’s proposition that subsection 220(1) or any other provision of the Act suggests that policy grievances should be used as an exception. Individual grievances are likely to be more frequent than policy grievances by reason of their respective natures. However, in my view, the formulation of the Act in general and the language of the provisions pertaining to the three types of grievances do not suggest any hierarchy or level of importance among the different types of grievances. Moreover, section 232 of the Act clearly contemplates the possibility of there being a policy grievance and an individual grievance on the same matter, with the remedies being specific for each type of grievance. However, the legislator imposed specific conditions that must be satisfied for each type of grievance.\n\nA policy grievance filed under subsection 220(1) of the Act must satisfy the following conditions:\n\nWith respect to the first condition, I conclude that the issue in the present case relates to the interpretation or application of a provision of the collective agreement, namely article 19. I do not agree with the employer’s proposition that a policy is not subject to adjudication if it is not incorporated into the collective agreement.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-21", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "para 54", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Within its general right to manage, the employer is empowered to adopt and implement policies unilaterally. However, the discretion of the employer’s action is limited by the provisions of the collective agreement. The compliance of employer policies with the collective agreement has generally been viewed as being adjudicable. Brown and Beatty, at para 4:1520, addresses the subject as follows: Even where such rules do not form part of the agreement, it is now generally conceded that in the absence of specific language to the contrary in the collective agreement, the making of such rules lies within the prerogative or initiative of management, and arbitrators have held this to be so whether or not an express management’s rights clause exists reserving the right of management to direct the workforce. However, this rule-making power is neither absolute nor without limitation. Rather, as summarized in KVP Co., a number of principles relating to this power have now become universally accepted among arbitrators. These principles provided that: A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites: Reformulated, these criteria may be said to require that any plant rules which are unilaterally promulgated must not be inconsistent with the terms of the collective agreement, their enforcement not be unreasonable, and they must be brought to the attention of those intended to be regulated by them.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-22", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 54–55", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "With respect to the first requirement, arbitrators have uniformly held that a unilaterally promulgated rule must not violate an express provision in the collective agreement, unless overridden by legislation… And to determine whether the rule infringes upon subject-matters occupied by a provision of the collective agreement, the arbitrator must compare the rule with the terms of the collective agreement…\n\nEvery policy adopted by an employer, whether incorporated into the collective agreement or not, is subject to adjudication if the dispute relating to the policy concerns its compliance or consistency with the collective agreement. In my view, this is precisely what section 220 of the Act contemplates.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-23", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "para 56", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In this case, the bargaining agent alleges that the policy introduced by the employer violates the non-discrimination clause (article 19) of the collective agreement. This is clearly a matter “… in respect of the interpretation or application of the collective agreement … ,” and the grievance, therefore, meets the first condition of subsection 220(1) of the Act. I do not see how and why article 19 could not be viewed as a stand-alone clause, given that human rights matters clearly involve substantive rights. Clause 19.01 reflects the provisions of the CHRA by setting out prohibited grounds of discrimination and other employer actions. Moreover, paragraph 226(1)g) of the Act empowers an adjudicator to interpret and apply the CHRA, and subsection 220(2) clearly contemplates the possibility for a policy grievance to be filed with respect to matters raising human rights issues. In Parry Sound (District) Social Services Administration Board, the Supreme Court of Canada reaffirmed the substantive character of human rights and clearly stated that the employer’s management rights were limited by human rights provisions in the collective agreement and in the legislation, and were subject to adjudication.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-24", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 56–57", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Although the Supreme Court was interpreting the Ontario human rights legislation, the principles outlined by the Court are relevant to interpret article 19 of the collective agreement: 23 … Under a collective agreement, the broad rights of an employer to manage the enterprise and direct the work force are subject not only to the express provisions of the collective agreement, but also to statutory provisions of the Human Rights Code and other employment-related statutes… 28 … [T]his means that the substantive rights and obligations of employment-related statutes are implicit in each collective agreement over which an arbitrator has jurisdiction. A collective agreement might extend to an employer a broad right to manage the enterprise as it sees fit, but this right is circumscribed by the employee’s statutory rights… 51 … Recognizing the authority of arbitrators to enforce an employee’s statutory rights substantially advances the dual objectives of: (i) ensuring peace in industrial relations; and (ii) protecting employees from the misuse of managerial power.\n\nI now come to the second statutory condition set out in subsection 220(1) of the Act and conclude, for the reasons that follow, that the matter at issue relates to the “bargaining unit generally” and therefore meets the condition.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-25", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 58–61", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "In my view, the phrase “… as it relates to . . . the bargaining unit generally,” should be interpreted as referring to matters that are of a general interest to the community that forms the bargaining unit, without requiring that every employee in the bargaining unit be affected by the policy. When the issue concerns the content of a policy, as opposed to a situation where an employee or a group of employees feel aggrieved by the application of a policy in respect of him or them in a given set of circumstances, the issue is of a general interest to the community that forms the bargaining unit, and should be considered to be related to the “bargaining unit generally.”\n\nI consider this interpretation consistent with the purpose and intent of the Act, with the specific language used by the legislator in subsection 220(1), and with labour relations principles and jurisprudence.\n\nThe preamble of the Act is helpful to understanding the purpose and object of the Act. As dictated by section 13 of the Interpretation Act: “The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object.”\n\nThe preamble of the Act states: Recognizing that the Government of Canada is committed to fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment; the Government of Canada recognizes that public service bargaining agents represent the interests of employees in collective bargaining and participate in the resolution of workplace issues and rights disputes; commitment from the employer and bargaining agents to mutual respect and harmonious labour-management relations is essential to a productive and effective public service;", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-26", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 62–63", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The provisions of the Act, and specifically subsection 220(1), should be interpreted in light of the commitments, principles and objectives outlined in the preamble.\n\nWith the enactment of Part 2 of the Act, Parliament established three types of grievances, which constitute a comprehensive code for bringing up labour relations rights disputes between the employer, bargaining agents and employees, in particular those arising out of the interpretation or application of a collective agreement or arbitral award. It can be inferred from the enactment of two new types of grievances, the group and the policy grievance, that it was apparently Parliament’s intention to replace the existing redress provisions through which the resolution of workplace disputes could be addressed and adjudicated, by more practical (group) and timely (policy) vehicles for the enforcement of rights arising under the collective agreement. I believe that, in light of the preamble to the Act, those provisions should be interpreted liberally, in a manner consistent with section 12 of the Interpretation Act, which reads as follows: 12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-27", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "para 64", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "An accessible adjudication system for disputes that arise from the collective agreement or an arbitral award is important to ensure respectful and sound labour-management relations, and is consistent with an “… efficient resolution of matters arising in respect of terms and conditions of employment …” within a context of “… mutual respect and harmonious labour-management relations …” Those principles suggest a liberal interpretation of the scope of a policy grievance and of the expression “the bargaining unit generally.” In Parry Sound (District) Social Services Administration Board, at para 50, the Supreme Court of Canada reiterated the importance of an efficient disputes resolution system: “… As this Court has repeatedly recognized, the prompt, final and binding resolution of workplace disputes is of fundamental importance, both to the parties and to society as a whole…”", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-28", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "para 65", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "When a policy or another employer’s action is challenged on the basis that it contravenes a provision of the collective agreement on its face, it is in the interest of all parties that the matter be resolved promptly, on a principle basis. In that regard, the French designation of “grief de principe” is revealing of the objective of this provision. It is also interesting to note that section 221 of the Act provides that a policy grievance may be referred directly to adjudication, whereas individual and group grievances may be referred to adjudication only after they have been presented up to and including the final level in the grievance process. Moreover, I do not believe it would be efficient or fair for employees to have to be adversely impacted by a policy before it could be subject to adjudication. Section 232 of the Act clearly implies that the legislator intended that a policy could be challenged on a principle basis through a policy grievance with suitable remedial authority given to the adjudicator, without the parties having to wait for the individual impacts arising from the application of the policy. This procedure can also avoid a multiplicity of proceedings and favours an early consideration and adjudication of the alleged violation of the collective agreement resulting from management actions which affect its employees broadly.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-29", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 66–67", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "A liberal interpretation of the expression “. . . as it relates to … the bargaining unit generally” — meaning matters that are of a general interest to the community that forms the bargaining unit — is also consistent with the language used in the Act. Had the legislator intended that policy grievances be limited to policies or situations affecting all of the employees in the bargaining unit, the legislator would have stated it clearly by using language such as “relates to all of the employees in the bargaining unit” or “to the bargaining unit in totality” or “to the entirety of the bargaining unit.” The use by the legislator of a more general language supports a less restrictive scope for policy grievances than suggested by the employer.\n\nLimiting the possibility of challenging a policy through a policy grievance to policies or situations that apply to all of the employees in a bargaining unit would seriously limit the usefulness of this dispute-resolution vehicle, especially when we consider the large scope of several bargaining units in the federal public sector, which Parliament is presumed to have been aware of, and would, in my view, undermine the objectives of the Act.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-30", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 68–69", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "My understanding of the purpose of a policy grievance is to provide a forum through which issues relating to the application and interpretation of provisions of the collective agreement or an arbitral award are resolved on a principle basis. As I stated earlier, this is reinforced by section 232 of the Act which provides the adjudicator with declaratory powers and the ability to issue a compliance order, but no mention is made of individual redress. In such a context, I do not see the relevance of distinguishing between those policies affecting all of the employees in the bargaining unit and those affecting only a portion of the employees in the bargaining unit: the number of employees potentially affected is irrelevant to the determination of whether the employer is in principle in breach of the collective agreement. I cannot think of any policy reason why Parliament would have required that every employee included in a bargaining unit necessarily had to be affected by an employer action before a policy grievance could be presented.\n\nThe interpretation that I propose for the phrase “… [that the matter] relates to the bargaining unit generally” is also more consistent with the French version of subsection 220(1) of the Act,which refers to “… [matters that relate] à l’unité de négociation de façon générale.” The legislator did not state that the matter had to relate to “toute l’unité de négociation” or to “tous les fonctionnaires au sein de l’unité de négociation.” Clearly, what is intended here is that the matter must relate to an alleged violation of the collective agreement in principle, as opposed to a situation involving an aggrieved employee seeking specific corrective action by way of an individual (or group) grievance.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-31", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "para 70", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "That interpretation is also consistent with the state of the jurisprudence with respect to policy grievances. On that matter, I rely on the extract from Brown and Beatty referred to by counsel for the bargaining agent, and on the authors, Blouin and Morin of Droit de l’arbitrage de grief, 5th ed. (2000), who, at page 169, offer a useful definition of policy grievance, which they refer to as a union grievance: [Translation] III.43 – A grievance by a union, in its capacity as a representative, relates to matters that affect the interests of the community of employees included in the bargaining unit. Thus, a grievance about compliance with procedures regarding position posting, promotions or transfers or the establishment of an employer policy on a working condition, to name only a few examples, can be filed as a union grievance. Such initiatives are based on the union’s duty as a signatory and administrator of the collective agreement to ensure the full application of each provision of that agreement for the benefit of the collective interest… [Emphasis added]", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-32", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 71–72", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "The employer relied on the decision in Canadian Broadcasting Corp. I believe that it is important to keep in mind that the issue in that case was different from the one in this case and that the question of whether a policy grievance could be filed with respect to a policy affecting only a portion of the employees in the bargaining unit was not at issue. The policy at issue in Canadian Broadcasting Corp. clearly applied to all of the employees in the bargaining unit, and the only issue to be determined was whether the policy could be challenged through a policy grievance rather than through individual grievances. I believe that the terminology used by the arbitrator in defining and distinguishing the individual and group grievances from the policy or hybrid type of grievances and more specifically the use of “all members of the bargaining unit” as interchangeable with “members of the bargaining unit generally” must be viewed in light of the context of the grievance at issue. The situation in that case did not require any nuance with respect to the definition of a “policy grievance”, since the question relating to the policy affecting a portion of employees of the bargaining unit as opposed to the totality of the employees in the bargaining unit was not at issue. Therefore I do not believe that the reference by the arbitrator to the expression “that is of concern to all members of the bargaining unit” can be read to provide support to a proposition requiring that in all circumstances, a policy grievance should be limited to subject-matters that concern all the employees in the bargaining unit.\n\nMy interpretation of subsection 220(1) of the Act leads me to conclude that I have jurisdiction to consider the merits of this case.", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-358203-33", - "doc_type": "caselaw", - "act_code": "2008 PSLRB 84", - "act_short": "PSAC v TB (pay)", - "act_name": "Public Service Alliance of Canada v. Treasury Board", - "section": "", - "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", - "marginal_note": "paras 73–75", - "heading": "Collective agreement and pay administration policy grievance", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "For all of the above reasons, I make the following order:\n\nThe employer’s objection to my jurisdiction is dismissed.\n\nThe parties will be contacted by the Board’s Registry to schedule a continuation of the hearing on the merits of this policy grievance. October 16, 2008. Marie-Josée Bédard, adjudicator", - "current_to": "2008-10-16", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" - }, - { - "id": "fpslreb-360456-1", - "doc_type": "caselaw", - "act_code": "2003 PSSRB 52", - "act_short": "Kinhnicki", - "act_name": "Kinhnicki v. Canada Customs and Revenue Agency", - "section": "", - "citation": "Kinhnicki v. Canada Customs and Revenue Agency, 2003 PSSRB 52", - "marginal_note": "excerpt 1", - "heading": "Occupational health and safety; a refusal to work in a customs context", - "part": "Federal Public Sector Labour Relations and Employment Board", - "division": "", - "text": "Public Service Staff Relations Act\n\nBefore the Public Service Staff Relations Board\n\nBETWEEN LINDA KINHNICKI AND TERRY DUPUIS Complainantsand CANADA CUSTOMS AND REVENUE AGENCY Employer\n\nHeard at Saskatoon, Saskatchewan, January 14 and 15, 2003.\n\nFrancine Chad Smith, Q.C., Board Member\n\nDATED this 26th day of June 2003.", - "current_to": "2003-06-26", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/360456/index.do" - }, - { - "id": "cirb-519772-1", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 1–7", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "This decision is about the union’s duty of fair representation (DFR) towards its members in the face of a mandatory vaccination policy unilaterally implemented by the employer. The specific issue to be determined in this case is whether the union’s decision not to pursue a policy grievance contesting the employer’s mandatory vaccination policy, despite the insistence of a group of bargaining unit members, was arbitrary, discriminatory or made in bad faith.\n\nFor the reasons that follow, the Board finds that, in this case, the union did not breach its DFR by refusing to file a policy grievance with respect to the employer’s mandatory vaccination policy.\n\nThe complainant, Ms. Ingrid Watson (the complainant), is a flight attendant (cabin personnel) with Air Canada (the employer). She is a member of the bargaining unit represented by the Canadian Union of Public Employees – Air Canada Component (CUPE ACC or the union) and has almost 23 years of service with Air Canada. She works out of the Air Canada base in Calgary, Alberta, and is part of CUPE Local 4095.\n\nA collective agreement is in effect between the parties.\n\nMs. Watson is on a full-time flight release and is designated by Local 4095 as the Chair of the local preferential bidding system (PBS) committee. She has been a member of the PBS committee since 2011. In this role, she and other members of the committee develop monthly schedules in accordance with employee preferences and seniority to meet Air Canada’s operational and classification requirements.\n\nMs. Watson indicates that prior to the pandemic, she worked a portion of her time from home.\n\nThe chronology of events is straightforward and largely uncontested as it is based on email announcements and email exchanges.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-2", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 8–10", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "On August 13, 2021, the Government of Canada announced its intent to require all employees in the federally regulated air, rail and marine transportation sectors to be vaccinated by no later than the end of October 2021. This government policy would extend to employees in these sectors and also to certain travellers. The union communicated an update to its membership by email that same day, sharing this government announcement and indicating its support for vaccination as a proven strategy to mitigate the threat of COVID-19.\n\nOn August 19, 2021, the union sent out a message to all members through its members’ portal in which it indicated that it had sought a preliminary legal opinion regarding the government’s announcement of a mandatory vaccination policy in the air transportation industry. In that communication, the union provided a link to a copy of the legal opinion for members to consult.\n\nAir Canada announced on August 25, 2021, that it was implementing a mandatory vaccination policy that would apply to all employees working for it. The policy required that all employees be fully vaccinated by October 31, 2021, subject to the employer’s duty to accommodate. In this communication, Air Canada asked employees to report their vaccination status through the vaccination reporting tool no later than September 8, 2021. It also indicated that “failure to be fully vaccinated by October 30, 2021 will have consequences up to and including unpaid leave or termination, except for those who qualify for accommodation.”", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-3", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "para 11", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "A set of questions and answers accompanied the vaccination requirement announcement. The consequences of choosing not to get vaccinated were presented as follows: 13. What happens if I choose not to get vaccinated? I understand I won’t be able to travel but I’m fine with that. A: We understand that there will be a small number of people who will want to be exempt for medical or other substantiated reasons; we will evaluate those on a case-by-case basis. While we will meet all our Duty to Accommodate obligations, we expect there will be very few circumstances in which exemptions would be granted. Consequences will be up to and include unpaid leave and termination. Employees who choose not to get vaccinated would ultimately be unable to fulfill their roles and the applicable terms of the appropriate collective agreements or management policies may come into effect. More information will be outlined in the policy once it is finalized following discussions with Health and Safety representatives and our union partners.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-4", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "para 12", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "There was also information provided regarding the suspension of bidding for in-flight personnel who did not report and document their first vaccination by September 8, 2021: 17. Will there be a grace period if I don’t get vaccinated in time? A. Our deadlines are informed by current Canadian government advice regarding the implementation of mandatory vaccination. However, we are also focused on meeting that timeline before the end of the Fall and the beginning of our busy holiday season. This does not give us much leeway. In order to plan our operation and fulfill our obligations to our customers, Air Canada requires sufficient time to assess how many of our employees will have chosen to be vaccinated. This means that our dates for first vaccinations, full vaccinations, reporting and documentation should be considered firm. We do not plan to extend a grace period, except (and only where necessary) in certain international locations where we have determined vaccines are not accessible within our time frame. In these cases, safety measures and precautions will remain in place in those locations to ensure everyone’s safety. That said, we urge employees in these locations to make all efforts to obtain their vaccinations as quickly as possible. Deadlines are as follows: Sept. 8: All vaccinated employees must report their status and upload their proof of vaccination. All currently unvaccinated employees must have had at their first shot and uploaded their documentation. As of this date, any employee who has not reported and documented at least their first shot will be considered unvaccinated for planning purposes.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-5", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 12–17", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Please note: Operating crews who have not reported and documented at least a first vaccination by September 8th and a second vaccination by October 8th you will not be eligible to bid effective with the November block month.\n\nFurther information regarding the suspension of bidding was also provided in a separate communication from the Vice President, In-Flight Service that same day.\n\nOn August 26, 2021, Ms. Watson sent a text message to Local 4095 President, Ms. Kim Wentzell, regarding the mandatory vaccination policy. Ms. Wentzell responded that the union would challenge any discipline, including termination, that resulted from the application of the policy.\n\nOn August 27, 2021, the union issued a further update on the members’ portal acknowledging the different perspectives of members regarding vaccination but indicating its agreement that vaccines were critical to providing a safe work environment for employees and ensuring a recovery of the airline industry. The union also stated its intention of filing grievances for individuals that faced discipline as a result of the policy.\n\nOn August 30, 2021, Ms. Nadine Perrin, on behalf of a group of employees that included Ms. Watson, wrote to the union, expressing concerns with the impact of the vaccination policy and requesting information from the union on the assessments it had conducted with respect to vaccination and what steps it was taking to represent those who did not support the mandatory vaccination policy.\n\nMs. Wentzell responded to Ms. Perrin on the same date and invited her to consult the union’s information bulletins that outlined its approach. She also indicated that the union was in consultation with legal counsel to assess the policy and determine whether a grievance would be filed.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-6", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 18–19", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The union received a second legal opinion on August 31, 2021. This opinion confirmed the advice previously received in the first legal opinion. It concluded that the Air Canada policy would likely withstand a challenge through grievance arbitration and, further, that a challenge under the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982) (the Charter) to the government’s vaccine mandate was not likely to succeed.\n\nOn September 3, 2021, the union communicated an update to its membership on the vaccination policy. It indicated that it had received feedback from its members who were for and against the policy. It also stated that it had obtained a second legal opinion and consulted with other unions at Air Canada and advised that the employer’s policy would likely be deemed reasonable by an arbitrator. It indicated that it would be focusing on the policy’s implementation and administration and on supporting members through the grievance procedure should discipline be imposed as a result of the policy. It also noted that if members are not able to attend work because they choose not to be vaccinated, this would not necessarily mean that the Charter has been breached.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-7", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 20–23", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "On September 9, 2021, Air Canada sent an email to those employees who had not yet reported their vaccination status. In this message, it indicated that if an employee was not vaccinated or did not report their status by October 30, 2021, they would be subject to certain consequences. In particular, unvaccinated employees would be barred from entering the workplace, would be considered unavailable to fulfill their duties and would be placed on unpaid leave without benefits for a period of six months. It also specified that those who did not receive a second vaccination by October 8 would not be eligible to bid for the November block month.\n\nOn September 10, 2021, Air Canada issued and published its updated COVID-19 vaccination policy. This version of the policy specified that employees who were not fully vaccinated by October 30, 2021, and who were not exempted from the vaccination requirement would be placed on an unpaid leave of absence for up to six months, following which their employment status would be reviewed.\n\nOn September 14, 2021, counsel for Ms. Watson wrote to Mr. Wesley Lesosky, the President of CUPE ACC, asserting that the union was acting in a manner that was arbitrary, discriminatory and in bad faith with respect to the DFR owed to Ms. Watson and other members and asking that it initiate a grievance against the Air Canada policy.\n\nA representative of CUPE ACC responded to this communication on behalf of Mr. Lesosky on September 17, 2021, indicating that individual complaints would be dealt with on a case-by-case basis and that individual grievances would be filed where appropriate.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-8", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 24–27", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Counsel for Ms. Watson expressed dissatisfaction with this response in an email dated September 22, 2021, and asked that Ms. Watson’s demands be met by September 24, 2021. If no action was taken by the union, counsel indicated that a DFR complaint would be filed with the Board.\n\nOn October 6, 2021, the federal government announced its plans to proceed with mandating COVID-19 vaccination across the federal public service and the federally regulated transportation sectors. This announcement made it clear that employers in the federally regulated air, rail and marine transportation sectors would have until October 30, 2021, to establish vaccination policies to ensure their employees are vaccinated. It also announced that travellers departing from Canadian airports would be required to be fully vaccinated.\n\nOn October 22, 2021, the union issued an update to the membership titled “Vaccine Status Reporting.” In this message, the union discussed certain issues with the uploading of proof of vaccination documents and also indicated that it would review all cases in which a member was removed from service for non-compliance with the vaccination policy.\n\nOn October 29, 2021, the federal Minister of Transport issued an Interim Order pursuant to the Aeronautics Act (Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, No. 43) (Order No. 43). This order directed all airlines to adopt and implement a mandatory vaccination policy for their employees by October 31, 2021, providing for limited exemptions due to a certified medical contraindication or religious grounds.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-9", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 28–30", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Counsel for Ms. Watson communicated with CUPE ACC on November 9, 2021, to advise that Air Canada had denied Ms. Watson’s request for a medical exemption from the vaccination policy. On November 11, 2021, a representative of Local 4095 filed an individual grievance for Ms. Watson. This grievance was denied by Air Canada at level 1 of the grievance procedure. The grievance was forwarded to the CUPE ACC grievance committee and is one of a number of individual grievances filed by the local unions in respect of the application of the COVID-19 vaccination policy.\n\nThe complainant made a specific request for a hearing, indicating that this matter would require significant document disclosure and an assessment of the credibility of union witnesses.\n\nThe Board is not obliged to hold an oral hearing in every case. The Board’s authority to rely on the written submissions of the parties and to make its determination without holding an oral hearing is well established. Section 16.1 of the Canada Labour Code (the Code) expressly allows the Board to proceed without an oral hearing. In addition, sections 10, 12 and 40 of the Canada Industrial Relations Board Regulations, 2012, are designed to give parties a full opportunity to make submissions, directing them to provide full particulars of the facts and the grounds for their position together with any supporting documents.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-10", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 31–34", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board will normally not hold an oral hearing unless there are issues of credibility on questions that are central to its determination or other sound industrial relations reasons that require it to hear the witnesses in person. There is also no requirement for the Board to give notice to the parties of its intention not to hold a hearing (see NAV CANADA, 2000 CIRB 88; and NAV Canada v. International Brotherhood of Electrical Workers, 2001 FCA 30).\n\nIn the matter under review, the Board invited the union and the employer to submit written responses, and the complainant had an opportunity to provide a final reply. Having reviewed all the written documentation, the Board has determined that it is not necessary to conduct an oral hearing and that the matter can be decided on the basis of the written submissions.\n\nIn order to decide this matter, the Board must determine whether the union acted in a manner that was arbitrary, discriminatory or in bad faith in making its decision not to pursue a grievance challenging the employer’s mandatory vaccination policy.\n\nThe union’s DFR is set out in section 37 of the Code, which reads as follows: 37 A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-11", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "para 35", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board has described the factors it considers when deciding whether a union has engaged in arbitrary, discriminatory or bad faith conduct in its case law. The Board’s decision in McRaeJackson, 2004 CIRB 290, provides a concise summary of these relevant factors: [27] A union must not act in bad faith; that is, with improper purpose. Three examples of this conduct include: the personal feelings of union officers influencing whether or not a grievance should be pursued; conspiring with the employer to have an employee disciplined or terminated; or, putting the ambitions of a group of employees who support a union official ahead of the interests of an individual employee. [28] A union must not discriminate on the basis of age, race, religion, sex or medical condition. Each member must receive individual treatment and only relevant and lawful matters must influence whether or not a grievance is referred to arbitration. It should be noted that not every instance of differential treatment is considered discrimination. For example, to refer one employee’s grievance to arbitration and not another where there are relevant considerations to support the distinction is not discriminatory. Nor is an agreement with the employer to give different or better working conditions to a group of employees because of workplace considerations (see Mario Soulière et al., [2002] CIRB no. 205; and 94 CLRBR (2d) 307). [29] A union must not act arbitrarily. Arbitrariness refers to actions of the union that have no objective or reasonable explanation, that put blind trust in the employer’s arguments or that fail to determine whether the issues raised by its members have a factual or legal basis (see John Presseault, supra, ...", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-12", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 35–37", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "[30] It is arbitrary to only superficially consider the facts or merits of a case. It is arbitrary to decide without concern for the employee’s legitimate interests. It is arbitrary not to investigate and discover the circumstances surrounding the grievance. Failure to make a reasonable assessment of the case may amount to arbitrary conduct by the union (see Nicholas Mikedis (1995), 98 di 72 (CLRB no. 1126), appeal to F.C.A. dismissed in Seafarers’ International Union of Canada v. Nicholas Mikedis et al., judgment rendered from the bench, no. A-461-95, January 11, 1996 (F.C.A.)). A non-caring attitude towards the employee’s interests may be considered arbitrary conduct (see Vergel Bugay et al., supra) as may be gross negligence and reckless disregard for the employee’s interests (see William Campbell, [1999] CIRB no. 8).\n\nIn DFR cases, the complainant bears the burden of proof. In other words, the person making the complaint must convince the Board that their union has breached its DFR.\n\nThe complainant’s main allegation is that the union’s decision not to pursue a policy grievance regarding Air Canada’s vaccination policy was arbitrary. She contends that the union did not seriously or sufficiently consider the prejudicial impact of the policy on a number of bargaining unit members who will not comply with the policy due to medical or other personal reasons. As a unionized employee, the complainant submits that she has no individual right to seek remedies in court or otherwise. Accordingly, the union has the duty to represent her and her colleagues who are negatively impacted by the policy.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-13", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 38–40", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "She argues that the union provided no explanation or detail regarding its involvement in negotiating the policy or attempts to improve or refine it in light of its impact on the rights of members. She also indicates that the union has arbitrarily refused to consult with the members to understand their concerns and to advocate for them.\n\nThe complainant alleges that the union acted in bad faith when it refused to provide an explanation for why it was not advancing a grievance against the employer’s vaccination policy. She states that she received no information on the union’s investigation of the issues or its consideration of the merits of her specific concerns. She submits that the union did not conduct a serious analysis of or sufficiently inquire into the issues raised, did not gather sufficient information to make a sound decision and had a dismissive attitude towards those members who oppose the vaccination policy. She further alleges that certain union officers’ personal feelings influenced the union’s decision not to file a grievance.\n\nIn her view, the collective agreement does not contemplate a vaccination policy and does not allow management to impose policies that require medical procedures as a condition of employment. The employer’s vaccination policy is not a proper exercise of management’s rights, and the union should have negotiated this policy with the employer or, alternatively, should have pursued a policy grievance. In failing to do so, she submits that the union is in breach of its duty to represent its members.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-14", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 41–43", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In addition, the complainant contends that the union simply accepted and relied upon bald conclusions contained in deficient legal opinions without further analysis or debate. She also questions whether the legal opinions were based on an accurate description of the legal question and asks that the Board order the disclosure of materials and information provided to legal counsel when the legal opinions were requested. She argues that the issue was not whether the government could impose a vaccination mandate on flight attendants but rather whether the employer’s policy was reasonable. In the absence of the employer’s final version of the policy or the government’s order, she submits that the legal opinions were based on hypothetical or speculative scenarios.\n\nFinally, the complainant indicates that other unions have successfully challenged similar mandatory vaccination policies and cites Arbitrator Stout’s decision in Electrical Safety Authority and Power Workers’ Union (COVID-19 Vaccination Policy), Grievance: ESA-P-24, November 7, 2021 (Ont.) (Electrical Safety Authority), as an example of this. In light of this decision, the union should have challenged Air Canada’s policy on behalf of those members who would be negatively affected by it. She argues that failing to do so is a breach of the duty owed to those members, and this breach is not mitigated by the fact that the union has offered to file individual grievances for members disciplined under or adversely affected by the policy.\n\nThe Board notes that the complainant did not argue or make specific allegations regarding discriminatory conduct on the part of the union.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-15", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 44–45", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "It is well established that an employee who is represented by a union does not have a right to pursue a grievance to arbitration; that is the role of the union as the exclusive bargaining agent (see McRaeJackson). As outlined in Kasim, 2008 CIRB 432, the union’s DFR does not mean that an employee has an absolute right to have grievances filed and taken to arbitration. It is the union’s role to determine which grievances are filed or proceed through to arbitration and which are settled or withdrawn. It is not required to advance grievances that, in its best judgment, are not likely to succeed. The union has considerable discretion in making decisions that involve the representation it provides to its members.\n\nThere is no doubt that the COVID-19 pandemic has presented unprecedented challenges for employers, unions and the employees they represent. Over the span of some 20 months, the state of the pandemic has continuously evolved and the knowledge base around the effectiveness of different measures has increased. The airline industry, in particular, has had to rapidly and constantly respond to the challenges that COVID-19 has presented for the employees as well as for the broader operations.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-16", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 46–47", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The union, as the bargaining agent for flight attendants, has had to respond quickly to evolving circumstances and at various levels to ensure an appropriate and coherent approach in the representation of its members. This has required it to constantly adapt to a very fluid and dynamic situation. When COVID-19 vaccines became available in early 2021, the union leadership made efforts to secure early access to them for flight attendants and, based on public health guidance, encouraged all its members to get vaccinated so all could be ready to return to service. At that time, there was no requirement to be vaccinated. The union recognized that a large number of its members were asking for priority access to the vaccines while other members had concerns about their efficacy or safety.\n\nAlthough the complainant argues that the union’s conduct or decision not to pursue a policy grievance was arbitrary, the Board does not agree. The union was well aware of the objection of certain employees to the vaccination policy. As the chronology of events set out above demonstrates, the union provided regular information and kept the membership up to date on developments, government announcements and the employer’s approach and response as the events unfolded.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-17", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 48–49", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Air Canada issued its initial vaccination policy in April 2021, in which it strongly encouraged employees to get vaccinated. This version of the policy also provided that, in certain instances, employees would be required to be vaccinated and, in the event that they did not respect the guidelines, could be subject to discipline, up to and including termination of employment. Following the communication of this policy, the union posted a message on the members’ portal indicating that it had raised potential areas of concern with Air Canada regarding the policy and its alignment with the collective agreement and the Canadian Human Rights Act (CHRA).\n\nOn August 13, 2021, the Government of Canada officially announced that it would require that all employees working in the federally regulated air, rail and marine transportation sectors be vaccinated by no later than the end of October 2021. The union sought a legal opinion immediately upon learning of the government’s intention to direct airlines to implement a mandatory vaccination policy. It shared that legal opinion with the membership on August 19, 2021. This opinion concluded that the likelihood of success in challenging the employer’s policy was very low.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-18", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 50–53", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Further information was communicated by the union shortly after Air Canada announced its mandatory vaccination policy on August 25, 2021. In this message, the union acknowledged that mandatory vaccination was not welcomed by all members but indicated its support for vaccines as a critical tool to help ensure a safe work environment for everyone and the economic recovery of the airline industry. It highlighted the concern with the timelines established in the policy but clearly stated that unvaccinated employees would only be subject to flight removal starting in November 2021. The union also made clear in this statement that it would challenge individual discipline issued to members who chose not to be vaccinated and that it would seek alternative accommodations.\n\nThe union sought a second legal opinion from a different counsel on Air Canada’s updated mandatory vaccination policy. This legal opinion confirmed the advice received in the first opinion and that a challenge to the policy itself was unlikely to be successful.\n\nThe complainant argues that the union should have debated the legal opinions, including their bases and analyses. She submits that the opinions do not answer the correct question and address the government’s order rather than the employer’s policy.\n\nWith respect, the complainant has not persuaded the Board that the decision not to pursue a policy grievance challenging the employer’s vaccination policy was arbitrary. In the Board’s view, the union turned its mind to the issues at play and was fully engaged with its membership.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-19", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "para 54", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The fact that the federal government issued an order directing the airlines to adopt a vaccination policy is a key distinction from other cases where employers were not bound by such a directive. Even if Order No. 43 was not issued until late October 2021, after Air Canada introduced the policy, the federal government had made its intention clear in its announcement of August 13, 2021, that it would impose a vaccination requirement on the airline industry. It is important to note that the employer is obligated by the terms of Order No. 43 to have a vaccination policy in place and that the terms of that order are very specific. Even though Air Canada did not have the precise terms of the order in August or September 2021, the government had made statements that strongly indicated that a mandatory vaccination requirement would be the likely outcome.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-20", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 55–56", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The complainant argues that the union should have challenged the employer’s policy based on the successful outcomes of other such challenges made by other unions. As an example, the complainant cites Electrical Safety Authority. However, the Board notes that, in that case, the employer was not under a government order to establish a vaccination policy. The arbitrator discussed the nuanced approach that must be taken when assessing a workplace policy that infringes upon individual employee rights and the balancing of interests that is necessary to determine its reasonableness. He also noted the fact that the employer was not under a government order to implement a vaccination policy: [20] There can be no doubt that the risks associated with contracting COVID-19 are serious to both the individual and society. Individual response to infection varies, but the higher the number of infections, the higher the number of admissions to hospitals and intensive care units (ICUs). The strain on our healthcare system has been immense and our long-term care system has suffered greatly, exposing flaws in these systems that need to be addressed. However, it is for the democratically elected governments to address general public health issues, not employers. At this point there is no government mandate that all ESA employees must be vaccinated. (emphasis added)\n\nUltimately, Arbitrator Stout concluded that, in consideration of the circumstances and context of that specific workplace, the policy was unreasonable.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-21", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 57–59", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "It is important to note that Arbitrator Stout also referenced the decision of Arbitrator Von Veh in which a mandatory vaccination policy was found to be reasonable given the context in which the employees worked (see United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd. (Policy Grievance), [2021] O.L.A.A. No. 435 (QL)).\n\nIt is within this context that the union sought a legal opinion on its chance of success with respect to a policy grievance challenging Air Canada’s mandatory vaccination policy. Not only is the workplace context of an airline particularly different and distinct from that of most other industries, but the federal government clearly indicated that its intention was to direct all employers in the air, rail and marine transportation industries to implement mandatory vaccination policies. This was formalized in Order No. 43 issued by the Minister of Transport on October 29, 2021.\n\nThe complainant is of the view that the union did not provide the relevant considerations to its legal counsel or that it did not ask the correct question on which to base the legal opinions. With respect, the Board is not prepared to entertain this argument. It is not for the Board to evaluate what question was put to counsel or which considerations were communicated as the basis for their legal advice. The Board has generally been deferential to a union’s reliance on its counsel’s legal opinion (see Presseault, 2001 CIRB 138), and it will not engage in a microscopic review of those opinions unless there are very unusual circumstances. Correspondingly, the Board will not order the production of any documents on which the legal opinions were based, as the complainant requested.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-22", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 60–62", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In this particular case, and given the complex issues at play, the union sought two legal opinions and put the question of whether to pursue a policy grievance to the executive committee on September 3, 2021. The complainant is of the view that the union did not substantively deliberate on the issues and the relevant factors. However, by this time, the issue had been at the forefront of the union’s concerns for some time. The union was well aware of the views of certain members who, for various personal reasons or beliefs, were opposed to vaccination. In the end, it determined that its efforts and resources would be better spent on individual cases in order to seek proper accommodation.\n\nAs indicated, there is no absolute right or obligation to pursue a particular grievance to arbitration, even if an employee insists on it. It is well established that the decision to pursue a grievance is the union’s to make. It must make that decision after proper consideration of the circumstances. In this case, the Board is of the view that the union turned its mind to the issue and took the necessary steps to evaluate its chance of successfully challenging the policy through the grievance procedure or otherwise. The Board cannot conclude that the union’s decision was arbitrary.\n\nThe Board has repeatedly stated that it is not necessarily a breach of the DFR when a union makes a decision that favours one group of employees over another (see McRaeJackson; and Crispo, 2010 CIRB 527). Unions routinely make difficult decisions that require balancing the interests of various groups amongst its membership. This is true in collective bargaining and in the decisions to present grievances.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-23", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "para 63", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The complainant asserts that the union ignored the concerns and interests of approximately 10 percent of the members in the bargaining unit, who will bear the consequences of the policy. She maintains that the union acted in bad faith as it adopted a dismissive attitude and did not inquire sufficiently or communicate with those members who raised questions or concerns with respect to the mandatory vaccination policy.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-24", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "para 64", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In the context of this policy, there is no doubt that those members who choose not to be vaccinated or not to disclose their vaccination status will be impacted differently than those who comply with the policy. However, the duty that is imposed on the union does not mean that it has the obligation to pursue every grievance or to intervene in every situation where an individual employee’s interests are affected; it means that the union must consider the interests of all members of the bargaining unit and act fairly. The Supreme Court of Canada made the following comments in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298: The principles set out in Gagnon clearly contemplate a balancing process. As is illustrated by the situation here, a union must in certain circumstances choose between conflicting interests in order to resolve a dispute. Here the union’s choice was clear due to the obvious error made in the selection process. The union had no choice but to adopt that position that would ensure the proper interpretation of the collective agreement. In a situation of conflicting employee interests, the union may pursue one set of interests to the detriment of another as long as its decision to do so is not actuated by any of the improper motives described above, and as long as it turns its mind to all the relevant considerations. The choice of one claim over another is not in and of itself objectionable. Rather, it is the underlying motivation and method used to make this choice that may be objectionable. (pages 1328–1329)", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-25", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 65–67", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In this case, the union supported vaccination generally as an effective means of ensuring the health and safety of its members. Even if this position by the union is in opposition to certain members’ views, this, in and of itself, is not sufficient to find the union in breach of its DFR. In the current pandemic, there is overwhelming scientific evidence of the effectiveness of vaccines in the effort to eradicate COVID-19. Health authorities across Canada have stated that vaccination is one of the most effective ways to prevent severe illness, hospitalization and death from COVID‑19.\n\nAs Arbitrator Stout stated in Electrical Safety Authority: [6] I note that this case is not about the merits of being vaccinated or the effectiveness of COVID‑19 vaccines. The science is clear that the COVID-19 vaccines currently being used are safe and effective at reducing the likelihood of becoming seriously ill or dying from this horrible disease. Moreover, vaccinating the population is necessary in order to secure the fragile healthcare system and eventually put this pandemic behind us.\n\nThe complainant and other members may be opposed to vaccination, but the scientific evidence overwhelmingly points to vaccination as the most effective tool to get us past these unprecedented global circumstances. The union took a stance that is aligned with this evidence. A large majority of the membership supports the vaccination policy, as is demonstrated by the high vaccination rate amongst the employees in the bargaining unit. There is simply no evidence to suggest that the union acted in bad faith in adopting a position that supports and favours vaccination for its members.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-26", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "para 68", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The complainant suggests that the union failed to consult with those members that opposed the policy and that it did not provide a rationale for not advancing their concerns through the grievance procedure. However, the union is not obliged to consult each and every member when assessing whether to challenge an employer policy that impacts the membership in different ways. In a case involving a mandatory Hepatitis A vaccination policy, the British Columbia Labour Relations Board dismissed an employee’s allegation that the union had acted arbitrarily or in bad faith because it had not consulted with the membership prior to engaging in discussions with the employer. The Board agrees with the following reasoning in Gordon v. Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40, BCLRB No. B138/2004; 2004 CanLII 65459 (Gordon): Gordon also suggests that the Union discussions with the Employer about the mandatory inoculation program were improper because employees were not consulted. As the exclusive bargaining agent, part of the Union’s job in representing employees is to engage in discussions with the Employer regarding workplace issues: see, for instance, Section 53 of the Code. While consultation with employees over changes in working conditions such as occurred at the Capri is encouraged, it is not necessarily a requirement under the Code. As long as the Union does not act in a way that is arbitrary, discriminatory or in bad faith the duty of fair representation is not breached. In this case, the Union satisfied itself that the Employer’s actions were reasonable and legally permissible, and it ensured that employees were permitted the exceptions available to them by law.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-27", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 68–70", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In the circumstances, I do not find that the Union’s agreement to the program or its failure to consult employees beforehand supports a breach of Section 12. (page 9)\n\nAlthough CUPE ACC did not engage in individual discussions with the complainant, it did communicate regularly with the membership to provide status updates in what was and continues to be a rapidly changing environment. Through these communications, the union made it clear that it was aware of the different views on the issue of vaccination. It was also aware of the complainant’s specific concerns communicated to it through Ms. Perrin’s letter of August 30, 2021. As this matter concerned a policy grievance, it concerned the membership as a whole. The union had to make a decision in the interest of all the employees in the bargaining unit. As in Gordon, the union satisfied itself that the policy was within the parameters allowed by the legislative framework and provided for exceptions based on human rights grounds. Further, the union made clear that it would pursue individual grievances to seek accommodations where those were possible. An individual grievance is in fact proceeding with respect to Ms. Watson’s particular circumstances. The Board notes that it would be premature at this stage to pronounce on the union’s approach in that process.\n\nThe Board is satisfied that the union did not act in an arbitrary or discriminatory manner or in bad faith in its approach and communication with the membership as it relates to its decision not to pursue a policy grievance regarding the employer’s vaccination policy.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-28", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 71–73", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The complainant also argues that the collective agreement does not contemplate a vaccination policy and that the employer has no management right to implement such an invasive medical procedure as a condition of employment. In her view, the union should have grieved the policy or demanded that the employer negotiate the terms of the policy. Failure to do so, in her view, is a breach of the union’s duty to represent her fairly.\n\nThe union’s interpretation of the collective agreement differs from that of the complainant. The union is of the view that the absence of specific language in the collective agreement does not mean that the employer’s vaccination policy is invalid. Although the union recognizes that it can challenge a new policy through a grievance, it is of the view that the management rights clause in the collective agreement does not prevent the employer from introducing new policies, as long as these are not inconsistent with terms of the collective agreement or other applicable legislation, such as the CHRA.\n\nThe Board accepts that the union has the ultimate responsibility to decide on the interpretation of the collective agreement (see Crispo) and, as such, in this case, that it retains the discretion to determine whether it should challenge the vaccination policy as a proper exercise of management rights. The fact that the complainant disagrees with the union’s interpretation of the collective agreement is not sufficient to establish a breach of the union’s duty.", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-519772-29", - "doc_type": "caselaw", - "act_code": "2022 CIRB 1002", - "act_short": "Watson", - "act_name": "Watson", - "section": "", - "citation": "Watson, 2022 CIRB 1002", - "marginal_note": "paras 74–75", - "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "After careful consideration of the complainant’s allegations and the written submissions of the parties, the Board is not persuaded that the union’s approach and its decision not to pursue a policy grievance challenging the employer’s COVID-19 vaccination policy was arbitrary, discriminatory or made in bad faith. The DFR complaint is dismissed.\n\nThis is a unanimous decision of the Board. ____________________ Ginette Brazeau Chairperson ____________________ Elizabeth Cameron Member ____________________ Daniel Thimineur Member", - "current_to": "2022-01-19", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" - }, - { - "id": "cirb-5478-1", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 1–4", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Canada Industrial Relations Board (the Board) receives large numbers of complaints from employees alleging that their trade union has breached its duty of fair representation. Annually, these complaints represent close to fifty percent of unfair labour practice complaints received by the Board and monopolize a great deal of its resources without significantly advancing the objectives of Part I of the Code, which it is called upon to interpret and apply. Indeed, most of these complaints are dismissed on the basis that the facts do not establish sufficient grounds for a successful complaint.\n\nThe demands placed on the resources of trade unions, the Board and the labour relations system as a whole prompted the Board to review how to address these complaints while satisfying the principles of natural justice that govern all administrative tribunals and at the same time giving complainants the opportunity to have a complaint reviewed.\n\nA general observation that stems from a review of the numerous complaints is that most complainants do not fully understand the basis of the duty of fair representation imposed by the Code.\n\nTherefore, in order to provide guidance to all complainants, the Board decided to address misunderstandings concerning the extent of the duty of fair representation by trade unions in a decision that would serve as a reference to litigants and a basis for Board decisions in upholding or dismissing such complaints.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-2", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 5–7", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The principles that follow reflect the most important areas of the Board’s authority to decide section 37 complaints. Decisions cited in support of these principles are, for the most part, related to cases decided by the Board since the 1999 amendments to the Code and the appointment of the new Canada Industrial Relations Board and to important cases decided by the Supreme Court of Canada and the Federal Court of Appeal. Theses cases represent a comprehensive cross-section of established case law. For case law issued by the former Canada Labour Relations Board or other reported cases, reference may be made to two important compendiums of Board case law (Ronald M. Snyder, The 2003-2004 Annotated Canada Labour Code (Toronto: Thomson-Carswell, 2003) and Graham J. Clarke, Clarke’s Canada Industrial Relations Board, Vol. 2 (Aurora: Canada Law Book, 2004) as well as the Board’s published decisions.\n\nThe duty of fair representation exists as a counterpart to the union’s exclusive authority to deal with grievances under the collective agreement.\n\nWhen the Board certifies a trade union, the union becomes the exclusive representative of a unit of employees in its relationship with the employer. Section 36(1)(a) states as follows: 36.(1) Where a trade union is certified as the bargaining agent for a bargaining unit, (a) the trade union so certified has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit; ...", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-3", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 8–9", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "This relationship involves the negotiation and signing of a collective agreement. All collective agreements negotiated under the Code must contain a provision for final settlement of disputes, also known as the grievance procedure (section 57 of the Code). Unions enforce the collective agreement by filing grievances that allege that the employer has violated the terms of the collective agreement. Unions have a great deal of discretion when they deal with grievances. They may settle or drop grievances or decide not to refer them to arbitration, even if the affected employee disagrees (see Fred Blacklock et al., [2001] CIRB no. 139).\n\nThe union’s authority to deal with grievances is counterbalanced by the duty provided under the Code to treat all members of a bargaining unit fairly. This is what is known as the duty of fair representation. This duty is described in the Code as follows: 37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-4", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "para 10", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The duty of fair representation is a fundamental part of Canadian labour relations legislations in every jurisdiction, except New Brunswick, and has been the subject of longstanding and consistent interpretation not only by labour boards but by the courts. The principles that govern the union’s duty have been enshrined in this quotation from the Supreme Court of Canada in Canadian Merchant Service Guild v. Guy Gagnon et al., [1984] 1.S.C.R. 509: 1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit. 2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion. 3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other. 4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful. 5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee. (page 527)", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-5", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 11–13", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "These criteria are applied in deciding whether a union properly exercised its discretion as to whether to refer an employee’s or former employee’s grievance to arbitration. In accordance with these criteria, the Board examines the union’s conduct as to how the union managed the employee’s grievance (see Vergel Bugay et al., [1999] CIRB no. 45; 57 CLRBR (2d) 182; and 2000 CLLC 220-034). This is not an appeal of the union’s decision not to refer a grievance to arbitration but an assessment of the union’s conduct as to how it handled a grievance (see John Presseault, [2001] CIRB no. 138; and Robert Adams, [2000] CIRB no. 95; and 73 CLRBR (2d) 132 upheld by Canadian Council of Railway Operating Unions v. Robert Adams et al., judgment rendered from the bench, no. A-719-00, February 13, 2002 (F.C.A.)). The Board rules on the union’s decision-making process and not the merits of grievances (see Gaétan Coulombe, [1999] CIRB no. 25).\n\nAlthough the Board does not rule on the merits of an employee’s grievance, it may review the facts of a grievance in order to understand whether the union’s investigation reflected the worthiness and seriousness of an employee’s case (see Raynald Pinel, [1999] CIRB no. 19; and Robert Adams, supra).\n\nIn a complaint under section 37, the employee bears the onus (or burden of proof) of presenting evidence that is sufficient to raise a presumption that the union has failed to meet its duty of fair representation. The burden of proof is also described as the requirement to establish a prima facie case, or said differently, the requirement to bring forward sufficient relevant facts to establish a violation of the Code. The union is entitled to rebut the complainant’s allegations (see Terry Griffiths, [2002] CIRB no. 208; and 89 CLRBR (2d) 135).", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-6", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 14–15", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "If the Board finds that the union has breached the duty of fair representation, it can order a number of remedies that are outlined in section 99 of the Code. These remedies can include, for example, extending the timeliness of the grievance process and/or issuing a declaration that the union breached its duty and/or awarding damages. The leading case on the issue of remedies is Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, which was also discussed and applied in Via Rail Canada Inc. v. Cairns (2004), 241 D.L.R. (4th) 700 (F.C.A., no. A-273-03); Via Rail Canada Inc. v. Cairns, [2003] F.C.J. No. 1256 (QL); Via Rail Canada Inc. v. Cairns, [2003] F.C.J. No. 1167 (QL); International Brotherhood of Locomotive Engineers v. Cairns, [2002] F.C.J. No. 585 (QL); International Brotherhood of Locomotive Engineers v. Cairns et al. (2000), 252 N.R. 160 (F.C.A.); and VIA Rail Canada Inc. v. Cairns et al. (2000), 261 N.R. 24 (F.C.A.).\n\nThe union’s duty of fair representation is predicated on the requirement that employees take the necessary steps to protect their own interests. Employees must make the union aware of potential grievances and ask the union to act on their behalf within the time limits provided in the collective agreement. They must cooperate with their union throughout the grievance procedure, for example by providing the union with the information necessary to investigate a grievance, by attending any medical examinations or other assessments.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-7", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 16–19", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Employees must follow the union’s advice as to how to conduct themselves while the grievance process is underway. Employees must attempt to minimize their losses, for example by seeking new employment if they have been dismissed, or attending retraining if this will increase their chances of re-employment.\n\nIf an employee is neglectful in any of these regards, a claim before the Board will likely be unsuccessful (see Jacques Lecavalier (1983), 54 di 100 (CLRB no. 443)).\n\nThe Board will not usually uphold a complaint where the union obtained a reasonable settlement, which the complainant subsequently rejected (see Yvonne Misiura, [2000] CIRB no. 63; and 59 CLRBR (2d) 305). However, the settlement must take into consideration the employees’ legitimate rights under the collective agreement (see Clive Winston Henderson, [1999] CIRB no. 29; and 2000 CLLC 220-006).\n\nIn most collective agreements, employees do not have the absolute right to have their grievance referred to arbitration (see Garry Little, [2001] CIRB no. 114), even if this involves serious discipline or termination (see Yvonne Misiura, supra) or even forced resignation (see Tadele Lemi, [1999] CIRB no. 24). Again, the Board’s role is to look at the process as to how the union reached its decision (see Ghislaine Gagné, [1999] CIRB no. 18).", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-8", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "para 20", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Code gives a certified union exclusive authority over the negotiation and administration of the collective agreement because this is part of being an effective spokesperson in representing employees of the bargaining unit as a whole. The power of the union in its relationship with the employer is derived from the fact that it represents employees as a single entity and, as a consequence, is in a position to make commitments that can be relied upon by the employer. To receive benefits in return for such commitments requires that the union consider the overall employee group in addition to the needs of individual employees.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-9", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "para 21", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "It is also essential that a union be able to direct its resources to achieve a maximum effect. In Judd and C.E.P., Local 2000 (2003), 91 CLRBR (2d) 33, the British Columbia Labour Relations Board expressed the following view, which this Board shares: 36. A union must also be able to direct its resources so that they achieve maximum effect. Union resources are limited. If, for example, an employee could insist that his or her dismissal grievance go to arbitration even where on a reasonable assessment there is no such case, this could waste tens of thousands of dollars of the union’s resources, which come from employees’ dues. 37. Through the control of its resources, a union can leverage them to achieve maximum results for minimum expenditure. An employer knows that the union could take any given case to arbitration if it wished. It also knows that the union is likely to accept a reasonable settlement if one is offered. With that type of relationship, the employer may be motivated to make reasonable offers to settle some matters by agreement, without litigating every issue. In that way, employees achieve the greatest gain with the least expenditure. By contrast, if individual employees could take every grievance to arbitration whenever they wished, the amount of litigation in the workplace would multiply and employees would very quickly find their collective resources depleted. This type of situation would be detrimental to the workplace and, for employees and the union, unaffordable. It may also place an excessive demand on the employer, affecting the business as a whole. 38. As well, a union must be in charge of making decisions given the reality that what is good for one employee in the bargaining unit may be bad for others.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-10", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "para 21", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "An obvious example is where there is a job vacancy and the collective agreement language is unclear. On one interpretation, one member of the bargaining unit should get the job; on another interpretation, a different member of the bargaining unit should get it. The union cannot represent both members by arguing both interpretations. It must be free to argue the interpretation it feels is in the best interests of the bargaining unit as a whole. 39. For these reasons, among others, unions must act as a single entity in order to represent the employees effectively. They must be able to make decisions even where individual employees in the bargaining unit may disagree. In fact, unions are able to exercise collective power because employees cannot simply do whatever they wish individually. It is that characteristic which gives unions their bargaining power on behalf of the employees. 40. Employees choose whether or not to unionize, and typically choose the leadership of their union local. Thus, unions are an exercise in workplace democracy. Like all democracies, they are not expected to be perfect, nor to be free from disagreement. In fact, when one considers the type of decisions unions must routinely make - e.g., whether to expend union resources on a particular employee’s grievance, or which position to take when some employees’ interests differ from others - it is inevitable that some employees will disagree. Employees as a group may nonetheless decide to continue with their union and its current leadership. If they do, it is not because the employees believe the union has been perfect or right in all cases. It is because they believe it is, overall, the best option available. (pages 43-45)", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-11", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 22–23", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In making a decision of whether or not to proceed with a grievance or refer a grievance to arbitration, the union is in fact doing its job of representing employees. It is called upon to assess the workplace conditions that gave rise to an alleged breach of the collective agreement, the interpretation to be given to the collective agreement based on its experience with the employer, as well as the effect of a successful outcome of the grievance on other employees in the bargaining unit. To the extent that this assessment is based on relevant workplace considerations, the union is free to decide the best course of action in a particular set of circumstances.\n\nThe duty of fair representation commences as soon as there is a possibility discipline may be imposed and extends to the conduct of the grievance process to its final conclusion (see Anne Marie St. Jean, [1999] CIRB no. 33; and Brian L. Eamor (1996), 101 di 76; 39 CLRBR (2d) 14; and 96 CLLC 220-039 (CLRB no. 1162), upheld by C.A.L.P.A. v. Eamor (1997), 39 CLRBR (2d) 52). The duty is identical whether a bargaining agent is voluntarily recognized or certified. However, it does not normally extend to a situation where there is no collective agreement (see Gerald M. Massicotte (1980), 40 di 11; [1980] 1 Can LRBR 427; and 80 CLLC 16,014 (CLRB no. 234), upheld by Teamsters Union Local 938 v. Massicotte, [1982] 1 F.C. 216, appeal dismissed by Pollock v. R., [1982] 1 F.C. 710).", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-12", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 24–27", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Generally speaking, the duty of fair representation is owed only to members of the bargaining unit, although it may extend in certain circumstanes to former bargaining unit members (see Serge Bouchard et al., [2003] CIRB no. 259; and Tremblay v. Syndicat des employées et employés professionnels-les et de bureau, section locale 57, [2002] 2 S.C.R. 627). If an employee is not included in the bargaining unit, the union cannot be faulted for not taking the necessary steps to include the employee in the bargaining unit (see Esper Powell, [2000] CIRB no. 97).\n\nThe resolution of a grievance between the union and the employer, whether in the form of a settlement or incorporated in a consent award is subject to the Board’s ability to review the union’s conduct during the course of reaching that resolution (see Anne Marie St. Jean, supra).\n\nThere is no exhaustive list of items that a union must consider in deciding whether or not to take a grievance to arbitration. However, a few general principles apply.\n\nA union must not act in bad faith; that is, with improper purpose. Three examples of this conduct include: the personal feelings of union officers influencing whether or not a grievance should be pursued; conspiring with the employer to have an employee disciplined or terminated; or, putting the ambitions of a group of employees who support a union official ahead of the interests of an individual employee.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-13", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 28–29", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "A union must not discriminate on the basis of age, race, religion, sex or medical condition. Each member must receive individual treatment and only relevant and lawful matters must influence whether or not a grievance is referred to arbitration. It should be noted that not every instance of differential treatment is considered discrimination. For example, to refer one employee’s grievance to arbitration and not another where there are relevant considerations to support the distinction is not discriminatory. Nor is an agreement with the employer to give different or better working conditions to a group of employees because of workplace considerations (see Mario Soulière et al., [2002] CIRB no. 205; and 94 CLRBR (2d) 307).\n\nA union must not act arbitrarily. Arbitrariness refers to actions of the union that have no objective or reasonable explanation, that put blind trust in the employer’s arguments or that fail to determine whether the issues raised by its members have a factual or legal basis (see John Presseault, supra, but see Orna Monica Sheobaran, [1999] CIRB no. 10, that upheld a complaint where the union referred an employee to the employer rather than assist the employee; and Clive Winston Henderson, supra, where the union’s decision jeopardized an employee’s seniority).", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-14", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 30–31", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "It is arbitrary to only superficially consider the facts or merits of a case. It is arbitrary to decide without concern for the employee’s legitimate interests. It is arbitrary not to investigate and discover the circumstances surrounding the grievance. Failure to make a reasonable assessment of the case may amount to arbitrary conduct by the union (see Nicholas Mikedis (1995), 98 di 72 (CLRB no. 1126), appeal to F.C.A. dismissed in Seafarers’ International Union of Canada v. Nicholas Mikedis et al., judgment rendered from the bench, no. A-461-95, January 11, 1996 (F.C.A.)). A non-caring attitude towards the employee’s interests may be considered arbitrary conduct (see Vergel Bugay et al., supra) as may be gross negligence and reckless disregard for the employee’s interests (see William Campbell, [1999] CIRB no. 8).\n\nThe union’s duty in this regard is open to greater scrutiny when a matter involves an employee’s termination, serious discipline that affects gainful employment or a disability that requires accommodation. On the other hand, not every grievance warrants an investigation. In some circumstances, the union may already be in possession of the relevant information. Where the evidence before the union is that a grievance is unlikely to succeed, it may be unreasonable in certain circumstances to expect the union to investigate new evidence brought forth by the employee (see International Longshore and Warehouse Union, Ship and Dock Foremen, Local 514 v. Empire International Stevedores Ltd., [2000] F.C.J. No. 1929 (QL) reversing Board’s decisions William Bill Harris, April 3, 2000 (CIRB LD 209); and William (Bill) Harris, [1999] CIRB no. 43; and 57 CLRBR (2d) 216, application for leave to appeal to the S.C.C. dismissed).", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-15", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 32–33", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Union officials can make honest mistakes. Evidence that the union has acted negligently in the handling of a grievance or complaint does not necessarily amount to arbitrary conduct. A union may wrongly assess a grievance, yet not act arbitrarily. For example, a delay by the union in referring a dismissal grievance to arbitration may not be unusual where there is a backlog of grievances (see Ghislaine Gagné, supra). Not obtaining full redress sought by a complainant does not make a union’s conduct arbitrary, discriminatory or in bad faith (see Yvonne Misiura, supra).\n\nA union can fulfill its duty to fairly represent an employee by taking a reasonable view of the grievance, considering all of the facts surrounding the grievance, investigating it, weighing the conflicting interest of the union and the employee and then making a thoughtful judgment about whether or not to pursue the grievance. That is called balancing the circumstances of the case against the decision to be made. For example, it is legitimate for the union to consider collective agreement language, industry or workplace practices, or how similar issues have been decided. It is also legitimate for the union to consider the credibility of a grievor, the existence of potential witnesses in support of the grievor’s version of the events, whether the discipline is reasonable, as well as the decisions of arbitrators in similar circumstances.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-16", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 34–36", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "A union can consider legitimate factors other than the employee’s interests. For example, the union and the employer may have agreed to a particular interpretation of the collective agreement during the course of collective bargaining or the union may have been unsuccessful at arbitration in a similar case. The union may be concerned that a victory would have an adverse effect on other employees of the unit. The union may decide that the cost of resolving the grievance is too high given the issue at hand. The union must weigh these factors fairly against the wishes of the employee.\n\nConflicts may arise between the interest of an employee and the bargaining unit. For example, unions and employers may settle an ongoing grievance in exchange for bargaining concessions. In some circumstances, however, these actions may amount to unfair conduct if the grievance concerns serious discipline or dismissal (see Centre hospitalier Régina Ltée v. Labour Court, [1990] 1 S.C.R. 1330; and also Herman Durette, November 20, 2003 (CIRB LD 957)).\n\nThe rights that an employee wishes enforced may at times conflict with the rights of other bargaining unit members. This may occur in cases involving seniority rights on promotion or lay-off. This also happens in cases involving a reinstatement that triggers the displacement of another employee. In deciding whether or not to refer a particular grievance to arbitration, the union must act fairly. As long as it has properly considered the interests of both sides, the union need not represent each affected employee.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-17", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 37–39", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Accordingly, the Board will normally find that the union has fulfilled its duty of fair representation responsibility if: a) it investigated the grievance, obtained full details of the case, including the employee’s side of the story; b) it put its mind to the merits of the claim; c) it made a reasoned judgment about the outcome of the grievance; and d) it advised the employee of the reasons for its decision not to pursue the grievance or refer it to arbitration.\n\nEstablished unions usually have their own experienced staff to conduct investigations, assess the grievance and decide whether or not to pursue a grievance. Although the union may decide to obtain the advice of legal counsel, there is no requirement for the union to obtain a legal opinion before deciding not to refer a grievance to arbitration. The Board will not uphold a complaint based on the mere fact that the union did not obtain legal advice before deciding not to refer a grievance to arbitration, or that the union did not follow counsel’s advice.\n\nThe general rule is that the union should advise employees of any upcoming hearing, or tell them why they should not or cannot attend (see Robert Adams, supra). Some unions proceed before the arbitrator on the basis of written submissions or according to an expedited procedure that excludes employee participation. Employees may have their own representative, but this is subject to the decision of the arbitrator. The union need not provide a representative for the employee, nor is it required to pay for any representative an employee chooses for himself.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-18", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 40–42", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The union has carriage of the grievance and does not need to consult with the employee at every stage of the grievance procedure, although it may be advisable to communicate with the employee if a grievance or arbitration hearing is delayed, in order to avoid a complaint under section 37 (see Ghislaine Gagné, supra). Lack of communication per se does not constitute a violation of the Code, except where it prejudices the complainant (see Crewdson (1992), 93 CLLC 16,014 (CLRB decision no. 977) (decision subsequently rescinded following parties’ agreement); William Campbell, supra; and Robert Adams, supra).\n\nThe collective agreement is not the only factor governing a union’s relationship with the employees it represents. Employees may have rights flowing from the union’s constitution, statutes or rules, from other statutes or employment-related statutes, such as Parts II and III of the Code that are subject to the duty of fair representation under the Code (see Richard Connolly et al. (1998), 107 di 120; and 45 CLRBR (2d) 161 (CLRB no. 1235), pages 143; and 185). The Board has also found that where no collective agreement exists, there cannot be a breach of section 37 (see Eugene Kalwa (1995), 96 di 157 (CLRB no. 1106) at page 160; and Adonica Huggins and Donna Green, November 11, 2000 (CIRB LD 357)).\n\nA case in point are the rules relating to hiring halls in the longshoring industry. Unless the rules are part of the collective agreement, the duty of fair representation does not apply to a breach of these rules. However, it should be noted that section 68 of the Code provides that a collective agreement may require as a condition of employment that an employee be a member of a specified trade union, and that members of a specified union have preference of employment.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-19", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 43–46", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Another example are complaints relating to union discipline and the fair application of union rules. Unfair labour practice complaints against a trade union for such violations are filed under sections 95(f) to (i) and not under section 37 of the Code.\n\nProvincial workers’ compensation acts give employees rights, but these rights are usually not part of the collective agreement. Most unions will assist employees with workers’ compensation claims. However, they are not obligated to do so and the union’s actions in this regard are not subject to review by the Board, unless the collective agreement provides otherwise (see Yves Dumontier, [2002] CIRB no. 165; and 92 CLRBR (2d) 94, application for reconsideration dismissed in Yves Dumontier, July 25, 2002 (CIRB LD 692)).\n\nA union is not required to pursue issues not covered by a collective agreement (treatment related to substance abuse, in Judah (Joe) Zegman (1996), 100 di 25 (CLRB no. 1151), or the judicial review of an arbitral award (see John Presseault, supra). Unions are not required to pay for a lawyer to represent employees facing criminal charges, employment-related lawsuits, professional discipline proceedings or fatality inquiries.\n\nInternal union disputes, such as the right to attend union meetings, are not covered by the duty of fair representation under section 37 (Yves Dumontier, supra).", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-20", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 47–48", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The employer is not a principal party to a section 37 proceeding. Its actions are not at issue and it has no case to defend. As a matter of practice, it is added as an affected party since its interests could be affected by the outcome of the complaint, that is, the remedy imposed by the Board if the complainant is successful. For this reason, the Board provides the employer with the opportunity of presenting its submissions on the question of remedy. The employer’s role with respect to the merits of the complaint is restricted to that of an observer.\n\nThe union has a mandate to negotiate on behalf of employees in the bargaining unit. It is entitled to decide on demands and on bargaining strategies to advance the interests of the bargaining unit. It may disregard the wishes of individuals or minority groups, trade off demands, including individual grievances, or agree to terms and conditions that adversely affect individuals or groups of employees. The union, however, must engage in a rational decision-making process and recognize and consider the competing interests of all the employees in the bargaining unit. (For examples, see Vergel Bugay et al, supra; and Mario Soulière et al., supra, where the Board dismissed the complaints; and George Cairns et al., [1999] CIRB no. 35; and 2000 CLLC 220-012, where the Board upheld the complaint.)", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-21", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 49–50", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board is an independent and adjudicative body whose role is to determine whether there have been violations of the Code. Although the Code gives the Board broad powers in relation to any matters before it, it is not an investigative body. Accordingly, it is not mandated to go on a fact-finding mission on behalf of the complainant, to entertain complaints of poor service by the union, to investigate the union’s leadership or to investigate complaints against the employer for alleged wrongs suffered in the workplace. Employees who allege that their union has violated the Code and wish to obtain a remedy for that violation must present cogent and persuasive grounds to sustain a complaint.\n\nA complaint is not merely a perceived injustice; it must set out the facts upon which the employee relies in proving his or her case to the Board. A complaint goes beyond merely alleging that the union has acted “in a manner that is arbitrary, discriminatory or in bad faith.” The written complaint must allege serious facts, including a chronology of the events, times, dates and any witnesses. Copies of any documents that are relevant, including letters from the union justifying its actions or decision, should be used to support the allegations.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-22", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 51–52", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "An important consideration is that all complaints must be filed no later than 90 days from the date on which the complainant knows or ought to have known of the incident leading to the complaint (section 97(2) of the Code). Furthermore, filing in the wrong venue will not suspend the delay (see Winfield Porter, [2002] CIRB no. 176; and 81 CLRBR (2d) 48). The reasons for having statutory delays within which to file complaints is to give some finality to disputes, since it is important in industrial relations to get on with the bargaining relationship by resolving matters rather than let them fester over a prolonged period of time (see Anil Kumar Luthra, August 10, 2000 (CIRB LD 273); Captain Brian Woodley et al., [2000] CIRB no. 85; and 69 CLRBR (2d) 161; and Marie Laperrière, March 13, 2003 (CIRB LD 821)).\n\nIf a complaint is filed outside the 90-day period, the complainant must provide compelling reasons as to why his or her application should be considered nonetheless. The Board assesses the reasonableness of the delay in filing a complaint on a case-by-case basis. (Note: Time frames for filing a complaint against a union with respect to discriminatory treatment and discipline of members under section 95(f) or (g) are subject to a different time bar pursuant to section 97(4) and (5) than the 90-day period referred to above under section 97(2) of the Code.)", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-23", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 53–55", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Most instances of a complaint being dismissed relate to the fact that the complainant was unable to establish the facts upon which the Board could make a decision. This is often because complainants do not fully understand the Board’s role and treat it as an appeal of last resort from the union’s decision not to pursue their grievance or refer it to arbitration. Conversely, successful complainants allege detailed facts and the reasons why an employee reasonably believes that a decision was made based on improper factors or motives. The requested remedy is also a good indication as to whether a complainant understands the complaint process under section 37 of the Code.\n\nUltimately, if the union has directed its mind to the employee’s complaint, gathered the information relevant to making a decision, attempted to resolve the situation and reasonably exercised its discretion not to pursue a grievance or refer it to arbitration according to the criteria stated earlier, and informed the employee of its reasons for doing so, an employee will have little cause for complaint.\n\nSince the Code was amended in 1999, the Board has the unfettered discretion to decide a section 37 complaint without a public hearing. The scheme of section 16.1 of the Code and section 10(g) of the Canada Industrial Relations Board Regulations, 2001 (the Regulations) foresees that the Board may decide a complaint on the basis of the material filed, unless it considers that it has insufficient information before it to determine the matter and that the parties should be given the opportunity to advance their respective positions by way of an oral hearing. One or the other of the parties may request an oral hearing; however, the Board is not compelled to grant this request.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-24", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "para 56", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "There is no requirement for the Board to give notice to the parties of its intention not to hold a hearing (see Nav Canada, April 5, 2000 (CIRB LD 213), affirmed in NAV Canada v. International Brotherhood of Electrical Workers, Local 2228 (2001), 267 N.R. 125 (F.C.A.); and Raymond et al. v. Syndicat des travailleurs et travailleuses des postes (2004), 318 N.R. 319 (F.C.A.)). The audi alteram partem rule, that is the requirement to hear both sides of a matter, does not require that an oral hearing be held in every case. The reviewing courts have clearly stated that the Board is only required to grant to the parties an opportunity to present their case, whether by written submissions, documents produced and its own inquiries (see Commission des Relations de Travail du Québec v. Canadian Ingersoll-Rand Company Limited et al., [1968] S.C.R. 695; Anne Marie St. Jean, supra; Boulos v. Canada (Labour Relations Board), [1994] F.C.J. No. 1854 (QL); and Nav Canada, supra, with respect to the discretion of this Board).", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-25", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "para 57", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The principles that apply to the Board’s review of section 37 complaints are not new. The following quotation from Stephen Jenkins et al., June 9, 2004 (CIRB LD 1102) aptly summarizes the Board’s role in deciding such complaints and how its scope is often misunderstood by complainants: The Board recognizes that the complainants will likely be bitterly disappointed with this decision. As a creature of statute, created by and charged with enforcing the Code, the Board’s power of review and remedy is limited. In this case, apart from attempting to provide the complainants with a clear and comprehensive consideration of their case, the Board is unable to intervene. The following passage from Michael Tremblay (1989), 76 di 201, (CLRB no. 728) is an appropriate and instructive statement to offer the complainants. Vice-Chair Eberlee described the limits of the Board’s power under section 37 of the Code and attempted to demystify what are often confusing and painful results to disappointed and disgruntled complainants: “In a majority of the cases under section 37, complainants are not represented or assisted by legal counsel. This was true in this case. They often do not fully appreciate what the Board can and cannot do for them, if anything, under the law. Where the issue is a dispute between an individual and the union representing him over the union’s decision to drop or not to pursue a grievance, the complainant frequently expects that the Board will be able to make a decision on the actual merits of the grievance - to decide whether the suspension, or whatever took place, is appropriate and, if not appropriate, to modify or nullify it.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-26", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "para 57", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board is therefore careful at the beginning of a hearing in such circumstances to remind the parties that its mandate is only to judge the union’s handling of the grievance - to determine whether such handling shows evidence of having been ‘arbitrary, discriminatory or in bad faith’ - and not to decide the merits of the grievance. Thus it will focus primarily on the evidence showing how the union behaved. This was done before Mr. Tremblay and the union made their presentations in this case. ... ... The Board attempts to discourage the presentation of evidence pro and con the merits of the grievance but this is invariably smuggled into the testimony outlining the background of the complaint. It must be understood, however, that despite listening to such testimony, and perhaps even reporting it in reasons for decision when it helps to clarify the background, the Board in this case (and in its predecessors so far as we can tell) is not basing its determination on its reaction to the merits or otherwise of the grievance. We are not an arbitration board. The results in cases involving allegations of violations of section 37 may well confuse observers who are not fully aware of the real purpose of section 37. In one case, for example, it may appear to be obvious to a reader of reasons for decision that the reported background facts show the grievance itself to have little or no merit, yet the Board has concluded that the union violated section 37 in dropping it. Or in another case, the reported background facts may be overwhelming in showing that the employer was wrong in doing to the employee what gave rise to the grievance, yet the Board has concluded that the union did not breach section 37 in dropping it. ...", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-27", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 57–60", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In the second [case], despite what it or others may think of the merits of a grievance, the Board in adjudicating on section 37 complaints can only challenge and change a union’s decision if it concludes that the process giving rise to the decision or the decision itself was arbitrary, discriminatory or in bad faith. Put another way, the union may make a wrong decision and not be in breach of section 37. ...” (pages 38-39)\n\nIn light of these principles, two cases referred to the undersigned for decision will now be examined. Appearances Ms. Virginia McRaeJackson and Ms. Jacoline Shepard representing themselves; Ms. Sue Szczawinska, on behalf of National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada); Mr. Colin Copp, on behalf of Air Canada Jazz (Air Canada Regional Inc.).\n\nHaving reviewed the parties’ submissions and the investigating officer’s report, the Board is satisfied that in accordance with section 16.1 of the Code the present matter may be decided without holding a hearing.\n\nMs. Virginia McRaeJackson and Ms. Jacoline Shepard (the complainants) filed complaints on May 26, 2003, alleging that the National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 2002 (CAW-Canada or the union) breached the provisions of section 37 of the Code by refusing to process their grievances.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-28", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 61–64", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The complainants worked in security positions at the Prince Rupert Airport, which at the time they were hired, were governed by a collective agreement between Air Canada Regional airlines (ACR) and the CAW-Canada. A new collective agreement between CAW-Canada and JAZZ Air Inc. was signed and ratified in July 2002. The new collective agreement did not renew a Letter of Understanding that existed in the former collective agreement that provided for bumping rights between classifications and divisions.\n\nThe complainants were laid off in February 2003 and, as a consequence, claimed bumping rights into Customer Service Agents (CSA) positions. This claim was denied by the employer in light of the provisions of the new collective agreement that does not provide for bumping rights between divisions. The complainants approached the union to complain about the denial of their claim to bumping rights but were told that under the new collective agreement, there was no basis for a grievance.\n\nThe complainants’ complaint before the Board is based on rights contained in the Letter of Understanding that existed in the ACR-CAW-Canada collective agreement and alleges that the union has discriminated against them. This is not the first complaint filed by these complainants, however, the facts of those complaints are not relevant to this one.\n\nRelying on the earlier analysis of the law, there is no basis for a finding of discrimination. Discrimination relates to unlawful considerations in the union’s decision not to file a grievance, which is not the case here.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-29", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 65–68", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The union assumes, on behalf of all employees of the bargaining unit, the responsibility for collective bargaining and the content of the collective agreement. As stated earlier, it is not because the union takes a position that may be disfavourable to a group of employees that its conduct must be found to be discriminatory. Rights based on a previous collective agreement are unenforceable and a grievance based on these rights is doomed at the outset. It is easily foreseeable that an arbitrator’s ruling would be unfavorable to the complainants. Therefore, the union’s decision to refuse to file grievances was reasonable under the circumstances. The Board sees no reason to interfere with the union’s decision in this case.\n\nThe complaint, therefore, is dismissed as being without merit. Appearances Mr. Edwin F. Snow, representing himself; Mr. Gary Waxman, on behalf of the Seafarers’ International Union of Canada; Mr. Augustus G. Lilly, Q.C., on behalf of Seabase Limited.\n\nHaving reviewed the parties’ submissions and the investigating officer’s report, the Board is satisfied that in accordance with section 16.1 of the Code the present matter may be decided without holding a hearing.\n\nMr. Edwin Snow filed a complaint on December 24, 2003, alleging that the Seafarers’ International Union of Canada (SIU or the union) breached the provisions of section 37 of the Code. The complaint does not indicate what conduct by the union or its officials is in violation of the Code, but rather consists of an extensive filing of documents concerning Mr. Snow’s history of employment and settlement documents.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-30", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 69–70", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Mr. Snow is a general purpose crew member employed by Seabase Limited, a crewing agent for A.P. Moller-Maersk A/S, since 1998. On September 4, 2003, Mr. Snow was laid off in accordance with the seniority provisions of the collective agreement and subsequently recalled for another assignment on September 9, 2003. He notified the SIU on the day of recall that he felt that the terms of a Memorandum of Settlement, dated December 19, 2002, had been breached by the employer and therefore asked the union to “immediately provide [him] with qualified legal advice.”\n\nIn response to this letter, the SIU filed a grievance on his behalf in order to protect the time limits for filing a grievance while it investigated the matter. The employer denied the grievance. The union then wrote to Mr. Snow on September 19, 2003 asking him to provide evidence of the violation. On October 6, 2003, the union wrote to Mr. Snow telling him that since he had not responded, the union was closing its file. Mr. Snow did not respond until October 10, 2003, whereby he requested once more that the union provide him with qualified legal representation. The union wrote back that the employer was not in breach of the provisions of the collective agreement and that it was withdrawing the grievance. Mr. Snow thereafter filed this complaint on December 24, 2003.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-31", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 71–74", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "As a matter of background, Mr. Snow was terminated in September 2002 and subsequently reinstated as the result of the settlement of his grievance. In his various replies to his complaint, the Board understands that Mr. Snow alleges that the employer violated the seniority provisions of the Memorandum of Settlement when it laid him off and recalled him in September 2003. Mr. Snow asks as his only remedy that the union be ordered to provide him with qualified legal representation concerning “this matter.”\n\nThe union submits that Mr. Snow was reinstated to a full-time position in accordance with his seniority in January 2003 and the Memorandum of Settlement, the terms of which were reached in agreement with Mr. Snow. Thereafter, his employment continued to be governed by the terms of the collective agreement. Annually revised seniority lists were available at the union’s offices and posted on the employer’s vessels.\n\nThe union states that the documents filed in support of the complaint demonstrate that the SIU in fact properly considered all aspects of Mr. Snow’s case before arriving at its conclusions that the grievance had no merit. The union argues that there is no evidence of any arbitrary, discriminatory or bad faith conduct on its part and asks that the complaint be dismissed.\n\nThe employer filed submissions about the history of this complaint, which were helpful in deciphering the substance of the complaint, but that need not be considered for the Board’s ruling.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5478-32", - "doc_type": "caselaw", - "act_code": "2004 CIRB 290", - "act_short": "McRaeJackson", - "act_name": "McRaeJackson", - "section": "", - "citation": "McRaeJackson, 2004 CIRB 290", - "marginal_note": "paras 75–79", - "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In this case, the complainant has not established a prima facie case of union conduct that violates the Code. Rather, this case centers on the complainant’s perceived violation by the employer of his terms of reinstatement. This is not a proper subject matter of a breach of the duty of fair representation under section 37 of the Code. Not only did the complainant misunderstand the grounds for a section 37 complaint, but he also requested a remedy that does not flow from the alleged complaint.\n\nThe complainant agreed to the conditions of reinstatement negotiated by the union in January 2003. Any complaint about the inadequacy of these conditions at this time is clearly untimely. Any other failings by the union are not described or alleged. There are, therefore, no relevant facts upon which to consider this complaint of a violation of section 37 of the Code.\n\nAccordingly, this complaint is dismissed as being without merit.\n\nIn conclusion, the facts of each case determine whether or not the union’s conduct has fallen below the standard found acceptable to the Board. The union’s representation of employees involves rights under the collective agreement, and, as a consequence, considerable latitude is given to the union in determining how those rights are to be applied.\n\nAs these cases illustrate, to the extent that the union has investigated a grievance or potential grievance, put its mind to its merits in light of all the circumstances and made a reasoned judgement about its possible outcome, there will be no cause for the Board to intervene.", - "current_to": "2004-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" - }, - { - "id": "cirb-5491-1", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 1–5", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "This is an application filed under sections 24 and 32 of the Code by the Canada Council of Teamsters (the CCT) on November 10, 2003, seeking to be certified as the bargaining agent for a group of employees of Securicor Canada Limited (Securicor or the employer) described as follows: all employees of Securicor Canada Ltd. doing business as Securicor Cash Services in Canada, excluding office and sales staff, supervisors and those above.\n\nFor a better understanding of the relationship between the parties, it is important to provide an overview of all the bargaining certificates issued with respect to the employees covered by this application and of all the applications for certification that are presently before the Board regarding this employer.\n\nThere are presently 21 bargaining certificates issued by the Board for this employer. The bargaining agents of these 21 units represent groups of employees across Canada. They are as follows (see appendix at page 24).\n\nThe Board notes, based on the table from the investigating officer’s report, that of the 21 bargaining certificates issued by the Board, 13 are held by different local unions of Teamsters and one is held by the Western Canada Council of Teamsters.\n\nOn the date of filing of the present application for certification by the CCT (November 10, 2003) according to the documents on file, only five units were in the open period as prescribed by section 24(2) of the Code, that is, those covering the employees in Prince George and Terrace (6448-U), Nanaimo and Comox (8035-U), Saint John, Fredericton, Moncton, Bathurst and Charlottetown (6974-U), Vancouver (8121-U), Montréal (8081-U). All the other units were covered by collective agreements that expire much later, on dates ranging from May 31, 2004 to September 30, 2005.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-2", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 6–10", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board has before it three other applications under section 24 of the Code, filed by two unions seeking to represent different groups of Securicor employees. A summary of theses applications is provided below.\n\nThe Syndicat des travailleuses et travailleurs de Securicor - CSN filed an application for certification on November 20, 2003 to represent: all employees of Securicor Canada Ltd., operating as Securicor Cash Services, working in the Montréal Metropolitan region, excluding office staff, supervisors and those above the rank of supervisor. (translation) At the time of the application, these employees were represented by the Cartage and Miscellaneous Employees’ Union, Local 931.\n\nOn May 13, 2004, the Board, having found that the applicant union had filed its certification application within the open period stipulated in section 24(2)(c) of the Code, ordered that a representation vote be held to determine whether the employees covered by the application wanted to be represented by the Syndicat des travailleuses et travailleurs de Securicor - CSN or by the Cartage and Miscellaneous Employees’ Union, Local 931 (see Securicor Canada Ltd., operating as Securicor Cash Services, May 13, 2004 (CIRB LD 1081)).\n\nThe Board decided to keep the ballot boxes sealed until it ruled on the application for certification filed by the CCT, that is, the application that is the subject of this decision.\n\nThe National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) filed an application for certification on February 6, 2004 to represent: [a]ll employees of Securicor Canada Limited working at and from Prince George, [Quesnel and Terrace,] B.C., excluding office and sales staff, supervisors and those above the rank of supervisors.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-3", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 11–15", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "As was the case with the application in file no. 24064-C, the Board ordered that a vote be held pursuant to section 29(1) of the Code in order to determine whether the employees wanted to be represented by Teamsters Local Union No. 213 or by CAW-Canada (see Securicor Canada Limited, May 13, 2004 (CIRB LD 1083)). These ballot boxes, as well, are to be kept sealed until the Board rules on the present application.\n\nCAW-Canada filed, on February 13, 2004, an application for certification to represent: [a]ll employees of Securicor Canada Limited working at and from 301 - 4300 Wellington Road, Nanaimo, British Columbia and, at and from 821 Shamrock Place, Comox, British Columbia, [and at and from Powell River, British Columbia] excluding office and sales staff, supervisors and those above the rank of supervisors.\n\nIn Securicor Canada Limited, May 13, 2004 (CIRB LD 1082), as was the case with the applications in file nos. 24064-C and 24207-C, the Board ordered that a secret ballot vote be held to determine whether these employees wanted to be represented by Teamsters Local Union No. 213 or CAW-Canada. These ballot boxes are also being kept sealed until the Board rules on the present application.\n\nIt is also important to note that, on October 21, 2003, the Cartage and Miscellaneous Employees’ Union, Local 931, filed an application for certification to represent the employees of Securicor working in the Abitibi region, Quebec, and the Board, by order no. 8624-U, dated April 8, 2004, certified the applicant union as bargaining agent for the employees covered by that application.\n\nSome of the certified bargaining agents affected by the CCT’s application made submissions to the Board, arguing that it should dismiss the said application.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-4", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 16–19", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "This union represents 97 employees in New Brunswick and Prince Edward Island and opposes the CCT’s application. It submits that the CCT is trying to organize through the “backdoor.”\n\nThe Steelworkers filed a request to intervene. They currently represent employees of Securicor in Newfoundland and Labrador and are a party to a collective agreement in effect until July 31, 2004. They submit that their bargaining unit is a successful and viable unit, that the CCT’s application for certification is a raid on the Steelworkers bargaining rights and that it is made outside of the open period as prescribed by section 24(2)(c) of the Code. They also submit that this application interferes with the right of employees to be represented by the bargaining agent of their choice.\n\nThe ACEA also filed a request to intervene. It is certified to represent employees of Securicor in London, Cambridge and Windsor, Ontario, and is a party to a collective agreement in effect until September 30, 2005. It submits that the bargaining rights of the Teamsters, in relation to this unit, have already been terminated, since the employees did not feel that they were being adequately represented. The ACEA also submits that the CCT’s application is untimely, as it fails to respect the conditions set out in section 24(2)(d) of the Code, and should be dismissed.\n\nCAW-Canada is the certified bargaining agent for Securicor’s employees in Kingston, Ottawa and Region, Victoria and Vancouver. It did not file specific submissions in this matter.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-5", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 20–23", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The relevant local unions of Teamsters are the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, Helpers and Miscellaneous Workers, Local 927, the Western Canada Council of Teamsters (Locals 362 and 979), the Drivers and Miscellaneous Workers, Local 69 (Teamsters Quebec), Teamsters Local Union Nos. 213, 419, 879 and 938, and the Cartage and Miscellaneous Employees’ Union, Local 931. These local unions have granted the CCT the authority and power to represent their interests, as well as those of their members, as a certified bargaining agent pursuant to section 32 of the Code.\n\nSecuricor submits that the Board ought to dismiss the present application. It submits that it has serious reservations regarding the status of the CCT. It contends that this application, to have the current bargaining unit structure reviewed, is not supported by the evidence.\n\nThe CCT alleges that its application is timely since it complies with section 24(2)(a) of the Code. It argues that no collective agreement is presently in force for the national unit that is the subject of this certification application, and that no trade union has been certified for the said unit.\n\nThe CCT submits that it did not file an application for the consolidation of existing bargaining units pursuant to section 18.1 of the Code, but rather it filed an application, pursuant to sections 24 and 32 of the Code, to be certified for a new, nation-wide, bargaining unit. The CCT also submits that it could not have applied for a review of the existing bargaining units under section 18.1 of the Code since it does not presently act as a bargaining agent for any of those units. Therefore, it alleges that it does not have the burden of satisfying the Board that the existing bargaining units are no longer appropriate.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-6", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 24–27", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The CCT submits that, in this application for certification, the Board simply has to satisfy itself that the bargaining unit applied for is appropriate and meets the purpose of the Code, which is to promote effective and sound labour-management relations. It submits that the bargaining unit applied for is appropriate, considering the structure and nature of the operations carried on by the employer.\n\nThe CCT also alleges that it is a council of trade unions, pursuant to section 32 of the Code, and enjoys the support of a majority of the employees in the proposed bargaining unit.\n\nThe Syndicat des travailleuses et travailleurs de Sécuricor - CSN filed a request to intervene with the Board. The Board granted the request since this union was involved in the vote ordered by the Board in Securicor Canada Ltd., operating as Securicor Cash Services, supra, for the employees of Securicor working in the Montréal region.\n\nThe CSN submits that the Canada-wide bargaining unit sought by the CCT is not appropriate because it does not meet the criteria set out in the Code. The CSN is of the view that the CCT’s application covers a group of employees who have already decided to change bargaining agents.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-7", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 28", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The relevant provisions in this matter read as follows: 24.(1) A trade union seeking to be certified as the bargaining agent for a unit that the trade union considers constitutes a unit appropriate for collective bargaining may, subject to this section and any regulations made by the Board under paragraph 15(e), apply to the Board for certification as the bargaining agent for the unit. (2) Subject to subsection (3), an application by a trade union for certification as the bargaining agent for a unit may be made (a) where no collective agreement applicable to the unit is in force and no trade union has been certified under this Part as the bargaining agent for the unit, at any time; (b) where no collective agreement applicable to the unit is in force but a trade union has been certified under this Part as the bargaining agent for the unit, after the expiration of twelve months from the date of that certification or, with the consent of the Board, at any earlier time; (c) where a collective agreement applicable to the unit is in force and is for a term of not more than three years, only after the commencement of the last three months of its operation; and (d) where a collective agreement applicable to the unit is in force and is for a term of more than three years, only after the commencement of the thirty-fourth month of its operation and before the commencement of the thirty-seventh month of its operation and, thereafter, only (i) during the three month period immediately preceding the end of each year that the collective agreement continues to operate after the third year of its operation, and (ii) after the commencement of the last three months of its operation. ...", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-8", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 28", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "27.(1) Where a trade union applies under section 24 for certification as the bargaining agent for a unit that the trade union considers appropriate for collective bargaining, the Board shall determine the unit that, in the opinion of the Board, is appropriate for collective bargaining. ... 28.Where the Board (a) has received from a trade union an application for certification as the bargaining agent for a unit, (b) has determined the unit that constitutes a unit appropriate for collective bargaining, and (c) is satisfied that, as of the date of the filing of the application or of such other date as the Board considers appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent, the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargaining unit. ... 29.(2) Where a trade union applies for certification as the bargaining agent for a unit in respect of which no other trade union is the bargaining agent, and the Board is satisfied that not less than thirty-five per cent and not more than fifty per cent of the employees in the unit are members of the trade union, the Board shall order that a representation vote be taken among the employees in the unit. ... 32.(1) Where two or more trade unions have formed a council of trade unions, the council so formed may apply to the Board for certification as the bargaining agent for a unit in the same manner as a trade union. (2) The Board may certify a council of trade unions as the bargaining agent for a bargaining unit where the Board is satisfied that the requirements for certification prescribed by or pursuant to this Part have been met.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-9", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 28–30", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "(3) Membership in any trade union that forms part of a council of trade unions is deemed to be membership in the council of trade unions. (4) Where a council of trade unions is certified by the Board as the bargaining agent for a bargaining unit, (a) the council of trade unions and each trade union forming the council of trade unions is bound by any collective agreement entered into by the council of trade unions and the employer concerned; and (b) this Part applies, except as otherwise provided, as if the council of trade unions were a trade union.\n\nThe Board must first consider the issue regarding the CCT’s status. Does the CCT have status to file an application for certification to represent all Securicor employees in Canada? An applicant council of trade unions seeking to be certified must meet the conditions set forth in section 28 of the Code. As well, in cases regarding an application for certification by a council of trade unions, section 32(2) of the Code provides that the Board may certify the council if it is satisfied that the requirements for certification set out in Part I of the Code have been met. Accordingly, even if these requirements have been met, the Board still has a discretion to exercise when determining whether or not to issue the requested certification order.\n\nIn MacCosham Van Lines Ltd. (1984), 56 di 192; 7 CLRBR (NS) 216; and 84 CLLC 16,051 (CLRB no. 474), the Board stated that a council of trade unions consists of two or more trade unions that have banded together in order to become a single bargaining agent.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-10", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 31–33", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In Canadian Pacific Express and Transport (1988), 73 di 183 (CLRB no. 682), the Board stated that, in order to obtain the status of a council of trade unions, the council must meet all the minimum requirements imposed upon a normal trade union. The Board also stated that the council must have two or more unions as its members. Its members must satisfy the test under the Code for trade union status. The Council must obtain appropriate authorization from each member union to act on their behalf as a bargaining agent.\n\nIn Purolator Courier Ltd. (1993), 91 di 149 (CLRB no. 1003) (upheld by the Federal Court of Appeal in Syndicat canadien des communications, de l’énergie et du papier et al. v. Conseil canadien des relations du travail et al. (1994), 174 N.R. 57), the Board mentioned that it does not require a council of trade unions that appears before it frequently to continually establish its status. The Board specified, however, that a council of trade unions must establish, whenever it applies to be certified for a bargaining unit, that it has the necessary authority under its constitution to represent the employees covered by the application and that its member unions, whose membership in the council will serve to establish its representative character, also have the necessary authority.\n\nConsequently, on the basis of the jurisprudence cited above, the Board considers, according to the documents on file, that the CCT has demonstrated its status as a council of trade unions and has showed that its member unions are indeed trade unions within the meaning of the Code. The various local union members of the CCT have also authorized the CCT to act on their behalf as a bargaining agent.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-11", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 34–37", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The CCT alleges that the proposed national bargaining unit, that it seeks to be certified to represent, is a new bargaining unit and that no trade union has been certified for the said national unit. The CCT adds that this is an application that falls under sections 24 and 32 of the Code, rather than an application under section 18.1 of the Code.\n\nThe CCT submits that it could not have applied for a review of the structure of the existing bargaining units, under section 18.1 of the Code, since it does not presently act as a bargaining agent for any of the existing bargaining units, although certain of its local unions do represent some of the existing units. Based on the certification orders issued by the Board for the units involved in this file, the Board concludes that the CCT is not certified as a bargaining agent for any of the existing bargaining units. Accordingly, its application is properly made under sections 24 and 32 of the Code.\n\nCertain incumbent unions challenge the CCT’s application and allege that it is made outside of the open period prescribed by section 24(2) of the Code.\n\nThe Board has recognized in the past that it is possible for a union to be certified for a new bargaining unit that overlaps existing bargaining units for which unions have already been certified and collective agreements are in force. The Board has concluded that such a certification would give effect to the Board’s policy of favouring regrouping and larger bargaining units.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-12", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 38", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In Canadian Broadcasting Corporation (1982), 44 di 19; and 1 CLRBR (NS) 129 (CLRB no. 383) (upheld by the Federal Court of Appeal in Claude Latrémouille v. Canada Labour Relations Board et al., file nos. A-445-82, A-467-82 and A-725-82, January 22, 1985), the Board stated that such applications were not subject to the open periods set out in the Code: UDA filed its application for certification on March 24, 1979 to cover “all moderators, interviewers and commentators of the French Radio and Television network...” At that time, UDA was a party to two collective agreements: one for television, covering a much larger number of employees than those performing the three functions listed, and running from April 1, 1977 to April 1, 1979; the other for radio, also covering a larger number of employees than those performing the three functions listed, and running from October 1, 1977 to October 1, 1979. In fact, UDA asked that a unit be formed to include employees covered in part by two different collective agreements extending over different periods. If the application had covered only television employees, it would have fallen within the time limits established in section 124(2)(c), and there would have been no discussion, since it would meet the conditions of the said section. However, an application covering radio employees only would have been inadmissible because it did not fall within the required time limits. Is the application covering employees included in the two units inadmissible because of its timing, or does it satisfy the provisions of section 124(2)(c) [now section 24(2)(c) of the Code]? ... ...", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-13", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 38", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The present application involves two small groups included in two existing units whose related collective agreements terminate on the different dates, and corresponds to the situation described in Utah Mines Ltd., supra, to which the British Columbia Board referred in White Spot Ltd., indicating that it would accept such an application. As we have said, we agree with this approach. The unit sought substantially overlaps two units, each of which is covered by a collective agreement. More important, it creates no difficulty with respect to the radio unit, since, as regards this unit, the application has been filed within the time limits prescribed by section 124(2)(c). In fact, UDA and SGCT have proceeded in the most appropriate and consistent manner possible for any union seeking to combine in a single unit two groups covered by collective agreements expiring on different dates and to give effect to the Board’s policy of favouring regroupings and ensuring the flexibility required to restructure the existing units. We conclude that their applications have been filed within the prescribed time limits. (pages 125 and 132; and 243 and 250; emphasis added)", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-14", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 39", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board also confirmed this approach in Maritime Employers’ Association and Terminaux Portuaires du Québec (1987), 65 di 162; and 19 CLRBR (NS) 34 (CLRB no. 642). In that matter, the Board concluded that the open periods set out in section 124 (now section 24) of the Code are “not intended to deal with applications for certification in which the unit sought is different or significantly larger than that for which a collective agreement is or could be in place”: The Board dismissed the objection, ruling that it could hear the application which was within the time limits prescribed by the Code for three reasons. Section 124 of the Code is not intended to deal with applications for certification in which the unit sought is different or significantly larger than that for which a collective agreement is or could be in place. This interpretation, which is compatible with the wording of the Code, is also in agreement with Board policy to encourage regroupings of bargaining units conducive to industrial peace (see Teleglobe Canada (1979), 32 di 270; [1979] 3 Can LRBR 86; and 80 CLLC 16,025 (partial report) (CLRB no. 198)). Prior to October 8, 1985, two barganing units had been declared appropriate by the Board: the longshoremen serving the longshoring companies operating in the port of Trois-Rivières and represented by Local 1846 and the longshoremen serving the port of Bécancour, also represented by Local 1846. In both cases, the Board had issued so-called geographic certifications. The instant application relates to a totally different unit covering all the longshoremen serving all the longshoring companies in both the ports of Bécancour and of Trois-Rivières. (pages 186-187; and 59-60; emphasis added)", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-15", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 40", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "More recently, this test has been set out in Ledcor Industries et al. (1998), 106 di 122; 41 CLRBR (2d) 145; and 99 CLLC 220-005 (CLRB no. 1225): Section 24(1) provides that a “trade union seeking to be certified as the bargaining agent for a unit that the trade union considers constitutes a unit appropriate for collective bargaining” may, subject to the time prescriptions, apply to the Board to be certified. The union is given broad berth, in a section 24 application, to define the unit it considers appropriate. If there is an existing certification or collective agreement “applicable to the unit” in force at the time of the unions’s application, which is substantially the same as the one that the union described in its application pursuant to section 24(1), the timeliness of the application must be determined pursuant to the provisions of section 24(2). Before applying the time limits under section 24(2), the Board is often called upon to decide whether the unit described by the union in its section 24(1) application is the same or substantially the same as the unit for which an existing certification order or collective agreement (voluntary or otherwise) exists. Ultimately, it is also the Board, by virtue of section 28, that must decide whether or not the unit that the union described in its section 24(1) application “constitutes a unit appropriate for collective bargaining.” Where application is made by a union to be certified as the bargaining agent for a unit that the Board determines to be distinct from the unit voluntarily recognized by the parties, the voluntary agreement cannot act as a bar to the application for that new unit.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-16", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 40–43", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Similar rules apply in this regard where certification applications refer to certified units that the Board considers substantially different from the units covered by the collective agreement in force on the date the application was filed (see Canadian Broadcasting Corporation (1982), 44 di 19; and 1 CLRBR (NS) 129 (CLRBR no. 383); Maritime Employers’ Association and Terminaux Portuaires du Québec (1987), 65 di 162; and 19 CLRBR (NS) 34 (CLRB no. 642); and Télébec Ltée, October 14, 1994 (LD 1362)). (pages 130-131; 154; and 143,044; emphasis added)\n\nAccording to these decisions, it is possible for a union to apply to be certified for a new bargaining unit that is substantially different from, and overlaps, existing bargaining units for which unions have already been certified and collective agreements are in force, without being subject to the open periods set out in section 24(2) of the Code.\n\nThe Board, based upon the facts of the file under review, concludes that the national unit proposed by the CCT (which includes 2,469 employees) is substantially different and distinct from the 21 existing bargaining units that presently cover employees of Securicor in numerous regions of the country. Consequently, the Board is of the view that the CCT’s application is properly described as being a new certification application that is not subject to the open period set out in section 24(2) of the Code. Accordingly, the CCT’s application is timely.\n\nThe Board, by virtue of section 28 of the Code, must decide whether the nation-wide unit, that the union described in its application, “constitutes a unit appropriate for collective bargaining.”", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-17", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 44", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In the instant matter, the Board does not have to determine the most appropriate unit nor is its mandate to review the structure of the existing bargaining units or to attempt to reconfigure them.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-18", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 45", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In TVA Group Inc., [2000] CIRB no. 67, the Board explained that some factors favour smaller units and summarized the principles that it considers when determining what constitutes an appropriate bargaining unit. Despite the fact that the application in that decision was filed pursuant to section 18.1 of the Code, the Board considers that the following comments apply to the case at hand: [81] The principles governing bargaining unit determination are well established and have been reiterated in countless decisions. Among the goals the Board attempts to achieve is to establish units that take into account both the employees’ and employer's interests such that a balance in that respect is achieved. More specifically, units should provide the employer to the greatest extent possible with the flexibility to manage its operations in a more effective and efficient manner while at the same time providing employees with the best means of protecting their rights under the Code, as well as the greatest amount of flexibility in furthering their careers. Ultimately, the Board seeks to establish units that are viable and that allow for effective collective bargaining and harmonious labour relations (see Canada Post Corporation, supra; Quebec North Shore & Labrador Railway Co. (1992), 90 di 110; and 93 CLLC 16,020 (CLRB no. 978); Canadian Museum of Civilization, supra; and Canadian Pacific Limited (1976), 13 di 13; [1976] 1 Can LRBR 361; and 76 CLLC 16,018 (CLRB no. 59)). ... [83] While the Board favours an all-employee unit or the creation and maintenance of larger bargaining units, the Board will nevertheless create less than all encompassing units or fragment an existing employee complement where there are compelling reasons to do so.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-19", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 45", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The factors that favour smaller units include a diverging community of interests, geographical factors, specific statutory provisions, the likelihood that a larger unit will not be viable, and an interest in enabling employees to obtain representation. (pages 23-24; emphasis added)", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-20", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 46", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In CFSK-TV, a Division of CanWest Television Inc., [2002] CIRB no. 199; and 87 CLRBR (2d) 85, confirmed by a reconsideration panel in CFSK-TV, a Division of CanWest Television Inc., [2003] CIRB no. 220, the Board explained that when the certification application is for a unit that is different from what currently exists, the labour relations history is a factor that will be considered as well: [45] When the unit applied for is exactly the same as a unit that is already represented, the determination of an appropriate unit is facilitated by the fact that the unit has already been found to be an appropriate unit by the Board. When the application is a raid for a unit that is different than what currently exists, the Board’s assessment of what constitutes an appropriate unit will, in almost every case, be influenced by the labour relations success of the existing unit; the labour relations history of the parties is one of the many factors that the Board will consider when determining whether a unit is appropriate. ... It would be contrary to the objectives of the Code for the Board to certify a union as the bargaining agent for a unit that is less appropriate for collective bargaining than the unit that already exists. While the Board could grant certification for a unit that is just as appropriate as the unit that is already in existence, it will almost always be the case that the unit created will be more appropriate for collective bargaining, as the Board generally seeks to improve labour relations. (pages 17-18; emphasis added)", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-21", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 47", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In Télébec Ltée (1995), 99 di 1 (CLRB no. 1133), decision upheld by a reconsideration panel in Télébec Ltée (1995), 99 di 141; and 96 CLLC 220-040 (CLRB no. 1148), the Board had to consider an application filed by a union that was seeking to represent, in a single bargaining unit, office employees from a number of bargaining units who had been represented for years by various bargaining agents. The Board mentioned that, in such a case, it should assess the appropriateness of a unit having regard to the fundamental objectives of the Code: ... the Board’s role is to provide, through the structure of bargaining units, an institutional framework within which bargaining can take place and which most accurately reflects the situation of the parties, having regard to the result sought. It stands to reason that this task differs somewhat, depending on whether one is starting from scratch or whether there are already existing units. The emphasis will be, in the first case, on access to the collective bargaining process, and in the latter case, on the proper functioning of the structure... In the present case, this distinction is also highlighted by the argument of certain parties that the Board’s role should be limited to defining appropriate units and not the most appropriate units. It is true that when the Board considers an application for certification, it does not have to determine the most appropriate unit. This does not mean, however, that all units are equally appropriate, particularly where access to unionization is not at issue, as is the case here. If this were the case, the Board’s exclusive jurisdiction to determine the appropriateness of units would have no real substance or effect.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-22", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 47–50", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "When dealing with one or more certification applications, the Board must assess the appropriateness of a unit, or a configuration of bargaining units, having regard to the fundamental objectives of the Code and the particular corporate structure into which this unit or these units must fit and develop. (page 12; emphasis added)\n\nApplying the foregoing jurisprudence to the case at hand, the Board finds that the national unit proposed by the CCT is not appropriate.\n\nWithout coming to the conclusion that the current bargaining unit structure comprising 21 bargaining units could not be reviewed, pursuant to a section 18.1 application, the Board finds that a unit covering all Securicor employees in Canada would not promote the establishment of sound and harmonious labour relations at the present time. In the instant matter, the Board examined the history of the labour relations between the parties and the fact that these relations have been established on a geographical basis. The community of interests of the employees involved is indeed strongly linked to the various geographical regions. In that respect, it should be noted that the employer opposes the CCT’s application and mentioned the fact that current independent bargaining units are working within existing collective agreements.\n\nThe Board has taken into consideration the fact that all of the current bargaining units have already been found to be appropriate at some point in time, that a successful relationship has already been established in respect of these units and that collective agreements were applicable to most of the units when the CCT’s application was filed.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-23", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 51–54", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board also considered the wishes of the employees and their right to be represented by the bargaining agent of their choice in such applications. A confidential petition was sent to the Board in that respect.\n\nMoreover, from a geographical point of view, it is not clear that the proposed structure is in the best interests of the employees scattered throughout the country. It should also be kept in mind that the Board has before it three applications for certification filed during the open period, in respect of bargaining units presently represented by Teamsters local unions and that in each application the Board has ordered that a vote be held. This is particularly the case for the Montréal region, which has close to 400 employees in the bargaining unit presently represented by the Teamsters local union. Without drawing any conclusions, given that the ballot boxes are being kept sealed, these applications indicate that a certain number of employees wish to change bargaining agents.\n\nFor all of these reasons and having regard to the objectives of the Code, the Board considers that the unit applied for by the CCT is not appropriate for collective bargaining and that the application for certification should be dismissed.\n\nNotwithstanding the above conclusion on the appropriateness of the bargaining unit, the Board nevertheless considered the question of union support in this application as this question is of great interest and may be raised in other files.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-24", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 55–56", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In a regular certification application, pursuant to section 29(2) of the Code, the union simply needs to prove it has the support of between 35% and 50% of the employees in the unit in order to obtain a vote. When attempting to displace an incumbent bargaining agent, a situation termed “raid” in the current language of labour relations, the applicant union must at the time of the raid application have more than 50% of the employees as members of the union. The Board’s concern is to preserve industrial peace (see CJMS Radio Montréal (Québec) Limitée (1978), 33 di 393; and [1980] 1 Can. LRBR 270 (CLRB no. 151); Canadian Pacific Express and Transport Ltd., supra).\n\nThe Board, in Loomis Armored Car Service Ltd., July 17, 1999 (CIRB LD 97), determined that when an application for certification filed by a council of trade unions is intended to oust or displace certified bargaining agents that are not members of the said council, the situation must nevertheless be regarded as being in the nature of a raid. In that decision, the Board reconsidered an order that certified the Western Canada Council of Teamsters for a bargaining unit comprising all employees of Loomis Armored Car Service Ltd. Securicor is in fact the successor employer to Loomis in the provinces of Alberta, Saskatchewan and Manitoba. In that matter, the reconsideration panel asked the original panel to reconsider its initial decision with a view to determining whether different considerations should apply where the certification is being sought by a council of trade unions, rather than a single trade union.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-25", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 57–58", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In that reconsideration decision, the Board mentioned that the application for certification of a bargaining unit spanning the Prairie region could be considered as being in the nature of a raid as the applicant was seeking to displace bargaining agents representing smaller units sought by the raiding union. The Board made the following comments: Essentially, the present application can be considered as being in the nature of a raid as there are existing bargaining agents, not members of the council which the applicant seeks to displace. Thus the Board must ensure the representive nature of the applicant among the employees of the proposed bargaining unit and thereafter, exercise its discretion under section 32 of the Code in favour of the applicant council. Nor should section 32 be seen as a means of bringing into the fold a greater number of employees than contemplated in the original certifications. (Loomis Armored Car Service Ltd., supra, page 3; emphasis added)\n\nIn Tank Truck Transport Inc. et al., [1999] CIRB no. 27, the Board had to consider an application for certification filed by the CCT (as in the present matter), pursuant to section 32 of the Code, for all the employer’s businesses. The employees of the main employer’s business were already represented by a union of Teamsters locals. The CCT was seeking to enlarge the bargaining unit by including the unrepresented employees of the employer’s three other businesses. In that decision, the Board considered the application as being in the nature of a raid: [16] While purporting to be a new application for a larger group of employees, the instant application was considered by the other parties and the Board as being in the nature of a raid. (page 7; emphasis added)", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-26", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 59", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In VIA Rail Canada Inc. (1993), 92 di 90 (CLRB no. 1022), the Board reviewed an application for certification filed by a council of trade unions (the Council of Railway Unions), pursuant to section 32 of the Code, for a unit of shopcraft employees. The unit had already been found, pursuant to section 18 of the Code, to be appropriate for collective bargaining in VIA Rail Canada Inc. (1992), 90 di 1 (CLRB no. 963). In VIA Rail Canada Inc. (1022), supra, the Board observed that the application for certification filed by the Council of Railway Unions covered a broader unit than had previously existed and determined that the application was in the nature of a raid. The Board dismissed the application as the membership evidence did not indicate that the council represented a majority of the employees in the bargaining unit: The present application may be considered as being in the nature of a raid. Certainly there are existing bargaining agents, which the applicant seeks to displace, although those bargaining agents of course represent employees in the existing craft bargaining units, whereas it is the right to represent the employees in the new unified unit that, given our determination as to the appropriate unit in this case, is in issue here. The effect of section 29 of the Code is that a raiding trade union is not entitled to be placed on a representation ballot unless it can establish that a majority of the employees in the bargaining unit are among its members. ... (pages 92-93; emphasis added)", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-27", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 60", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In Télébec Ltée, supra, the Board did not allow one of the applicant unions to participate in the representation votes, ordered in respect of the new bargaining units. In that matter, six unions had applied for certification further to the transfer of constitutional jurisdiction from the provincial to the federal level. One of the applicant unions, the Syndicat des travailleurs et travailleuses de Télébec-CNTU (CNTU), had never represented employees of Télébec before and sought to represent a unit larger than the provincially recognized units. The original panel decided that all the provincially recognized bargaining agents, who filed certification applications, could participate in a vote save and except the CNTU, because it did not meet the basic requirements of the Code with respect to a union’s representative character.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-28", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 61", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The reconsideration panel dismissed the application and considered the CNTU’s application as a raid: This characterization stemmed from the fact that the CNTU was seeking to represent, in a single bargaining unit, office employees from a number of bargaining units who were represented for years by various bargaining agents. Although the certification application sought to redefine the bargaining structure for the office employees, it was not a first attempt at unionizing these employees, or at acquiring for them the right to bargain collectively. Its main purpose was to oust the incumbent bargaining agents. In this sense, CNTU’s application corresponds to the notion of raiding which the Board has adopted and has applied until now. Over the years, the Board has developed principles governing membership support in the case of raid situations. The first decisions dealing with this question held that the unit sought must be identical to the existing unit and that the union seeking to oust another union must have the support of more than 50% of the employees in the unit when it files its certification application. If the incumbent bargaining agent still represents a majority of employees, the Board orders a representation vote under section 29(1) to satisfy itself, in accordance with section 28(c), that a majority of employees wants to be represented by one of the unions. However, if the Board is satisfied that the raiding union has the required majority, it can certify it without a representation vote. ... So far, the Board has followed this approach in all raid situations, including Télé-Métropole Inc. (1992), 88 di 205 (CLRB no. 951); and VIA Rail Canada Inc. (1993), 92 di 90 (CLRB. no. 1022).", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-29", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 61", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In both cases, the Board reaffirmed that a union seeking to oust one or more other unions must have the support of more than 50% of the employees in the unit sought. (Télébec Ltée, supra, pages 145 and 148; and 143,387-143,389; emphasis added)", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-30", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "para 62", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The reconsideration panel stated that the requirement found in section 29(2) of the Code, that a mandatory vote must be held when between 35% and 50% of the employees in the unit are members of the trade union, only applies when the employees affected by the application for certification are not already represented by a union (“open field”). The Board confirmed that when the employees included in the new bargaining unit are already represented by many recognized bargaining agents, the applicant union must at the time of the raid application have more than 50% of the employees as its members in order to obtain a vote: In support of its reconsideration application, the CNTU proposed a literal interpretation of section 29(2). It argued that a vote is mandatory in the case of the office employee unit in respect of which, it claims, “no other trade union is the bargaining agent.” In our opinion and given the Board’s recent definition of this unit, this argument does not take into account past Board decisions which have established that section 29(2) of the Code does not apply to a “raiding” application. The main purpose of such an application is to enable employees to change bargaining agents. This provision applies only where there genuinely is a so-called “open field,” that is, where there is no union. CNTU’s interpretation apparently does not take into account the overall provisions of the Code concerning the representative character or their purpose, including the objective of the mandatory vote under section 29(2) which, in the final analysis, must allow non-unionized employees to decide whether they really want to be represented by a union.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-31", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 62–63", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In the Board’s opinion, this interpretation is confirmed by section 30(2) which gives employees the opportunity of choosing not to be represented by one of the trade unions named on a ballot, where the field is open. ... The purpose of section 29(2) is therefore to facilitate access to collective bargaining by employees not represented by a bargaining agent. However, in the present case, one fact is undeniable: employees included in the new bargaining unit are already represented by many recognized bargaining agents. ... The Board sees no reason to depart from the membership support rule imposed on a raiding union as it has been applied since the 1972 amendments; this rule also applies in raid situations where the bargaining unit configuration is altered. Such a change does not fundamentally alter the nature of the application, or the applicable membership support rule. ... For all practical purposes, to accept CNTU’s interpretation would mean that the industrial peace sought by the membership support rule in raid situations would be jeopardized, since a raiding union with the support of between 35% and 50% of the employees in a unit could require a vote, by convincing the Board that the bargaining unit should be redefined. The Board therefore believes that CNTU’s argument cannot serve as the basis for reversing its longstanding membership support rule in raid situations. (Télébec Ltée, supra, pages 149-150; and 143,389-143,390; emphasis added)\n\nThus, according to the principles set out above, the Board finds that this is an application for certification in the nature of a raid and that, in this type of case, the Board requires that the raiding union demonstrate that it has majority support, that is, more than 50% of the employees in the proposed bargaining unit.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5491-32", - "doc_type": "caselaw", - "act_code": "2004 CIRB 304", - "act_short": "Securicor", - "act_name": "Securicor Canada Limited", - "section": "", - "citation": "Securicor Canada Limited, 2004 CIRB 304", - "marginal_note": "paras 64–66", - "heading": "Certification and bargaining-unit determination under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board found in the instant matter that the applicant union does not have the support of the majority of the members comprised in the unit sought, that is 50%.\n\nThe Board found that the CCT had the necessary status to bring this certification application before it. The Board concluded that the proposed bargaining unit was not appropriate for collective bargaining pursuant to section 28 of the Code. Even had the bargaining unit been appropriate, the Board would not have certified the CCT, since it lacked the support of the majority of the employees in the proposed unit. Considering these conclusions, it was not necessary for the Board to decide whether it would have been appropriate to exercise its discretion to certify the CCT under section 32(2) of the Code, given all the circumstances in this case, including the reference to the CCT in one of the collective agreements filed with the Board.\n\nFor all of the above reasons, the Board dismisses the application filed by the Canada Council of Teamsters and orders that the ballot boxes kept sealed in file nos. 24064-C, 24207-C and 24215-C, while awaiting the result of the present application, be opened.", - "current_to": "2004-12-23", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" - }, - { - "id": "cirb-5593-1", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 1–2", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board is seized with two parallel applications, one filed on March 13, 2007, by the United Food and Commercial Workers Canada, Local 342P (the UFCW) and another filed shortly after on March 23, 2007, by the Grain Services Union (ILWU - Canada) (the GSU) (which will be collectively referred to as the unions). In both applications, the unions are seeking a declaration of a partial sale of business from Dawn Food Products (Canada) Ltd. (Dawn) to Dover Industries Limited (Dover), pursuant to section 44 of the Canada Labour Code (Part I–Industrial Relations) (the Code), and a declaration that Dover is the successor employer. The unions are seeking revised certification orders confirming that Dover is the successor employer and declaring that it is bound by the applicable collective agreements.\n\nIn its response to the two applications, Dover recognizes that it is the successor employer for that portion of Dawn’s business it acquired and that it is bound by the existing certification orders and applicable collective agreements between Dawn and the unions. However, by way of a counter application, Dover is requesting a review of the existing bargaining unit structure. It takes the position that the bargaining units represented by the UFCW and by the GSU should be consolidated in a single all-employee unit. Dover is also seeking the exclusion of two positions from the bargaining unit, the Shift Miller and the Network Administrator.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-2", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 3–5", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "By letter dated June 28, 2007, and pursuant to section 20 of the Code, the Board made the following interim decision: It is not contested between the parties and the Board is satisfied and declares that there has been a partial sale of business, within the meaning of section 44 of the Code, from Dawn Food Products (Canada) Ltd. to Dover Industries Limited and that the latter is the successor employer of a portion of the business previously operated by Dawn Food Products (Canada) Ltd. Pursuant to section 20 of the Canada Industrial Relations Board Regulations, 2001, the Board also found it appropriate to consolidate and hear the two matters together. The Board will hear the parties first on the issue of whether the existing bargaining units should be reviewed (two units vs one unit), on September 11, 12, 13 & 14, 2007 in Saskatoon, Saskatchewan at a place to be determined. The hearing will begin at 9:30 a.m. on September 11, 2007. The Board will deal with any related issues, including the question of inclusion/exclusion of the Shift Miller and the Network Administration positions, once it has determined whether to review the bargaining unit structure. Notwithstanding the above, the parties should nonetheless be prepared to discuss, during the above scheduled hearing dates, the process to be followed forward in determining any related issues, if necessary.\n\nAt the beginning of the hearing of the present matter, the parties submitted an Agreed Statement of Facts. The following is a summary of those facts, as well as other relevant facts derived from the parties’ written submissions and the evidence presented during the hearing.\n\nDover operates a flour mill located at 75 – 33rd Street in Saskatoon, Saskatchewan. Dover purchased this flour mill from Dawn on February 1, 2007.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-3", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 6–11", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "There are four commercial flour mills in the province of Saskatchewan. Two are located in Saskatoon and operate in close proximity to each other, the Dover flour mill and a flour mill operated by Horizon Milling GP (an affiliate of Cargill). Dover also operates a flour mill in Humbold. The fourth flour mill is located in Regina and is operated by NutraSun Foods.\n\nThe properties housing what is now the Dover flour mill operations comprise the following: the flour mill (the mill), the dry mix operation (the dry mix), the flour mill elevator (the elevator), the flour mill elevator annex (the annex), the flour mill elevator driveway (the driveway), and the warehouse. In addition, Dover presently occupies space in the office building owned by Dawn.\n\nWhat is now the Dover flour mill was first built in 1948. The flour mill began to operate in 1949 under the ownership of the Saskatchewan Cooperative Wheat Producers Limited. In 1953, it changed its name to Saskatchewan Wheat Pool (Saskpool).\n\nIn 1975, as part of its restructuring, Saskpool contracted out the management of its flour mill to CSP Foods Limited.\n\nIn 1992, CSP Foods Limited was discontinued and the operations of the flour mill reverted to Saskpool. Saskpool retained the business name CSP Foods which was known as “CSP Foods, a Division of Saskatchewan Wheat Pool.”\n\nOn February 25, 2002, Saskpool sold the Saskatoon flour mill to Dawn. Dawn operated both the flour mill and a wet goods plant. As stated above, Dawn sold the flour mill operations to Dover in February 2007. Dawn continued to operate the wet goods plant, which has since been closed.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-4", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 12–17", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The mill property is located on both sides of non-operative railway tracks. Historically, the operations on the east side of the tracks were performed by members of the GSU while the operations on the west side of the tracks were performed essentially by members of the UFCW. Today, to the exception of the administration office, no part of the operations is located on the west side of the tracks.\n\nThe Saskatchewan Wheat Pool Employees’ Association was first certified as the bargaining agent of a unit of office, clerical and other salaried employees of the flour mill, in April 1953. Ultimately, the GSU was the named bargaining agent for this unit. Throughout the years, different applications were filed with this Board and its predecessor to revise the certification order in order to reflect the proper union and/or employer names.\n\nThe current certification order describes the bargaining unit represented by the GSU as follows: all office (including Distribution Centre Office employees), laboratory, elevator, seed plant, and wet goods plant employees employed in Dawn Foods Products (Canada) Ltd.’s Saskatoon, Saskatchewan location, excluding casual employees, corporate office staff, administrative coordinator and those above the rank of administrative coordinator.\n\nThe most recent collective agreement between Dawn and the GSU has a term of February 1, 2006 to January 31, 2009.\n\nAs of the date of the GSU’s application, the bargaining unit represented by the GSU comprised the following number and classifications of employees:\n\nThe employees in the bargaining unit listed above are grouped under the following general classifications: Production Office, Main Office, Laboratory, FM Driveway and Flour Mill.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-5", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 18–24", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Following the sale from Dawn to Dover, 24 members of the GSU remained employees of Dawn in that portion of its operations which was not sold to Dover.\n\nThe United Packinghouse Workers of America (UPWA), Local 426, was first certified as the bargaining agent to represent the production employees at the flour mill, in April 1949. Ultimately, the UFCW became the bargaining agent for this bargaining unit. Throughout the years, different applications were filed with this Board and its predecessor to review the certification order to reflect the proper name of the union or the employer.\n\nThe current certification order describes the bargaining unit represented by the UFCW as follows: all employees of Dawn Food Products (Canada) Ltd. working at or from its flour mill in Saskatoon, Saskatchewan, excluding office staff, laboratory staff, shift millers, grain buyers, managers and those above.\n\nThe most recent collective agreement between Dawn and the UFCW has a term of March 1, 2005 to February 29, 2008.\n\nAs of the date of the UFCW’s application, the bargaining unit represented by the UFCW comprised the following number and classifications of employees:\n\nThe employees in the bargaining unit listed above are grouped under the following general classifications: Flour Mill Elevator Mill, Bakery Mix, Maintenance, Warehouse and Packing.\n\nFollowing the sale from Dawn to Dover, all of the members of the UFCW became Dover employees.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-6", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 25–27", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Dover is asking for a review of the existing bargaining unit structure composed of two bargaining units to combine them in a single all-employee bargaining unit. It takes the position that in the case of a sale of business, the test to be applied under section 45 of the Code is whether the employees concerned constitute one or more units appropriate for collective bargaining. Dover maintains that it is not necessary, in the context of a sale of business, to demonstrate that the existing bargaining unit structure is no longer appropriate.\n\nDover submits that, in applications for a declaration of a sale of business, because section 45 was added to the Code, the Board is no longer limited to the threshold test whereby it must find that the existing structure is no longer appropriate prior to reviewing the bargaining units. It submits that when section 45 applies, the Board has the authority to review the existing bargaining unit(s) in the context of its determination of “whether the employees affected constitute one or more units appropriate for collective bargaining.”\n\nIn support of its position, Dover relies on the Board’s decisions in Expertech Network Installations Inc., 2002 CIRB 182; Island Tug and Barge Limited and Canadian Merchant Service Guild, 2001 CIRB 112; and Télébec Ltée (1995), 99 di 1 (CLRB no. 1133).", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-7", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 28–29", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Dover also submits that notwithstanding that the test under section 45 applies, it is clear on the facts that there has been a substantial change in circumstances. These changes include the fact that the GSU has lost approximately 75% of its members in recent years. The size of the bargaining unit represented by the GSU also decreased by 24 members at the time of the partial sale from Dawn to Dover in February 2007. Dover submits that the most dramatic change resulting from the smaller bargaining unit represented by the GSU is that it has now lost any flexibility in drawing appropriate relief coverage for positions from within this unit.\n\nIn further support of its position that the Board should combine the two existing bargaining units in a single all-employee unit, Dover argues that when one looks at the usual factors canvassed in assessing the appropriateness of bargaining units, including the community of interest, the history of collective bargaining, the viability of the units, employee wishes, industry practice or pattern, the organizational structure of the employer and the Board’s preference for larger all-employee units, everything points, in the present case, to combining the existing two bargaining units in a single all-employee unit.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-8", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 30–31", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In particular, Dover points to the existing seniority issues when employees wish to transfer from one bargaining unit to the other, the difficulty in obtaining relief coverage, and filling vacancies for the production office and the driveway workers. The employer also points to the limited bumping and promotion options of employees from one bargaining unit to the other. More specifically, it submits that the small number of positions (15) in the bargaining unit represented by the GSU at Dover results in those employees having limited options in the event of a reduction in the workforce, as compared to what would be available to them under a single bargaining unit structure. The employer points also to potential limitations for members of the UFCW seeking to be transferred to less physically demanding work, to accommodate medical restrictions for example.\n\nAccording to Dover, some collective bargaining and labour relations issues are arguments in support of a single bargaining unit. These include the cost of administering two collective agreements, issues relating to the common pension plan for both units which can only be addressed in crisis situations, the existence of two parallel grievance processes, and the higher risk of labour disruption and the potential for the employer being whipsawed in negotiations. According to Dover, the existence of two bargaining units has created anomalous situations like the Assistant Millers (members of the UFCW) being paid more than the Shift Millers (members of the GSU) for a certain period of time because negotiations are separate.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-9", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 32–34", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Dover submits that the artificial jurisdictional lines between the existing bargaining units have resulted in significant and unnecessary inefficiencies, and that the two bargaining units as presently configured make no labour relation sense. Dover states that it would be virtually impossible for someone who has no knowledge of the jurisdictional lines existing between the two bargaining units to correctly determine where the dividing line is. According to Dover, the existing two bargaining units do not provide it with the necessary flexibility to manage its operations in a more effective and efficient manner and provide at the same time the employees affected with the best means of protecting their rights under the Code.\n\nDover maintains that if the Board was to disregard for a moment the existing bargaining rights of the unions and determine what bargaining unit configuration is appropriate in the circumstances, it is clear that an all-employee bargaining unit would be the answer. According to the employer, if the status quo remains, it will be at the expense of promotional opportunities and job security of the affected employees and it will continue to create difficulties, including, in the event of future expansion.\n\nFinally, Dover confirms that it has always had a good working relationship with both the GSU and the UFCW and that it does not have a preference for either union, as long as it can deal with a single all-employee bargaining unit.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-10", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 35–38", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The GSU takes the position that the employer’s application for a bargaining unit review is premature since it was made only two months after the sale from Dawn to Dover. According to the GSU, if the existing bargaining unit structure did create actual obstacles, Dover’s predecessor could have approached the unions earlier to discuss any possibility of reconfiguring the bargaining units or it could have applied to the Board at the time of previous transfers.\n\nWhile the GSU recognizes that the present bargaining unit structure is unique or unusual, it maintains that there is no evidence that the structure is inappropriate or not viable or that it has caused any serious or prolonged labour dispute. It also recognizes that there have been grievances relating to the jurisdiction of the units, but points to the fact that the parties were always able to resolve them without the need to go to arbitration. According to the GSU, the employer has not established that the existing bargaining unit structure causes actual hardship.\n\nThe GSU submits that there are more distinguishing factors than there are similarities between the two bargaining units. To illustrate this point, it submits that each union has a distinct representational model. It explains that the reason that the extended medical plan which the GSU has negotiated for its members is not available for the members of the UFCW is because the latter have made a conscious decision not to spend any money on such a plan.\n\nFinally, it asserts that there is no evidence that the employees concerned want to have the existing two bargaining units combined in a single all-employee unit.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-11", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 39–41", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Like the GSU, the UFCW submits that Dover’s application for a review of the bargaining units is premature, that the employer must first establish that the current bargaining unit structure is no longer appropriate and that, consequently, Dover has not met the threshold test required under section 18.1 of the Code to justify a review.\n\nThe UFCW submits that the current bargaining unit structure has existed for many years and history has shown that, for over 50 years, two separate bargaining units can indeed work well. It argues that there has been no real change in the type of business currently owned and operated by Dover from what was in place when it was first certified, that is, a flour and packaging mill. The UFCW also submits that there has been no real effort on the part of Dover to address the problems it has outlined in its application. According to the UFCW, all of these problems can be addressed in collective bargaining. It suggests that there may be a number of solutions to the issues raised by the employer, including, bringing some adjustments to the existing bargaining units.\n\nFinally, the UFCW submits that if the Board determines it is appropriate to combine the existing bargaining units, the parties should be given some time to reach an agreement concerning which union should be the bargaining agent for the combined unit, as well as any other related issues.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-12", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "para 42", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The relevant sections of the Code include the following: 44.(2) Where an employer sells a business, (a) a trade union that is the bargaining agent for the employees employed in the business continues to be their bargaining agent; ... (c) the person to whom the business is sold is bound by any collective agreement that is, on the date on which the business is sold, applicable to the employees employed in the business; and ... 45. In the case of sale or change of activity referred to in section 44, the Board may, on application by the employer or any trade union affected, determine whether the employees affected constitute one or more units appropriate for collective bargaining.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-13", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "para 43", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The question of which test to apply under a section 18.1(1) review application, as opposed to an application in the context of a sale or change of activity under section 44 of the Code, was canvassed by the Board in Expertech Network Installations Inc., supra: [108] Unlike section 45, section 18.1(1) provides that the Board must be satisfied that the units in question “are no longer appropriate for collective bargaining.” This wording implies the demonstration that the current bargaining unit structure is inappropriate, a sort of negative proof. Section 45, however, provides that the Board may decide “whether the employees affected constitute one or more units appropriate for collective bargaining.” Although this nuance may appear subtle, the fact remains that Parliament chose these different terms for section 45, and gave the Board positive authority to determine the number of units that are appropriate. [109] Section 18.1(1) is the mechanism under which either an employer or a bargaining agent can apply independently, in the absence of any of the circumstances necessary to file the application within sections 35 or 45 of the Code, to have the Board review bargaining unit structures. As can be seen in the earlier quotation from the Sims Report, because of the “substantial disruption and expense” that bargaining unit reviews cause, it recommended that Parliament include a test for applicants to meet in order for the Board to undertake such a review absent a section 35 declaration or an application pursuant to section 45.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-14", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 43–44", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Sims Report suggested that applicants should have to “satisfy the Board that there are serious problems with the current bargaining structures”, “[o]therwise there is no justification for interfering with the employees’ choice of bargaining agent.” This is reflected in the Code by Parliament’s addition of the words “if it is satisfied that the bargaining units are no longer appropriate for collective bargaining” in section 18.1(1) of the Code, a wording that does not exist in either sections 35(2), 45 or 18.1(2).\n\nThe Board is of the view that Dover’s application is timely and that it is not premature. The Board agrees with Dover that the time for it to apply for a review of the bargaining units was in conjunction with the unions’ applications for a declaration of a sale of business pursuant to section 44 of the Code. A partial sale of business occurred from Dawn to Dover. This event triggered the present applications to have Dover recognized as the successor employer and it is appropriate, in the context of these applications pursuant to section 45 of the Code, to determine any questions in respect of the bargaining units. Having said this, it does not mean that the Board will review existing bargaining unit structures without being convinced that there exist valid labour relations reasons to do so. However, in the context of a sale of business, the Board does not need to be satisfied that the units in question are no longer appropriate for collective bargaining to modify the bargaining unit structure.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-15", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 45–47", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Section 18.1(2) of the Code provides that if the Board reviews the structure of the bargaining units, pursuant to section 18.1(1) or section 35 or 45, it must allow the parties to come to an agreement, within a period that the Board considers reasonable, with respect to the determination of the bargaining units, and any questions arising from the review.\n\nIn the present matter, it was clear from the parties’ submissions with respect to the determination of the bargaining units, that the two possible outcomes were either to maintain the existing two bargaining units, as argued by the GSU and the UFCW, or to combine the two units in a single all-employee unit, as requested by Dover. This was confirmed by the Board in its interim decision of June 28, 2007, in which it confirmed the partial sale of business from Dawn to Dover and scheduled dates in September to “hear the parties first on the issue of whether the existing bargaining units should be reviewed (two units vs. one).” The Board is of the view that the parties had a reasonable amount of time, since the filing of their respective positions, to come to an agreement on the issue of whether the two existing bargaining units should be maintained or if they should be combined in one unit and, consequently, that the requirement of section 18.1(2) has been met in this regard.\n\nFor the reasons that follow, the Board has determined that the existing bargaining unit structure should be reviewed and that the existing two bargaining units should be combined in a single all-employee bargaining unit.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-16", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 48–50", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The flour mill operation, which is the subject of the present applications, has operated for several decades and both the GSU and the UFCW, and their respective predecessor unions, have represented employees of the mill since its early years of operation. There has been, over the years, a stable and mature collective bargaining relationship between the employer and the unions.\n\nEssentially, the unions argue that separate bargaining units have existed for more than 50 years and that these two bargaining units have been historically, and remain to date, appropriate for collective bargaining. They maintain that the administrative inconveniences raised by Dover should not outweigh the employees’ right to be represented by the union of their choice.\n\nThe Board understands the unions’ desire to preserve their respective representational rights. The Board is also very sensitive to the fact that, in the present matter, both unions have been the bargaining agents for their respective group of employees for several decades, at what is now the Dover mill. Although not insignificant, this factor is one among others to be considered. As the Board has previously stated, when it must determine whether to review existing bargaining units pursuant to section 45 of the Code, it examines several factors which, viewed as a whole, will assist the Board in its determination to review or not the existing bargaining unit structure (see Expertech Network Installations Inc., supra; BCT.TELUS, 2000 CIRB 73; TVA Group Inc., 2000 CIRB 67; and Télébec Ltée, supra).", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-17", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 51–53", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In the present matter, the Board is convinced that the rationale that may have existed over the years for maintaining two separate bargaining units no longer exist and that combining the existing two units in a single all-employee bargaining unit will provide a sound foundation and promote both business efficiencies and industrial relations stability in the future. The following factors have brought the Board to this conclusion.\n\nWhen the unions were first certified as bargaining agent for their respective bargaining units, and for many years after, the physical and functional distinctions between the two groups of employees were much more obvious than what they have become today.\n\nIn regard to the physical distinctions, by design or by coincidence, the railway tracks have, through the years, created a physical divide between the two bargaining units. The flour mill portion of the operations—where the members represented by the UFCW work—was and still is located on the east side of the railway tracks. The members of the GSU, to the exception of a few, worked in the part of the operations located on the west side of the tracks. Over the years and starting in 1988, the operations located on the west side of the tracks, except for the administration office, have been discontinued. In addition, with the passage of time, some positions were transferred from the west to the east side of the tracks, including the positions of production planner, production support clerk and shipping clerk. The laboratory employees also moved from the administration office to the plant. The lab is now located outside the production area on the second floor of the plant.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-18", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 54–56", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The traditional physical divide created by the railway tracks no longer exists. The only area where the geographic delineation between the two bargaining units is still noticeable is in respect to the office employees represented by the GSU. Although the administration offices are still located on the west side of the track, the evidence shows that it is probable that the administrative offices will be relocated to the mill building on the east side of the tracks because Dover does not own the office space it currently shares with Dawn, as its subtenant.\n\nWith respect to functional distinctions, as stated previously, over the years most of the operations outside of the flour mill have been discontinued. Following its acquisition of Dawn’s flour mill, Dover reverted to its core fundamental business of flour milling. Dover’s core business at its Saskatoon location is to receive grain, blend it, mill it into flour, package the flour, store the flour in its warehouse, and then ship it to customers.\n\nAll of Dover’s employees play a role in this integrated process. In fact, most of the employees in the unit represented by the GSU work closely with and in close proximity to the employees of the bargaining unit represented by the UFCW. The existence of a strong community of interest between employees in both bargaining units is undeniable. In some cases, there exists a greater community of interest between GSU and UFCW bargaining unit positions than there is between different positions within the same bargaining unit.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-19", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 57–59", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "For example, the Production Office, which currently comprises three positions of the bargaining unit represented by the GSU (Production Planner, Shipping Clerk and Production Support Clerk), is located on the main floor of the mill, just outside of the Warehouse where employees represented by the UFCW work. The employees in the Production Office must work closely with the Warehouse employees to assess production needs.\n\nThe Shift Millers (position represented by the GSU) and the Assistant Shift Millers (position represented by the UFCW) have very similar functions, in all respect. The employees in both positions work side by side in that they share a very small office space in the plant. They possess the same certified qualifications. The logical replacement or back-up for the position of Shift Miller is the Assistant Miller. As noted by the employer, because these two positions are not in the same bargaining unit and their terms and conditions of employment are negotiated separately, this has resulted in the past in the Assistant Miller receiving a higher rate of pay than the Shift Miller, for a period of time.\n\nSimilarly, the employees who work in the Driveway (included in the bargaining unit represented by the GSU) work in close proximity to the elevator employees in the bargaining unit represented by the UFCW and perform related functions in the integrated process. The Driveway employees bring in the grain and do the initial blending, while the Elevator employees blend the grain further prior to it being milled.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-20", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 60–61", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "With the advent of new technologies, the skill requirements of the laboratory employees have been reduced significantly. There are more instruments available today for plant operators to perform testing in the plant. The traditional and more physical work performed by employees in the UFCW bargaining unit has also changed over the years to a less physical type of work. This work is now more of a technical nature, like the operation of fork lifts.\n\nIn addition, a review of Dover’s organizational charts indicates that there is no clear division in the corporate structure between positions that fall under the UFCW bargaining unit and those that fall into the GSU bargaining unit. All managers report to the Director of Operations and all of the operations are serviced by a single Human Resources person. Moreover, at least half of the seven managers have employees from both bargaining units who report to them.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-21", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "para 62", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Another consideration is the fact that, from their initial creation and until more recently, the two bargaining units were relatively equal in size. Over the years and particularly with the partial sale of business from Dawn to Dover, the bargaining unit represented by the GSU has decreased in number. It now comprises 15 permanent employees while the UFCW comprises 75 permanent employees. Although a reduction in the size of a bargaining unit is not in itself a reason to review bargaining units, it can become a factor when this bargaining unit is part of a single integrated operation. In this matter, the evidence has shown that the limited number of employees in the bargaining unit represented by the GSU has accentuated replacement and back-up problems and has limited the opportunities for employee mobility. Although some movement of employees has been possible between the two bargaining units, it has been done with considerable negotiations between the parties and with considerable time having passed prior to the transfer of seniority from one bargaining unit to the other being confirmed.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-22", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 63–65", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The uncontested evidence establishes that the current bargaining unit structure does not allow for a rational use of the workforce. The relief coverage for back-up and vacancies that previously existed is no longer available because of the smaller bargaining unit that is represented by the GSU. This creates difficulties to find effective relief coverage from within that bargaining unit. The most obvious relief coverage for some positions in that bargaining unit are often within the UFCW positions. Examples include the employees in the Production Office and in the Driveway, where the jurisdictional lines between the two bargaining units have proved problematic. Although the parties admitted that they have in part been able to work out those difficulties through meetings and accommodations, the Board is of the view that these difficulties will likely persist if two separate bargaining units are maintained.\n\nPerhaps of less importance, but nonetheless a factor, is the fact that many other commercial flour mills, including the one operated by Horizon Milling GP that is located next door to the Dover flour mill, have all-employee bargaining units that include office, clerical and laboratory employees in a single bargaining unit.\n\nAs summarized above, the overall circumstances establish that over the years and with the recent sale from Dawn to Dover, there have been substantial changes in the working environment of the affected employees at Dover. The Board is convinced that the current situation goes beyond administrative inconveniences for the employer. A single all-employee bargaining unit will result in greater employee mobility, greater employer flexibility, administrative efficiencies and, overall, greater industrial or labour stability.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-23", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 66–68", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board is mindful that there are some differences between the collective agreements of the UFCW and the GSU. These include, for example, the fact that the members of the UFCW have made a conscious decision not to contribute to an extended health plan. The seniority provisions differ slightly in each collective agreement. However, many of the provisions in both collective agreements are the same, including the provisions relating to the method of remuneration and benefits like vacations, pension plan and sick leave. Overall, the Board is of the view that the differences that exist can be dealt with and that they can be addressed in collective bargaining.\n\nPursuant to section 45 of the Code, the Board grants Dover’s counter application for a review of the bargaining units to combine the two units in a single all-employee unit. Pursuant to sections 18.1(2), (3) and (4) of the Code, the Board gives the parties until no later than April 28, 2008, to reach an agreement on the following related issues: (1) Which union will be the bargaining agent for the single all-employee bargaining unit, the UFCW or the GSU? (2) Should a representation vote be held?; and (3) All other issues arising from combining the two bargaining units, including the issue of the inclusion/exclusion of the Shift Miller and Network Administrator positions.\n\nThe Board appoints Mr. John Taggart, Senior Labour Relations Officer, to assist the parties in attempting to reach an agreement in relation to the above issues.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-5593-24", - "doc_type": "caselaw", - "act_code": "2008 CIRB 405", - "act_short": "Dover Industries", - "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", - "section": "", - "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", - "marginal_note": "paras 69–70", - "heading": "Successor rights on the sale of a business under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In closing, the Board wishes to thank the parties and counsel for their submissions and co-operation to date. During the hearing of this matter and with the agreement of the parties, the Board requested and benefited from a guided tour of the Dover flour mill. This site visit proved to be both helpful in the Board’s understanding of the parties’ submissions and in its determination of the present matter.\n\nThis is a unanimous decision of the Board.", - "current_to": "2008-04-10", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" - }, - { - "id": "cirb-301063-1", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 1–4", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board is seized with two complaints by the Teamsters Local Union No. 419 (Teamsters or the union). The first complaint was filed on May 19, 2017 alleging that Swissport Canada Handling Inc. (Swissport or the employer) breached its duty to bargain in good faith, violated the statutory freeze provision, and interfered with the union’s representation of its members when it hired more than one hundred agency workers and offered pay incentives to employees after notice to bargain was served. The second complaint was filed on July 31, 2017, under section 94(2.1) of the Canada Labour Code (Part I– Industrial Relations) (the Code), in which it alleges that the employer was using replacement workers for the purpose of undermining the union’s representational capacity.\n\nDuring the course of the hearings into the first complaint, the parties concluded a new collective agreement, which was ratified by the majority of the employees in the bargaining unit on October 15, 2017. At the continuation of the hearing on October 16, 2017, the Board, on its own motion, asked the parties whether a labour relations purpose would be served by proceeding with the complaint. The parties presented oral arguments on this issue on October 19, 2017.\n\nFor the reasons set out below, the Board has decided that no labour relations purpose would be served by proceeding with these complaints.\n\nThe union represents a bargaining unit of “below-the-wing” employees working for Swissport at Lester B. Pearson International Airport in Toronto (the airport). The union and the employer were parties to a collective agreement that expired on July 23, 2017. The union served notice to bargain on December 16, 2016.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-2", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 5–6", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "On or around May 12, 2017, a number of agency workers began working at Swissport. On May 16, 2017, the union filed a grievance in which it alleges that the employer’s use of agency workers constituted improper “contracting-in” to the bargaining unit. The grievance is scheduled to be heard on September 20, 2018.\n\nThe union also filed its first unfair labour practice complaint with the Board on May 19, 2017 with additional particulars dated May 23, 2017 and July 26, 2017. In the complaint, the union alleges that the employer violated sections 50(a), 94(1) and 50(b) of the Code (Board file no. 32141-C—the “first unfair labour practice complaint”). In the first unfair labour practice complaint, the union alleges that the employer refused to negotiate rates of pay for ramp employees at the bargaining table and contracted out bargaining unit work to agency workers who were paid a higher rate of pay than bargaining unit employees. The union also alleges that the employer made offers directly to employees of double overtime for certain shifts on the weekend during the course of collective bargaining without consulting with the union. As a remedy, the union requests, among other things, “an Order of the Board pursuant to section 99(1)(b.1) of the Code that the Employer concede that the Collective Agreement between the parties shall contain a provision prohibiting the Employer from contracting out bargaining unit work”.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-3", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 7–8", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "On July 27, 2017, bargaining unit members commenced a lawful strike. In the weeks leading up to the strike action, the employer filed two separate applications for a declaration of unlawful strike pursuant to section 91 of the Code. The Board dismissed the first application because the conduct in question did not meet the definition of a “strike” (see Swissport Canada Handling Inc., 2017 CIRB LD 3826). In the context of the second application, the Board found that there was an appearance of an unlawful strike but decided that no labour relations purpose would be served by ordering a remedy where the parties faced the real threat of a lawful work stoppage in less than 36 hours (Swissport Canada Handling Inc., 2017 CIRB LD 3830).\n\nOn July 31, 2017, the union filed a new unfair labour practice complaint, under section 94(2.1) of the Code, in which it alleges that the employer was using replacement workers for the purpose of undermining the union’s representational capacity. The union contends that the employer used an increasing number of agency workers to perform bargaining unit work in the days leading up to and during a lawful strike (Board file no. 32232‑C—the “second unfair labour practice complaint”). In the second unfair labour practice complaint, the union seeks a declaration that the employer used replacement workers for the purpose of undermining the representational capacity of the union and a cease and desist order for the duration of the labour dispute.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-4", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 9–10", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "On August 10, 2017, the union filed a related application for an interim order under section 19.1 of the Code, requesting an order directing the employer to cease employing agency workers until the Board makes a determination with respect to the merits of the second unfair labour practice complaint. The Board dismissed the union’s application for an interim order on August 18, 2017 (see Swissport Canada Handling Inc., 2017 CIRB LD 3858).\n\nThe employer raised a number of preliminary objections in response to the union’s two complaints. It argued that the union’s unfair labour practice complaints did not make out a prima facie case, that they were an abuse of process, and that the Board should exercise its discretion pursuant to sections 98(3) or 16(l.1) to dismiss or defer hearing the complaints because there is an existing grievance dealing with the issue of contracting out, which has been referred to arbitration.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-5", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 11", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "After hearing oral arguments on August 22, 2017, the Board dismissed the employer’s preliminary objections pertaining to the first complaint. However, in light of the pending grievance and the Board’s general reluctance to interpret the language in the parties’ collective agreement, the panel described the essential character of the first complaint in Swissport Canada Handling Inc., 2017 CIRB LD 3849 (LD 3849) as follows: ... whether the conduct of the employer during collective bargaining and whether the use of the contracting out provision—whether permissible or not pursuant to the collective agreement—amounted to an unfair labour practice. More specifically, the Board will determine whether the manner, the timing and the effect of resorting to the contracting out provision by the employer is a violation of the duty to bargain in good faith (section 50(a)) and/or interfered with the union’s ability to represent its members in collective bargaining (section 94(1)(a)). The Board was satisfied that a prima facie case on these allegations has been made out and refused to exercise its discretion pursuant to sections 98(3) or 16(l.1) to dismiss or defer hearing the complaint. With respect to the complaint made pursuant to section 50(b), the Board indicated that this complaint was essentially rooted in a determination of whether the agency workers are employees of Swissport Canada Handling Inc., requiring an interpretation of the contracts in place and the contracting out provision as well as other provisions of the collective agreement. Accordingly, the Board concluded that this issue was better left for the grievance process and the interpretation and application of the collective agreement by an arbitrator.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-6", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 11–12", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Therefore, the Board exercised its discretion pursuant to section 98(3) and will refuse to hear this aspect of the complaint as an alleged breach of the freeze provision (section 50(b)). (page 2)\n\nOn August 23, 2017, the Board held a case management teleconference with the parties in the union’s two unfair labour practice complaints. In the course of the teleconference, the union maintained its allegations of a violation of a freeze provision as it applies to the direct offering of incentives by the employer to bargaining unit members after notice to bargain was served. As a result, the Board clarified the above ruling and allowed the union to present evidence on this specific aspect of the complaint under section 50(b) of the Code.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-7", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 13", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board invited the parties to make any additional submissions on the employer’s preliminary objections with respect to the second unfair labour practice complaint. After reviewing the parties’ additional written submissions, the Board dismissed the employer’s preliminary objections pertaining to the second unfair labour practice complaint in Swissport Canada Handling Inc., 2017 CIRB LD 3861 and indicated that it would hear the merits of the second complaint consecutively to the first complaint. In dismissing the preliminary objections, the Board described the essence of the union’s second unfair labour practice complaint as follows: The circumstances that form the basis of the complaint filed under section 94(2.1) of the Code emanate from the conduct of the employer during collective bargaining and the timing, manner and effect of the employer’s decision to resort to agency workers. Although the factual basis for this complaint is similar to or the same as the set of facts supporting the related complaint of unfair labour practice in file no. 32141-C, the union, in the instant complaint, is alleging that the continued use of agency workers by the employer once the strike began was for the purpose of undermining the union’s representational capacity in bargaining. The union relies on the conduct of the employer during collective bargaining as it relates to the decision to use agency workers and the continued use of the same workers after the strike began, and invites the Board to infer that the employer’s purpose is not the pursuit of legitimate bargaining objectives, but rather to undermine the union’s representational capacity. The Board is of the view that these issues are better left for determination through inquiry and examination of evidence.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-8", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 13", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "As pointed out by both parties, this type of complaint has rarely been examined by the Board, and its jurisprudence is still evolving in this particular area. The Board appreciates that the parties have a different interpretation of the applicable test and threshold to be met for a complaint to be successful under section 94(2.1) of the Code. As such, it is prudent for the Board to proceed to examine the merits of the complaint and make a determination as to whether there was a breach of the Code in this instance. Further, the Board is unable to conclude that the filing of the complaint pursuant to section 94(2.1) shortly after the strike began is an abuse of process in these circumstances. The union filed its complaint at the earliest convenience and as the circumstances evolved with respect to the use of replacement workers/agency workers. The fact that the complaint may be based on the same factual set of circumstances does not result in it becoming abusive. The rights in the Code are meant to be enforced as necessary, and the Board will be very reluctant to dismiss a complaint on the basis that it is abusive for raising similar facts as a previous complaint without examining its merits. Additionally, the Board has determined that the pith and substance of the complaint filed by the union is whether the use of replacement workers by the employer is for a purpose other than the legitimate pursuit of collective bargaining objectives. This is a matter that falls squarely within the Board’s jurisdiction and its authority and power to enforce the rights and policy objectives embedded in the Code. This is not a matter that can be determined or resolved through grievance arbitration.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-9", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 13–17", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Therefore, the Board will not dismiss or defer hearing the complaint pursuant to sections 98(3) or 16(l.1) of the Code. Accordingly, the Board will proceed to hear the merits of the complaint consecutively to the first complaint filed by the union in file no. 32141-C. (pages 2–3)\n\nHearings on the substance of the union’s first unfair labour practice complaint began on September 26, 2017. The bargaining unit members ratified a new collective agreement on October 15, 2017 for a three-year term. At the hearing on October 16, 2017, the Board asked whether a labour relations purpose would be served by proceeding with the complaint. The parties presented oral arguments on this issue on October 19, 2017.\n\nBoth parties submitted thorough arguments on the issue of mootness and referred the Board to a broad range of decisions from both the federal and provincial jurisdictions. The Board has carefully reviewed the parties’ submissions and the case-law provided in support. What follows is a summary of the key elements of the parties’ positions.\n\nThe employer submits that, in light of the settlement of the collective agreement and subsequent ratification of that agreement on October 15, 2017, the Board should not proceed with the union’s unfair labour practice complaint.\n\nThe employer argues that the matter is now moot since there is no longer a “live controversy” between the parties. It further argues that there is no sound labour relations purpose to be served by proceeding with the complaint, regardless of the Board’s determination on mootness. Referring to the Board’s decision in Westcan Bulk Transport Ltd. (1994), 95 di 169 (CLRB no. 1090), the employer states that the Board possesses the inherent discretion not to proceed in this matter.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-10", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 18–22", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The employer contends that the union’s allegations have been rendered moot by the mere fact of the negotiated settlement and by the actual terms of the settlement. In this regard, it explains that the return to work protocol deals with the issue of agency workers, which shows there is no lis between the parties. The employer explains that the factual event which gave rise to the complaint is the decision to contract out and bring in agency workers. The parties themselves have agreed in the terms of the ratified settlement that the employer will make best efforts to remove agency workers.\n\nThe employer invites the Board to examine the essential character of the allegations brought forth by the union under sections 50(a), 94(1)(a) and 50(b). In the employer’s view, all three aspects of the union’s complaint relate to allegations that obstacles were put in place which were preventing parties from achieving a collective agreement.\n\nThe employer argues that the purpose of proceeding and obtaining a remedy would be to enable the parties to reach a freely negotiated collective agreement, which the parties have already done in this case. The employer submits that there is no possible remedy left in this case and in any event, if there is still an issue remaining about improper contracting out, this matter will be determined at arbitration.\n\nIn summary, because the parties have already reached a freely negotiated collective agreement, the employer contends that the entire proceeding is moot.\n\nIn addition, the employer submits that no labour relations purpose would be served by pursuing the complaint.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-11", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 23–24", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "First, the employer argues that apart from a declaration of breach, the Board is without jurisdiction to issue the remedy requested by the union, namely to direct the parties to include a provision in their collective agreement prohibiting contracting out. It refers to the plain language in section 99(1)(b.1) of the Code in support of its contention that the employer cannot include a specific term on contracting out or withdraw from a bargaining position because the parties are no longer engaged in collective bargaining. The employer submits that a remedy under section 99(1)(b.1) of the Code is only available while the parties are in collective bargaining and where there is a finding of a breach of section 50(a) of the Code.\n\nSecond, the employer submits that the Board has a policy not to issue retroactive or academic declarations. In this regard, the employer refers to the Board’s decision in the first unlawful strike application between the parties, in which a cease and desist order was declined because the unlawful strike was not ongoing. The employer argues that the policy considerations in the context of an unlawful strike application are still applicable in this case.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-12", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 25–26", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Third, leaving aside section 99(1)(b.1) of the Code, the employer acknowledges that the Board still has general remedial jurisdiction under section 99(2) of the Code. It submits that the union did not seek a remedy under section 99(2) and in any event, any subsequent remedy constraining the settlement reached between the parties would be an improper intrusion into the sanctity of free collective bargaining. The employer contends that the Board will only impose terms to the collective agreement in exceptional cases, such as in Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, which was nothing like the circumstances in this complaint. The employer submits that the union is asking the Board to provide an outcome that it was unable to secure at the bargaining table.\n\nFourth, the employer submits that it would be a waste of resources to proceed with this matter. There would likely be five additional hearings days in this case not including the second unfair labour practice complaint, which is substantial. The employer presented nine will-say statements in preparation for the hearing and by the time the parties reached a collective agreement, the union was halfway into the cross-examination of the first will-say statement.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-13", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 27–29", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Regarding the union’s claim that the issue will come up again in future rounds of bargaining, the employer states that this is entirely speculative. It explains that the circumstances which led to this case were the employer’s inability to attract employees because of wages. The employer is hopeful that with higher wages in the collective agreement, the shortage of staff, which led to its decision to contract out, will not come up again. In addition, the employer states that the collective agreement has a mid-term contract provision to address future issues which arise during the term of the collective agreement.\n\nThe union submits that the complaint is not moot because the remedy it is seeking is still available. It asks the Board to amend the term of the collective agreement to prohibit the employer from contracting out. The union refers to its request on July 26, 2017 for “an Order of the Board pursuant to section 99(1)(b.1) of the Code that the Employer concede that the Collective Agreement between the parties shall contain a provision prohibiting the Employer from contracting out bargaining unit work”. It further submits that the Board should exercise its discretion to decide the complaint even if it is found to be moot.\n\nThe union argues that the Board must consider whether a remedy is still available and meaningful in this case even though a collective agreement is in place. It submits that the members of the bargaining unit understood the complaint would continue before the Board at the time they ratified the collective agreement.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-14", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 30–31", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The union contends that if the Board were to dismiss the complaint as moot, after approximately six months of litigation, it would send a clear message to union members that their statutory rights are unenforceable. In the union’s view, such a decision would promote labour unrest and would suggest that the only way to preserve statutory rights is to maintain labour disruption, which is contrary to the objectives of the Code. In other words, the union states that if the Board were to dismiss the complaint as moot, it would mean that the only way the complaint could be heard is if the employees remained on strike.\n\nThe union distinguishes the facts in this case from those in Canadian National Railway Company, 2011 CIRB 572 (RD 572), where there was no remedy sought. It notes that in RD 572, the complaint continued for one and a half years after the parties reached an agreement and the mootness issue, which was raised on the Board’s own motion, arose out of the parties’ inaction during the six previous months.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-15", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 32", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "On the issue of remedy, the union submits that both sections 99(1)(b.1) and 99(2) of the Code are available in this case. It requested that the employer concede that a collective agreement shall contain a provision prohibiting contracting out. In the union’s view, the Board has the clear authority to amend the collective agreement where circumstances warrant even if the conditions in section 99(1)(b.1) have not been met. The union refers to the decisions in Cairns, 2003 CIRB 230 and the principles therein when assessing remedial orders, namely: There must be a relation between the breach, its consequences and the remedy; The Board is justified in using its experience and special skill in crafting a remedy; The Board takes into account the objectives of the legislation; The Board has broad remedial powers under section 99(2) of the Code; and The complainant should be put in the position it would have been had the wrong not occurred.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-16", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 33–34", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "First, the union contends that the remedy sought is narrowly tailored, and rationally connected, to the illegal conduct of the employer in this case. In the union’s submission, it is the employer’s overt reliance on its legal right to contract out which has led to the breach of the Code. Therefore, the union states that the Board should order a remedy, which restricts that right. The union relies on Justice Dickson’s dissenting reasons in Canadian Union of Public Employees v. Labour Relations Board (N.S.) et al., [1983] 2 S.C.R. 311 (the Digby School Board case) in support of its contention that the Board has the authority to make such an order prohibiting contracting out for the duration of the collective agreement. The dissenting reasons of Justice Dickson were relied upon by the majority in Royal Oak Mines Inc. v. Canada (Labour Relations Board), supra.\n\nSecond, the union urges the Board to use its expertise to consider the likelihood that a collective agreement would be ratified if the union thought the Board, on its own motion, would dismiss the complaint. The union argues that the employer’s conduct has irreparably harmed its ability to properly represent its members and to negotiate on a fair playing field. In the union’s view, it would be unfair to dismiss the complaint because it agreed to a contract and ceased labour disruption. In assessing the remedy, the union invites the Board to question why the employer did not bring forward the mootness argument. In this regard, the union suggests that the employer understood the union would be maintaining its complaint despite the conclusion of the collective agreement.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-17", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 35–37", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Third, with respect to the objectives of the legislation, the union argues that free collective bargaining is not the only objective in the Code. It argues that dismissing the complaint on the basis of mootness would run contrary to sound labour relations and sends a message to the members of the bargaining unit that they should have stayed on strike.\n\nFourth, the union argues that both sections 99(1)(b.1) and 99(2) of the Code grant the Board power to order an amendment to the collective agreement.\n\nFifth, with respect to returning the union to the position it would have been had there not been a breach, the union submits that it would be impossible to do so in this case. In the union’s view, the remedy requested only partially addresses the harm it has suffered. The union refers to its last offer to the employer on July 21, 2017 in which it amended its proposal and offered binding arbitration on the issue of no contracting out. The union states that it is only fair to ask for this remedy here, which is different from imposing a term in the collective agreement. The union submits that there is no reasonable dispute that the Board has the authority to order the remedy requested.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-18", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 38–40", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The union further argues that even if the complaint is moot, the Board should exercise its discretion to continue the hearing because the matter at issue is “capable of repetition and evasive of review”. In other words, the union submits that the issue will come up again between the parties in the future, but it is unlikely that the complaint will be adjudicated to completion in a timely manner, given the nature and complexity of such a complaint. The union alleges that in order to obtain a decision in this matter, it would have to wait a year and would therefore have had to remain on strike for seven or eight months.\n\nAs a result, the union urges the Board to exercise its discretion to continue to hear the complaint; otherwise the issue will never be determined. In this regard, the union refers to the decision in Trillium Lakelands District School Board and Upper Canada District School Board, [2013] OLRB Rep. March/April 427, in which the OLRB noted that to characterize the dispute as academic would insure that the dispute will always disappear before it can be heard. In this case, the Board has already had five days of hearing. In the union’s submission, the expenditure of resources cannot be thrown away. The union feels that it will have no access to justice without a decision on the merits of the complaint.\n\nThe Board in this case raised the issue of mootness on its own initiative. After the new collective agreement was reached, the Board asked the parties to provide oral arguments on whether a labour relations purpose would be served by proceeding with the first complaint.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-19", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 41–42", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In Westcan Bulk Transport Ltd., supra, the Board confirmed its authority to refuse to hear and determine a complaint where there is no longer a live controversy between the parties and the determination would have no practical effects on the rights of the parties. It stated the following regarding the Board’s authority to dismiss a complaint as moot: ... the Board’s obligation to “hear and determine” a complaint pursuant to section 98 cannot be interpreted to require the Board to hear the merits of complaints that are moot and for which a determination would have no practical effect on the parties’ rights. The Board has repeatedly alluded, without elaboration, in past decisions to its power to dismiss complaints which are moot; see: Québec Ports Terminals Inc. (1991), 85 di 71 (CLRB no. 870); Halifax Grain Elevator Limited (1991), 85 di 42; 15 CLRBR (2d) 191; and 91 CLLC 16,033 (CLRB no. 867); and Purolator Courier Ltd. (1981), 45 di 300 (CLRB no. 344). (pages 173–174)\n\nThe Board, as master of its own proceedings, has the authority to raise with the parties the question of whether there is a labour relations purpose in proceeding with a complaint in light of a change in circumstances. The Board exercised this authority more recently in Fredericton International Airport Authority Inc., 2012 CIRB 647.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-20", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 43", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Both parties referred the Board to the two-step analysis set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 on the issue of mootness: The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. ... The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. ... (page 353)", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-21", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 44–46", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "While the approach in Borowski v. Canada (Attorney General), supra, can serve as a useful tool, the focus of the Board when it decides whether to refuse to hear and determine a complaint is generally on the issue of whether a labour relations purpose would be served by proceeding with the complaint.\n\nWith these principles in mind, first, the Board will determine whether there is a live controversy between the parties and, second, the Board will assess whether a labour relations purpose would be served by hearing and determining the complaint.\n\nAs a general rule, the Board will not automatically dismiss as moot a complaint alleging a breach of the duty to bargain in good faith solely for the reason that a collective agreement has been concluded. In fact, in Atomic Energy of Canada Limited, 2001 CIRB 110, the Board determined the merits of a bad faith bargaining complaint despite the fact that a collective agreement had already been reached. In that case, the union alleged that the employer breached its duty to bargain in good faith by failing to disclose information regarding salary increases and promotions. In finding that the complaint was not moot, the Board noted:", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-22", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 47–48", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Unless the necessary information is disclosed, the negotiation of such a remedy or even the process of administration of the collective agreement itself may be a mere sham. The failure to disclose such clearly relevant information following notice to commence collective bargaining is a clear violation of section 50(a)(i) and (ii) as alleged. The continuation of that failure is a continuing violation. This is so even after the conclusion of a new agreement, particularly so in circumstances such as the present where it was made express at the time the agreement was concluded that the information was still being sought and still viewed as of importance by the bargaining agent and where the information in question continues to be of importance. [47] The decision in Atomic Energy of Canada Limited, supra, is important in that it demonstrates that the conclusion of a collective agreement does not automatically render a bad faith bargaining complaint moot. The Board also focused on the relation between the remedy being sought and its importance to the bargaining relationship as a whole, including the administration of the collective agreement. Indeed, the information withheld by the employer was essential to the representational capacity of the bargaining agent.\n\nThat said, the Board has also found that certain complaints related to a party’s conduct during collective bargaining have been rendered moot as a result of the conclusion of a collective agreement in light of the particular circumstances of each case.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-23", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 49", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In Can-Ar Transit Services, Division of Tokmakjian Limited, October 17, 1997 (LD 1750), the union requested that a complaint alleging breaches by the employer of sections 50, 94 and 96 it had previously filed, years earlier, be consolidated and heard with a more recent application for termination of the union’s bargaining rights before the Board. The union asserted that the employer’s position during bargaining and the subsequent filing of the termination application were evidence that the employer was not acting in good faith at the time of its complaint. The Board had not determined the merits of the section 50 complaint, but had issued a declaration regarding their obligations in a collective bargaining relationship. Following this declaration, the parties negotiated and concluded a collective agreement. However, in the declaration, the Board indicated that it remained seized of the matter should any other issues arise, and the union relied on this declaration to attempt to resurrect its complaint. In dismissing the complaint as moot, the Board stated the following: Admittedly, the successful conclusion of a collective agreement does not prevent the Board from considering the merits of the complaint relating to the employer’s refusal to meet and bargain with the Union, as alleged in its complaint. Such facts—if proven—would allow for a declaration that the employer had violated the Code by having committed an unfair labour practice. The question, however, remains as to whether it is appropriate for the Board to examine and decide these issues now. The Board considers that a hearing regarding collective bargaining issues, which are now without object, would not be conducive to furthering good labour relations.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-24", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 49", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "This is particularly so when no appropriate remedy can be provided. ... ... Given the conclusion of a collective agreement subsequent to the filing of the complaint, issuing an order would have no practical effect on the parties with respect to the employer’s conduct, which allegedly took place in 1995 and early in 1996. The issues in question with respect to those negotiations are now moot (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342). In these circumstances, and in the absence of any factors which warrant us to exercise our discretion to consider the complaint on its merits notwithstanding that it is moot, the Board has decided that it will not hear the complaint. Consequently, the complaint is dismissed as being academic and the request to consolidate file 745-5316 with the application for termination of the ATU’s bargaining rights is rejected. (pages 3–4)", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-25", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 50", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Similarly, in Canadian Broadcasting Corporation (1997), 104 di 34 (CLRB no. 1201), the employer filed a bad faith bargaining complaint alleging that it was being improperly forced to bargain jointly with three bargaining agents who had entered into a Joint Bargaining Agreement and that this agreement was unlawful. The Board dismissed the matter as being moot because collective agreements had been concluded with respect to each of the three bargaining units in question and no labour relations purpose would be served by pursuing the complaint. The Board stated the following: Given that collective agreements have been concluded in respect of each of the three units in question, we do not consider it appropriate to hear what could be lengthy and contentious evidence concerning the agreement and its application. The matter is moot, and after hearing arguments from the parties on this point, we conclude that no valid labour relations purpose would be served by determining these complaints on their merits at this time. (page 37)", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-26", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 51", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "More recently, in Canadian National Railway Company, supra, the TCRC filed a complaint alleging that CN had breached its duty to bargain in good faith by pre-emptively training replacement workers on the job and having them perform bargaining unit work as a training tool. The union also alleged that these actions interfered with the trade union and undermined its representational capacity. After filing the complaint and after the union initiated a strike action, the parties reached an agreement to submit unresolved issues related to wages and benefits to binding arbitration. The Board had initially decided to continue to hear and determine the matter despite the parties’ agreement. In deciding to do so, the Board took particular note of the parties’ parallel collective bargaining negotiations that were ongoing for a separate bargaining unit and for which an identical issue with respect to the training of replacement workers had been raised. However, when that second collective bargaining dispute settled and after the parties failed to provide a status report, the Board, on its own initiative, asked the parties to show cause why the complaint should not be deemed to be withdrawn pursuant to section 29(2) of the Canada Industrial Relations Board Regulations, 2001. After considering the parties’ submissions, the Board was of the view that there was no longer a live issue in this case: [16] In the present case, it is evident that the circumstance that gave rise to the complaint, namely the training of managers to allegedly act as replacement workers in the event of a strike by the LE and/or CTY bargaining unit, no longer pertains, and thus the issue is academic.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-27", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 51–53", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Therefore, the question for the Board is whether it should exercise its discretion to decide the merits of the complaint, despite the absence of a current controversy.\n\nThe Board ultimately declined to exercise its discretion to hear and determine the complaint because no labour relations purpose would be served in doing so.\n\nIn the present matter, the parties have presented differing views on whether the complaint itself is moot as a result of the conclusion of the collective agreement. On the one hand, the employer maintains there is no longer a live controversy because collective bargaining was central to each of the allegations in the complaint and the collective agreement resolved the underlying collective bargaining obstacles. On the other hand, the union argues that the matter is not moot because there is an available remedy beyond mere declarations. In its submission of July 26, 2017, the union requested “an Order of the Board pursuant to section 99(1)(b.1) of the Code that the employer concede that the collective agreement between the parties shall contain a provision prohibiting the employer from contracting out bargaining unit work”.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-28", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 54–55", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In order to determine whether there is still a live controversy between the parties, it is necessary to carefully examine the nature of each of the union’s allegations. In the complaint, the union alleges the following: The employer violated its duty to bargain in good faith under section 50(a) of the Code when it refused to negotiate rates of pay for ramp employees at the bargaining table and decided to hire agency workers who were paid more than ramp employees. The employer interfered with the union’s ability to represent its members during collective bargaining in violation of section 94(1)(a) of the Code. The employer offered double time incentive pay after notice to bargain was given and thus violated the freeze provision in section 50(b) of the Code.\n\nIn LD 3849 the Board described the essential character of the union’s complaint under sections 50(a) and 94(1)(a) of the Code as follows: ... whether the conduct of the employer during collective bargaining and whether the use of the contracting out provision—whether permissible or not pursuant to the collective agreement—amounted to an unfair labour practice. More specifically, the Board will determine whether the manner, the timing and the effect of resorting to the contracting out provision by the employer is a violation of the duty to bargain in good faith (section 50(a)) and/or interfered with the union’s ability to represent its members in collective bargaining (section 94(1)(a)). ... (page 2)", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-29", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 56–57", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In that same decision, the Board specifically declined to make a determination which would require an interpretation of the contracts in place and the contracting out provision in the collective agreement. In the Board’s view, these issues were better left for the grievance process and the interpretation and application of the collective agreement by the grievance arbitrator.\n\nThe circumstances that gave rise to the union’s complaint under sections 50(a) of the Code and 94(1)(a) of the Code are the employer’s refusal to negotiate rates of pay for ramp employees at the bargaining table and the employer’s decision to hire more than a hundred agency workers after notice to bargain was given. The employer noted, and the union did not dispute, that the newly negotiated collective agreement provides higher rates of pay for ramp employees and allows the parties to conclude mid-term contracts. In addition, in the parties’ return to work protocol, it is specifically stipulated that the employer will “make every best effort to eliminate the services of agency/replacement workers currently engaged by the Employer within sixty (60) days following ratification of the Memorandum of Settlement.” In the return to work protocol, the parties also acknowledged that the agency/replacement workers may be hired into the bargaining unit. In the Board’s view, these elements combined show that there is no longer a live controversy regarding the circumstances which led to the filing of the complaint under section 50(a) and 94(1)(a) of the Code. The collective agreement reached by the parties addresses the key issues that were central to the complaint.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-30", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 58–59", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Similarly, the Board is of the view that there is no longer a live controversy regarding the breach of the statutory freeze provision. In United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp., 2014 SCC 45, the majority of the Supreme Court of Canada recently reaffirmed the purpose of the statutory freeze provision as follows: [34] In my opinion, the purpose of s. 59 in circumscribing the employer’s powers is not merely to strike a balance or maintain the status quo, but is more precisely to facilitate certification and ensure that in negotiating the collective agreement the parties bargain in good faith (Bergeron, at pp. 142 and 147; F. Morin, Le Code du travail: sa nature, sa portée, ses effets (1971), at pp. 16-17; Club coopératif de consommation d’Amos v. Union des employés de commerce, section locale 508, SOQUIJ AZ-85141201 (T.A.), at pp. 11–12; Association des juristes de l’État v. Commission des valeurs mobilières du Québec, [2003] R.J.D.T. 579 (T.A.), at para. 71).\n\nThus, the statutory freeze provision is a measure designed to not only maintain the status quo but also acts as a safeguard to ensure that the parties bargain in good faith with the objective of concluding a collective agreement. Since the parties were able to achieve a freely negotiated collective agreement, there is no longer a live controversy regarding the employer’s alleged attempts to influence collective bargaining by offering incentives to employees during the freeze period. Accordingly, the Board finds that there is no longer a live controversy regarding the circumstances which led to the filing of the complaint under section 50(b) of the Code.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-31", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 60–61", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The union urged the Board to consider that the complaint is not moot, because it is still requesting a remedy, which includes an order “that the employer concede that the collective agreement between the parties shall contain a provision prohibiting the employer from contracting out bargaining unit work”. The employer argues that the Board does not have the authority to grant such a remedy in this case.\n\nThe union referred to the decisions in Royal Oak Mines Inc. v. Canada (Labour Relations Board), supra; and Cairns, supra, in support of its position that the Board has the authority to issue the remedial order requested. However, these decisions were issued in a completely different context. In Royal Oak Mines Inc. v. Canada (Labour Relations Board), supra, the majority of the Supreme Court, upheld the Board’s remedial order which directed the employer to make certain offers subject to binding arbitration. However, in doing so, the Supreme Court highlighted the exceptional circumstances of that case, which included a lengthy and violent labour dispute. In addition, the parties had not yet reached a collective agreement when the Board issued its decision. The Cairns, supra, matter, on the other hand, arose from a duty of fair representation complaint. This was not a case where a party to a collective agreement was asking the Board to amend a term of the freely negotiated collective agreement it had just ratified.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-32", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 62–65", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The union’s argument on this point would essentially mean that as long as the Board has the authority to impose a remedy and the union maintains its request for a remedy, these would be sufficient reasons to pursue the complaint even though the parties have already resolved the underlying labour relations dispute. The Board is not persuaded by this argument. The fact that the union is maintaining its request for a remedy cannot, in and of itself, serve to create a live controversy when the complaint has become moot.\n\nFor the above reasons, the Board finds that there is no longer a live controversy between the parties with respect to the underlying issues which led to the complaint.\n\nThat said, the Board will assess whether a labour relations purpose would be served by proceeding with the complaint despite the fact that it is moot.\n\nThe union argues that it should not be penalized for concluding a collective agreement and the employer’s alleged conduct sanctioned because the union agreed to end the work stoppage. The union states that it accepted the collective agreement and agreed to end the strike with the understanding that it would continue with its complaint before the Board. It states that it would otherwise have had to continue a lengthy strike in order to wait for the outcome of these proceedings and a meaningful remedy.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-33", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 66", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "First, the Board is very aware and sympathetic to the fact that these types of complaints can result in lengthy and protracted proceedings. Allegations of bad faith bargaining and interference in union representation are generally difficult to address quickly and on the basis of the written record. Unfair labour practice complaints can present complex questions of fact and law and often require presentation of evidence through oral testimony and evaluation of witnesses’ credibility. Although the Board attempts to schedule hearing days in the shortest time possible, scheduling issues involving multiple parties is a challenge, as was the case in the present matter.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-34", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 67", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Second, the Board understands that the union’s membership may have accepted the collective agreement on the basis of representations made during the ratification process that the complaints before the Board would be pursued. The union urges the Board to take into consideration the advice given to the membership and the conditional acceptance of the collective agreement as critical and relevant to the question of whether there is a labour relations purpose to pursue these matters and the remedy sought by the union. In the Board’s view, representations made or advice given in the parties’ respective caucuses during collective bargaining or during the ratification process are not relevant to the Board’s assessment of whether a labour relations purpose would be served by continuing with the complaint. The Board is not about to engage in a review of what was presented to the union’s membership during the ratification process. In any event, the representations that a complaint will continue, whether they influenced the outcome of the vote or not, are not binding on the Board in deciding whether to exercise its discretion to proceed with the complaint.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-35", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 68–69", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Third, the union argues that in order to obtain a meaningful remedy, the members would have had to continue their strike action for a number of months in order to wait for the outcome of these proceedings. It contends that the encouragement of free collective bargaining is not the only policy principle advanced in the Code but that this must be reconciled with the enforcement of other provisions that prohibit unlawful practices during collective bargaining to ensure sound labour relations. The union urges the Board, to continue with the proceedings and to make a determination on the merits of the complaints in order to give it and its members access to justice.\n\nAlthough the union cites the old adage of justice delayed is justice denied, in considering whether a labour relations purpose is served by continuing to inquire into these applications, the Board is careful not to engage in an exercise that would seek to punish or allocate blame on any side. As cited by the employer, the Board is reluctant to issue retroactive orders or declarations where the issue that is central to the application or complaint has become moot. The Board’s general approach in ordering remedies is to make the party affected by a violation of the Code whole and to put the affected party back in the position it would have been had there not been a breach. In deciding whether to issue a retroactive order, the Board will consider its role in promoting the constructive settlement of disputes and the labour relations purpose served by issuing such an order.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-36", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 70–71", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The framework of collective bargaining is one that is carefully crafted to support the parties’ efforts to achieve a freely negotiated collective agreement. Seeking a Balance: Canada Labour Code, Part I, Review (Ottawa: Human Resources Development Canada, 1995) discusses the reasons why free collective bargaining is so fundamental to a stable labour relations regime: ... the parties themselves are the best architects of their situations. Therefore, through statute, we promote voluntarism, encouraging the parties to settle their own collective agreements, giving them full scope to negotiate terms and conditions of employment and allowing them to design their own dispute resolution mechanisms. We give them the opportunity and responsibility to codify their own affairs. We restrict or limit these rights as little as possible. ... Further, they recognize that the most efficient and workable collective bargaining system is one which places the greatest degree of responsibility for their actions on the parties themselves. Therefore, the purpose of labour legislation and reform must be to establish and protect the general framework for collective bargaining to allow the parties to operate. (pages 36 and 40)\n\nThe provisions of the Code as they relate to collective bargaining are designed to promote free collective bargaining and allow the economic “clout” of the respective parties to play out and for the parties to achieve the best result they can with their respective economic leverage. In this dispute, the union and the employer both exercised their economic leverage and ultimately concluded a collective agreement following 11 weeks of strike.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-37", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 72", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board will be prudent not to interfere in the results achieved through this process. Even in the most egregious of cases, the Board and the Courts have been reluctant to impose terms of a collective agreement. For example, in Royal Oak Mines Inc. v. Canada (Labour Relations Board), supra, the majority of the Supreme Court of Canada upheld the Board’s remedy, which directed the employer to make certain offers subject to binding arbitration. It did so in the following terms: ... such an extraordinary order, while justified in these circumstances, runs against the established grain of federal and provincial labour codes by overriding the cherished principle of “free collective bargaining” which animates our labour laws. ... I find that in the absence of exceptional and compelling circumstances such as those prevailing in this case, it will normally be patently unreasonable for a labour board to impose such an invasive remedial order in light of the core value of free collective bargaining enshrined in the Code. (page 379)", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-38", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 73–74", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In the circumstances before us, the union is pursuing a remedy that would see the Board impose a new term in the collective agreement, which was just recently concluded between the parties through the process of free collective bargaining. Although the union recognizes that it is seeking a remedy that may be rarely imposed, it submits that the question for the Board is whether a remedy is still available. However, the Board is of the view that the basis for the remedy sought in this case disappeared when the parties reached a new collective agreement and the return to work protocol. The Board must be cautious not to allow a party to achieve through the Board what it was not able to achieve at the bargaining table. The Board is not prepared to grant an order that would constitute a significant intrusion into the parties’ freely negotiated collective agreement in the absence of exceptional and compelling circumstances.\n\nThe Board understands the complexity of the negotiations and difficult decisions that had to be made by the union on whether to continue with the strike in evaluating its leverage at the bargaining table. However, the Board is unable to accept that there is a labour relations purpose in determining the merits of the complaints as they relate to the conduct during collective bargaining. In the circumstances of this case, where the labour relations landscape has changed and a collective agreement is ratified after 11 weeks of the union’s exercise of their right to strike, the Board’s view is that the proceeding would only result in declarations that would be punitive in nature if it were to determine that there was a violation of the Code.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-39", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 75", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "This result however, should not be interpreted to mean that the Board does not have broad authority to fashion appropriate remedies to make parties whole where circumstances warrant it. The employer forcefully argued that the Board lacks jurisdiction to grant the remedy requested by the union given the fact that a collective agreement has already been concluded. Although this question does not need to be decided in the context of this motion, section 99(2) of the Code affords broad latitude and powers to the Board to create remedies to counteract breaches and fulfill the objectives of the Code.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-40", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 76", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Fourth, the union argues that regardless of the fact that the parties have reached a collective agreement, it is necessary to address the conduct of the employer during collective bargaining in order to ensure that there is no repetition in the next round of bargaining. The circumstances that will surround the next cycle of collective bargaining for this unit are speculative and any future complaint will have to be assessed on its own merits. Nevertheless, the Board is of the view that it is the parties’ responsibility to determine how they want to approach bargaining in the future. The union’s complaint in this case raised a number of concerns regarding the employer’s conduct. The union alleged that the employer attempted to address the ramp employees’ wage issues outside the bargaining table while it insisted that these issues be dealt with during collective bargaining. Shortly after notice to bargain was given, the employer began using more than a hundred agency workers who worked alongside these same ramp employees. While this situation may have contributed to the length of the labour dispute, the parties ultimately found a common ground and achieved a freely negotiated collective agreement. In the Board’s view, pursuing the complaint at this stage may negatively impact the parties’ labour relationship going forward.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-41", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 77–78", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Finally, the Board is also cognizant of the resources that would be required from all sides in bringing these matters to conclusion. As noted in the background above, the Board has already issued three decisions in these matters to deal with an interim application and other preliminary matters. These are in addition to two decisions of the Board addressing applications for declaration of illegal strike filed by the employer at the time when the parties were facing the threat of a full and lawful work stoppage. Suffice it to say that in the course of four months, the Board has dedicated a significant amount of resources to the matters emanating from these parties’ collective bargaining relationship. At the time of hearing this motion, nine witnesses were still scheduled to testify, which would require at least five more days of hearing. Although the question of judicial economy is not determinative, it is important for the Board to allocate its limited resources in a way that is consistent with the objectives of the Code and best support its mandate.\n\nHaving carefully reviewed the arguments and case law presented by the parties, the Board has decided not to inquire further into the union’s complaint relating to the conduct of the employer during collective bargaining as it would serve no labour relations purpose at this time.", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-42", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "para 79", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In LD 3861 the Board specifically noted that the circumstances that formed the basis of the second unfair labour practice complaint emanated from the conduct of the employer during collective bargaining and the timing, manner and effect of the employer’s decision to resort to agency workers. The Board also recognized that the factual basis for the second complaint was similar to, or the same as, the set of facts supporting the first unfair labour practice complaint. In LD 3849 issued to the parties on August 24, 2017, the Board indicated as follows: The complainant asked the Board to consolidate the two complaints, to hear them together but to defer its decision on one of the prongs of the replacement worker complaint until there is clarity on the status of agency workers from the arbitration process. The employer objected to this approach and suggested that the complaints be heard sequentially. It indicates that the evidence and onus applicable to the complaint related to the use of replacement workers is different and its success would necessarily depend on the outcome of the first unfair labour practice complaint. The Board is prepared to proceed to hear the first unfair labour practice complaint (file no. 32141-C) starting on September 26, 2017. In the event that the Board dismisses the preliminary objections and decides to proceed to hear the complaint related to the use of replacement workers (file no. 32232-C), it will hear the two complaints consecutively, pursuant to section 20 of the Canada Industrial Relations Board Regulations, 2012. (page 3)", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-301063-43", - "doc_type": "caselaw", - "act_code": "2017 CIRB 863", - "act_short": "Swissport", - "act_name": "Swissport Canada Handling Inc.", - "section": "", - "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", - "marginal_note": "paras 80–85", - "heading": "Unfair labour practice complaint under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "For the reasons already outlined above, the Board finds that there is no longer a live controversy regarding the conduct of the employer during collective bargaining and the timing, manner and effect of the employer’s decision to resort to agency workers. After a case management meeting with the parties in the two unfair labour practice complaints, the Board decided to hear the second unfair labour practice complaint consecutively to the first one. Given the circumstances of this case, the Board sees no labour relations reason to proceed with the second unfair labour practice complaint, the outcome of which was dependent upon the first unfair labour practice complaint.\n\nDuring the hearing on October 16, 2017, the union requested redacted versions of four Powerpoint presentations prepared by management for presentation to Swissport’s headquarters in Zurich. The employer strongly opposed the production request. The Board reserved its decision in this matter until after it determined whether there was a labour relations purpose to be served by proceeding with the complaint.\n\nGiven the Board’s decision not to proceed with the first complaint, there is no need to deal with the union’s request for production of documents.\n\nFor the reasons outlined above, the Board finds that no labour relations purpose would be served by rendering a decision in these matters and exercises its discretion not to inquire further into the merits of the two unfair labour practice complaints.\n\nAccordingly, the Board closes its files and cancels the hearing dates scheduled on December 6, 19, and 20, 2017.\n\nThis is a unanimous decision of the Board. ____________________ Ginette Brazeau Chairperson ____________________ Richard Brabander Member ____________________ Paul Moist Member", - "current_to": "2017-11-15", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" - }, - { - "id": "cirb-5599-1", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "paras 1–3", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In the context of an unfair labour practice complaint filed by Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Cooney Transport Québec Inc (the Cooney Group of Companies or the employer) against Teamsters Local Union 91 (the union), the union raised allegations that the employer’s legal counsel was in a conflict of interest, and requested that the Canada Industrial Relations Board (the Board) determine whether or not counsel and/or his firm should be permitted to act for the employer in the complaint against the union.\n\nAs this is the first time, to this panel’s knowledge, that the Board has been asked to disqualify legal counsel from representing a party appearing before it, the Board requested that the parties file submissions on two issues: (a) whether the Canada Industrial Relations Board has jurisdiction to decide the question of conflict of interest; and (b) if the Board has such jurisdiction, whether it should be exercised in this case.\n\nBecause the applicant requested an oral hearing of this preliminary issue, it is necessary to point out that section 16.1 of the Code permits the Board to decide any matter without an oral hearing. The Board will normally not hold a hearing unless there are issues of credibility or other important labour relations purposes that require it to hear the parties in person. There is no requirement for the Board to give notice to the parties of its intention not to hold a hearing (see Nav Canada, 2000 CIRB LD 213, affirmed in NAV Canada v. International Brotherhood of Electrical Workers, Local 2228 (2001), 267 N.R. 125 (F.C.A., no. A-320-00). The Board is satisfied that the submissions of the parties on this preliminary issue are sufficient for the Board to decide the matter without the need for an oral hearing.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-2", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "paras 4–5", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "A bottom line decision, Cooney Transport Ltd., 2008 CIRB LD 1837, was issued on May 14, 2008, in which the Board held that it did have jurisdiction to decide questions of conflict of interest, but that it would not disqualify the employer’s counsel or its law firm, Mann & Partners LLP, from acting for the employer in the underlying unfair labour practice complaint. These are the reasons for that decision.\n\nBoth of the parties to this preliminary issue were of the opinion that the Board has jurisdiction to consider and decide the issue. Nevertheless, the Board is of the view that it is prudent to canvass the jurisprudence to satisfy itself that it does have the necessary jurisdiction to hear and determine allegations of conflict of interest on the part of counsel appearing before it.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-3", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "para 6", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Although it is not a frequent occurrence, several other Canadian labour relations boards have had occasion to consider whether they have jurisdiction to decide questions of conflict of interest on the part of counsel. In Non-Construction Affiliated Trade Unions, [2001] BCLRB No. B228/2001, the British Columbia Labour Relations Board (BCLRB) stated at paragraph 33 that it is not, nor should it be, the arbiter of legal ethics. Nevertheless, the BCLRB went on to say: ... Assuming we have jurisdiction, while there may be occasions when the Board’s desire to ensure a fair hearing may lead it in compelling circumstances to act to prevent a real mischief, we are not satisfied that the present case calls for its intervention. We are mindful of the comments of Esson, C.J.S.C. in Manville Canada Inc., supra [(1992), 88 D.L.R. (4th) 208 (BCSC)]: “Until very recently, applications to remove lawyers were so rare an event that, at least in this jurisdiction, few judges or lawyers seemed to be more than vaguely aware that such a remedy existed. Nor, so far as I am aware, was there any general feeling of discontent on the part of the public arising from the possibility of conflict. But there was and is a rising tide of discontent with the length, complexity and cost of proceedings. Since MacDonald Estate v. Martin, the application to disqualify has become a growth area as it began to do 20 or so years ago in the United States where it seems to have reached the stage of being a common feature of major litigation. No doubt some of those applications are brought to prevent a risk of real mischief.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-4", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "paras 6–7", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "But can there be any doubt that many are brought simply because an application to disqualify has become a weapon which can be used, amongst many others to discomfit the opposite party by adding to the length, cost and agony of litigation. If that becomes a regular feature of our litigation it would not likely do much to improve the professions standards in an area in which there seems to have been few serious problems. But it could do much to reduce the courts ability to get to judgment in a timely way. (at p. 224)” (page 8)\n\nIn Re Federation of the Assn. des professionnelles et des professionnels de la vidéo du Québec, [2001] C.A.P.P.R.T.D. No. 3 (QL), the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT or the Tribunal) determined that it had jurisdiction to consider an application to disqualify a party’s representative for conflict of interest, on the basis of a provision in its constituting statute, the Status of the Artist Act (SAA), which provides that “anyone appearing before the Tribunal may be represented by counsel or an agent.” (SAA, section 19(3)). The Tribunal also suggested that it had an unspecified ancillary jurisdiction to make a declaration of disqualification.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-5", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "para 8", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Until 2004, the Ontario Labour Relations Board (OLRB) consistently held that it did not have jurisdiction to remove counsel for conflict of interest: see Anna Wilson, [1990] OLRB Rep. April 481; My Cousin’s Restaurant, [1994] OLRB Rep. November 1572; 150960 Canada Inc. Const., [2002] O.L.R.D. No. 777 (QL); and Adam’s Industrial Insulations Ltd., [2003] O.L.R.D. No. 32 (QL). The view expressed in the OLRB’s decisions was that labour boards were not responsible for the enforcement of the rules of professional conduct. As administrative tribunals, labour relations boards do not have the inherent jurisdiction of the courts, and the powers that they exercise must be rooted in a statutory authority. In the OLRB’s view, it did not have the type of supervisory jurisdiction over lawyers that courts have.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-6", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "para 9", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "However, in a 2004 decision, the Ontario Superior Court of Justice held that the OLRB had erred when it concluded that it did not have jurisdiction to decide whether a solicitor had a conflict of interest. In Universal Workers’ Union, Labourers’ International Union of North America, Local 183 v. Laborers’ International Union of North America, [2004] 70 O.R. (3d) 435, Nordheimer J. stated: [19] Regarding whether a lawyer or law firm is the subject of a disqualifying conflict which ought to prevent that lawyer or law firm from appearing on a matter, the more relevant provisions in the Statutory Powers Procedure Act are ss. 23(1) and 25.0.1. Section 23(1) states: “23(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” Section 25.0.1 states: “25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose, (a) make orders with respect to the procedures and practices that apply in any particular proceeding; and (b) establish rules under section 25.1” [20] In my view, these sections, either individually or collectively, give the Board authority to determine whether a lawyer or law firm representing any party is or is not in a conflict of interest and, in the former case, then allows the Board to make the appropriate order disqualifying that lawyer or law firm. In Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481, 194 D.L.R. (4th) 648 (C.A.), Mr. Justice Goudge said, at para.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-7", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "para 9", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "55: “The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.” [21] Similarly, a tribunal has the right to prevent the abuse of its processes by virtue of s. 23(1). Permitting a lawyer or law firm to appear for a party when that lawyer or law firm is in a position of conflict of interest regarding another party is, in my view, clearly a misuse of the tribunal’s procedure and one that would be manifestly unfair to the objecting party. [22] Alternatively, it is a matter that the tribunal [can] properly address under its power to determine its own procedures and practices and to ensure compliance with them. I find support for this latter conclusion in the decision of Wilder v. Ontario Securities Commission (2000), 47 O.R. (3d) 361, 184 D.L.R. (4th) 165 (Div. Ct.) where it was argued that the Ontario Securities Commission could not take certain actions against a lawyer because it violated the Law Society of Upper Canada’s exclusive jurisdiction to regulate the professional conduct of lawyers. In rejecting that contention, Madam Justice Swinton said, at para. 20: “In proceedings such as these, the Commission is not usurping the role of the Law Society, as its objective is not to discipline the lawyer for professional misconduct; rather, its concern is to remedy a breach of its own Act which violates the public interest in fair and efficient capital markets, and to control its own processes.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-8", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "para 9", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "(Emphasis added)” [23] There is another reason for reaching the conclusion that specialized tribunals, such as the Ontario Labour Relations Board, have such authority. Fundamental to the decision as to whether a lawyer is or is not in a position of conflict is whether information in the possession of that lawyer might be used to the detriment of the objecting party. As Mr. Justice Sopinka said in MacDonald Estate v. Martin, supra, at p. 1260 S.C.R.: “Typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?” [24] The Board is in a much better position, with its specialized knowledge and expertise, to know whether the lawyer or law firm is in possession of confidential information, whether the confidential information is relevant to the issues that the Board has to determine and whether that confidential information could be used to the detriment of the objecting party. It makes more sense for the tribunal, who must make the ultimate determination of the issues on the hearing before it, to decide whether any conflict alleged against the lawyer is real or only apparent, based on the usual practices of the lawyers and law firms who appear before it. For example, in this case the Board might conclude that whatever information the lawyer and law firm either did or might have become possessed of as a consequence of acting for the objecting party in the certification hearing could not possibly prejudice the objecting party in respect of the current unfair labour practices hearing.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-9", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "paras 9–12", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The Board is in a much better position to determine whether that is the reality of the situation than the court would be. (pages 442–443)\n\nUnlike the CAPPRT, the Board does not have a statutory provision similar to section 19(3) of the SAA, which sets out who can appear before the Tribunal. Neither does this Board have recourse to a statute similar to the Ontario Statutory Powers Procedure Act, which expressly authorizes the tribunals to which it applies to make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.\n\nAlthough it is often said that the Board is the master of its own procedure, that discretion is not totally unfettered. Any exercise of the powers that the Board may have to establish its own practices and procedures must respect the principles of natural justice and administrative fairness (Robert Adams, 2001 CIRB 121, at paragraph 29).\n\nSection 16 of the Code sets out the powers of the Board in relation to proceedings before it. In particular, section 16(p) of the Code provides the Board with the power to decide, for all purposes of Part I, any question that may arise in the proceeding. Furthermore, section 21 of the Code directs the Board, inter alia, to exercise such powers as may be incidental to the attainment of the objects of Part I. In the opinion of the Board, these two provisions, individually and collectively, provide it with the requisite jurisdiction to determine questions regarding alleged conflict of interest on the part of legal counsel appearing in a proceeding before it.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-10", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "paras 13–14", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "In this regard, the Board adopts the reasoning of the Ontario Superior Court of Justice in Universal Workers’ Union, Labourers’ International Union of North America, Local 183 v. Laborers’ International Union of North America, supra, citing Wilder v. Ontario (Securities Commission) (2001), 184 D.L.R. (4th) (Ont. Div. Ct.) 165. As suggested in that decision, the Board’s objective is not to discipline counsel for any professional misconduct, but rather to control its own processes and to prevent abuse of those processes. On a practical level, the Board accepts that, because of its specialized knowledge and expertise, it is in the best position to determine whether a specific lawyer or law firm is in possession of confidential information, whether that information is relevant to the issues before the Board and whether it could be used to the detriment of the objecting party.\n\nHowever, the Board cautions parties appearing before it that it will judiciously exercise this jurisdiction, so as not to attract a multiplicity of frivolous allegations of conflict of interest that will only serve to delay and defeat the Board’s objective of resolving workplace disputes and differences expeditiously. Only in compelling circumstances, on concrete evidence and not speculative allegations, where it is shown to be necessary to ensure a fair hearing and prevent real harm to the interests of a party, will the Board exercise its jurisdiction to disqualify counsel for conflict of interest.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-11", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "paras 15–16", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "On March 4, 2008, Mr. Andrew Lister of Mann & Partners LLP, filed an unfair labour practice complaint against the union on behalf of his client, the Cooney Group of Companies, who collectively are the employers of the bargaining unit members affected by this application. Current counsel for the union, from Brazeau Seller LLP notified the Board that Mr. Lister and his firm had previously acted for the union, and in fact had advised the union with respect to labour relations disputes and collective agreement issues between the union and the employer that Mr. Lister was now representing. It was union counsel’s position that, by virtue of Mr. Lister’s present and previous relationship with the union, it would be a clear conflict of interest if he were permitted to act for the employer in the matter that was before the Board (i.e., the unfair labour practice complaint against the union).\n\nCounsel for the union also alleged that Mr. Lister’s conduct was a breach of The Law Society of Upper Canada’s Rules of Professional Conduct. While the Board has no jurisdiction to hear and decide such allegations, the content of a governing body’s rules of professional conduct can, in an appropriate case, constitute a guide to the behaviour expected of members of the profession. In this case, however, it was not necessary for the Board to consider the Rules of Professional Conduct as it has been able to determine the matter based on its own analysis.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-12", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "para 17", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "The employer denied that there was a conflict of interest on Mr. Lister’s part, and the Board sought submissions from both parties. The union continued to contend that because of Mr. Lister’s previous relationship with the union, it would be a clear conflict of interest if he were permitted to act for the employer in the unfair labour practice complaint. In support of its position, the union provided the following information and allegations: (1) Mr. Lister is a lawyer and a member of the Law Society of Upper Canada. (2) Mr. Lister was employed at Brazeau Seller LLP from 1998 to 2003, practicing predominantly labour and employment law. (3) During that period of time, Mr. Lister acted for the union extensively; for a good portion of his tenure at Brazeau Seller LLP, Mr. Lister was the union’s principal counsel. (4) As counsel to the union, Mr. Lister was involved in advising on all manner of labour relations issues, including collective bargaining, collective agreement interpretation, grievance arbitrations and Board proceedings. (5) Through his previous retainer with the union, Mr. Lister worked closely with its business agents and officers. His work included preparing them for giving evidence, withstanding cross-examination, etc. Among the business agents with whom Mr. Lister worked closely was Mr. Mike Lalonde, the current Secretary Treasurer of the union and a member of the union’s bargaining team during the collective agreement negotiations at issue in the unfair labour practice complaint. (6) Mr. Lister acted for the union on matters involving the employer, the employees of which were and still are represented by the union. (7) Mr.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-13", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "para 17", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Lister’s advice to the union with respect to the employer included advice regarding the interpretation and application of the collective agreement that was the predecessor agreement and substantially similar to the current collective agreement, the negotiation of which is the subject of the unfair labour practice complaint. (8) Mr. Lister was also involved in a number of grievances and arbitrations between the union and the employer relating to the interpretation and application of the collective agreement. Some of these cases also involved questions relating to bargaining between the union and the employer and the past practice between the two parties. (9) Mr. Lister left Brazeau Seller LLP in late 2003 to join Mann & Partners LLP. (10) Mr. Lister took with him various union files and he continued to act as counsel to the union while at Mann & Partners LLP. (11) While Mr. Lister acted for the union, the union’s president was Mr. André Papineau. (12) Mr. Papineau’s term as president of the union ended December 31, 2005, when a newly elected president, Mr. Brian MacDonald, took office. (13) Since leaving the union, Mr. Papineau has been employed as a labour relations consultant to employers, and he was retained by this employer to, in part, conduct negotiations for a renewal collective agreement with the union. (14) The employer, through Mr. Papineau, retained Mr. Lister to act as counsel in this unfair labour practice complaint. (15) The union does not consent to Mr. Lister’s continuing to act in this matter.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-14", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "para 18", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Mr. Lister denies having any confidential information within his knowledge or possession that could prejudice the union. He provided the following information: (1) He did represent the union while he was employed with Brazeau Seller LLP. (2) He left Brazeau Seller LLP in October 2003. (3) He took four ongoing files involving the union with him to Mann & Partners LLP, so that he could conclude them. His role as counsel on these files ended on January 22, 2004, January 30, 2004, May 19, 2004 and December 22, 2004 respectively and reporting letters on each matter were sent to the union. (4) Each of the four files concerned discrete matters unrelated and irrelevant to the employer’s unfair labour practice complaint against the union. (5) The matter on which he acted for the union against the employer occurred approximately eight years ago. (6) Other than the four files described above, his role as counsel for the union ended when he left Brazeau Seller LLP in October 2003. (7) His previous retainer involved a completely different union Executive Board. (8) There is no present relationship between Mr. Lister and the union in a solicitor-client capacity. (9) The unfair labour practice complaint against the union that is now before the Board arises from a ratification vote that occurred on August 2, 2007. It is a fresh and independent matter, wholly unrelated to any work that he previously did for the union.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-15", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "paras 19–20", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "According to the test set out by the Supreme Court of Canada in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, the Board must answer two questions in order to determine whether counsel should be disqualified from acting for a client on the basis of conflict of interest: 1. Did the lawyer receive confidential information attributable to a solicitor-client relationship relevant to the matter at hand? 2. Is there a risk that the confidential information will be used to the prejudice of the client?\n\nApplying this test to the facts of this situation, the Board has concluded that Mr. Lister is not in a conflict of interest with respect to the unfair labour practice complaint filed by the employer against the union. The complaint deals with a discrete set of events flowing from collective agreement negotiations that took place between the union and the employer in July and August 2007. Mr. Lister was not involved in those negotiations. His last retainer on behalf of the union with respect to this employer ended approximately eight years ago. His last retainer on behalf of the union with respect to any of its matters ended more than three years before the date on which he filed the employer’s unfair labour practice complaint. The events and allegations before the Board regarding the 2007 negotiations and subsequent ratification vote have no relation to any work that Mr. Lister did for the union during his retainer.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-16", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "paras 21–23", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "Furthermore, the union has not provided specifics or identified the nature of any confidential information that Mr. Lister actually has or could have in his knowledge or possession that could even remotely be attributable to the solicitor-client relationship, let alone any that would be relevant to an unfair labour practice complaint concerning the 2007 negotiations and the union ratification vote.\n\nThe union’s allegation that, by virtue of his previous acquaintance and work with the union’s current Secretary Treasurer and negotiator, Mike Lalonde, Mr. Lister has knowledge of the union’s affairs that could be used to the latter’s detriment also has no merit under these circumstances. The union did not suggest that Mr. Lalonde has provided any confidential information to Mr. Lister regarding the events that are in issue in the present unfair labour practice complaint, let alone any that might flow from a solicitor-client relationship between Messrs. Lister and Lalonde in his capacity as a union representative. In addition, any knowledge that might flow from such an acquaintanceship could equally be attributed to the former union president, Mr. Papineau, a non-lawyer who is now providing consulting services to the employer.\n\nThe Board has concluded that the union has provided no evidence that Mr. Lister has confidential information regarding his former client; if he has such information, there is no evidence that it is attributable to the solicitor-client relationship; and if he has any confidential information attributable to the solicitor-client relationship, there is no evidence that it is relevant to the matter that is presently before the Board. Accordingly, there is no need for the Board to apply the second branch of the MacDonald Estate v. Martin, supra, test.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "cirb-5599-17", - "doc_type": "caselaw", - "act_code": "2008 CIRB 411", - "act_short": "Cooney Transport", - "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", - "section": "", - "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", - "marginal_note": "paras 24–25", - "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", - "part": "Canada Industrial Relations Board", - "division": "", - "text": "As the union has failed to make out a case to support its allegation of conflict of interest, the Board has determined that it will not disqualify Mr. Lister or his firm, Mann & Partners LLP, from acting for the employer in the unfair labour practice complaint.\n\nThe application with respect to this preliminary issue is dismissed.", - "current_to": "2008-05-29", - "last_amended": "", - "history": "", - "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" - }, - { - "id": "irb-MB8-00025-1", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 1–2", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "This decision addresses whether the Refugee Protection Division (RPD) erred in finding that XXXX XXXX XXXX is excluded from refugee protection by the combined effect of Section E of Article 1 (“Article 1E”) of the United Nations Convention Relating to the Status of Refugees (“Convention”) and s. 98 of the Immigration and Refugee Protection Act (IRPA). It also addresses the more general issue of whether the RPD and the RAD must take into account any risk raised by a claimant in respect of their country of residence prior to excluding them from refugee protection under Article 1E.\n\nAs I describe below, there currently exist two lines of case law on the interpretation of Article 1E in cases such as the present where, at the date of the RPD hearing, a claimant continued to hold a status in their country of residence that conferred on them substantially the same rights and obligations as nationals. After the judicial review decision in this case, two Justices of the Federal Court developed an interpretation of Article 1E and relevant IRPA provisions that differs from the approach that has consistently been followed by the RPD, the RAD, and the Federal Court in other decisions. Under this new approach, the RPD and the RAD would not have the power to take into account any risk raised by a claimant/appellant in respect of their country of residence in cases such as the present.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-2", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 3–5", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In the sections that follow, I detail my reasons for preferring the approach that traditionally has been followed by the RPD, the RAD, and the Federal Court. This approach accepts that the RPD and the RAD must assess whether the claimant’s country of residence offers a form of safe surrogate protection for them before finding that they are excluded from protection on the basis of their status in that country. In other words, the RPD and the RAD must take into account and assess the risk raised by claimants in respect of their country of residence prior to finding that they are excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA.\n\nThe traditional framework of analysis which I support in this decision involves asking the following questions:\n\nApplying this approach to the circumstances of this case, I find that the RPD correctly concluded that Mr. XXXX is excluded from refugee protection by the combined effect of Article 1E and s. 98 of the IRPA. The RPD was correct to take into account the risk raised by Mr. XXXX in respect of Brazil. However, the RPD erred in taking this risk into account after it had already found that Mr. XXXX was excluded under Article 1E rather than as part of its Article 1E analysis. Despite this error in the sequence of its analysis, the RPD correctly concluded that Mr. XXXX does not face a serious possibility of persecution or a likelihood that he would be subjected to danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment in Brazil. Therefore, the RPD correctly concluded that he is excluded from refugee protection.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-3", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 6–7", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Mr. XXXX is a citizen of Haiti. He fears that, if he returns to Haiti, he will be killed or seriously harmed by a criminal group that beat him and threatened him with death in 2011. Mr. XXXX left Haiti for the Dominican Republic and then made his way to Brazil in XXXX 2011, where he acquired permanent resident status. The situation for Haitians in Brazil became less secure starting in 2014. Mr. XXXX alleged that many Haitians were assassinated in Brazil and that Brazilian citizens accused Haitians of stealing their jobs. Mr. XXXX was hit by a car one day when he was riding his bicycle. He also could not find work during the latter part of his stay in Brazil and he often had insults directed at him by Brazilian citizens. Mr. XXXX left Brazil for the United States in XXXX 2016 but fled to Canada because he feared deportation from that country. He claimed refugee protection in Canada in August 2017.\n\nThe RPD found that, as a permanent resident of Brazil, Mr. XXXX had access to substantially the same rights and obligations as Brazilian nationals. As a result, the RPD found that he was a person referred to in Article 1E of the Convention. The RPD then went on to consider the risks that Mr. XXXX raised in respect of Brazil. Due to a contradiction and an omission in his evidence, the RPD found that Mr. XXXX had not met his onus of credibly establishing that he would face a serious possibility of persecution on a Convention ground in Brazil or a likelihood that he would be subjected personally to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-4", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 8–9", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Mr. XXXX appealed the RPD’s decision to the RAD. The RAD denied his appeal and confirmed the RPD’s conclusion that he was excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. The Federal Court allowed Mr. XXXX application for judicial review because it found the RAD’s analysis unintelligible and inconsistent with the language of section 98 of the IRPA.Footnote 2 Specifically, in the Justice’s view, the RAD examined the fear that Mr. XXXX raised in respect of Brazil after already finding that he was excluded from protection by the combined effect of Article 1E of the Convention and s. 98 of the IRPA.Footnote 3 The Justice questioned the basis for the RAD’s evaluation of the risk that Mr. XXXX had alleged in Brazil once it had already found him to be excluded from protection under the Convention. The Justice set aside the RAD’s decision and referred the matter back to the RAD for redetermination.\n\nMr. XXXX tendered the following two documents as proposed new evidence after he submitted his appeal record: (1) a statement sworn on March 16, 2018, in which he described the contents of WhatsApp messages he received on XXXX XXXX–XXXX XXXX 2018; and (2) an extract of minutes from a XXXX XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2011.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-5", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "para 10", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "I find that the statement should be admitted as new evidence based on a weighing of the factors set out in Rule 29(4) of the RAD Rules and because it meets the other conditions for the admissibility of new evidence set out in s. 110(4) of the IRPA and applicable case law.Footnote 4 The statement describes WhatsApp messages that Mr. XXXX allegedly received after he filed his appeal record. The sender demanded that Mr. XXXX send him money or else his life would be in danger if he returned to Haiti. The WhatsApp messages described in the statement post-date the filing of the appeal memorandum. The statement would have relevance and probative value relating to Mr. XXXX claim against Haiti and it brings new evidence regarding Mr. XXXX claim against Haiti. The statement also meets the conditions set out in ss. 110(4) of the IRPA and applicable case law. It post-dates the RPD decision in this case. As such, it would not have been available to Mr. XXXX to present to the RPD and, therefore, he could not reasonably have been expected to present it to the RPD. The statement also meets the conditions set out in the applicable case law. While the timing of the messages does seem remarkably fortuitous, I am prepared to find that there is no basis to find them not credible at this stage. The statement is relevant to Mr. XXXX claim against Haiti and the information in it is new. Based on all of the above, I find the statement admissible. However, ultimately, it does not affect the result in this case because the RPD was correct to conclude that Mr. XXXX is excluded from refugee protection. Therefore, it is unnecessary to conduct an assessment of the risk that Mr. XXXX alleged in relation to Haiti.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-6", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 11–14", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The extract of the minutes from the Justice of the Peace Tribunal submitted by Mr. XXXX is not admissible as new evidence. Even if I were to find that the extract met the conditions for the late submission of evidence set out in Rule 29(4) of the RAD Rules, it does not meet the conditions for admissibility of new evidence contained in ss. 110(4) of the IRPA. Specifically, the extract predates the RPD’s decision and there is no evidence that it was not reasonably available to Mr. XXXX at the time of the RPD’s decision. Therefore, Mr. XXXX can reasonably have been expected to present the extract to the RPD before it rendered its decision.\n\nFor these reasons, Mr. XXXX request to admit his statement as new evidence is granted but his request to admit the Justice of the Peace extract is denied.\n\nMr. XXXX request for an oral hearing is denied as the statement that I have admitted as new evidence does not meet these conditions for the holding of an oral hearing found in s. 110(6) of the IRPA. In particular, the determinative issue in this case centers on whether Mr. XXXX is excluded from protection due to his permanent resident status in Brazil. Therefore, even if accepted, the statement would not justify allowing or rejecting his claim since it relates solely to his risk in Haiti.\n\nThis case raises the following three issues: (1) what is the appropriate date for the evaluation of Mr. XXXX permanent resident status in Brazil?; (2) are the RPD and the RAD required to take into account the risk raised by a claimant in respect of their country of residence before excluding them from refugee protection in cases such as the present?; and (3) if the answer to question (2) is affirmative, did the RPD err in its assessment of the risk Mr. XXXX raised in respect of Brazil?", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-7", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 15–17", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "An issue that arises in this case is the date on which the RAD must assess Mr. XXXX permanent resident status in Brazil. Mr. XXXX counsel argues that, although Mr. XXXX had permanent resident status in Brazil at the time of the RPD hearing in November 2017, he likely lost this status in XXXX 2018 because he had been outside of Brazil for two years by that time.\n\nThe RAD and the Federal Court have consistently followed the Court of Appeal’s determination in Majebi that the relevant date for the RAD’s evaluation of an appellant’s status in a country of residence for the purpose of Article 1E is the date of the RPD hearing.Footnote 5 In this case, this means that I must consider whether Mr. XXXX had permanent resident status on the date of the RPD hearing in 2017 rather than considering whether he has permanent resident status in Brazil as of the date of this appeal.\n\nThis approach has recently been questioned by a Justice of the Federal Court in Abel.Footnote 6 Despite certifying a question to the Court of Appeal on the issue, the Justice in Abel found that the Court of Appeal decision in Majebi is clear and it is binding on the Federal Court and the RAD. Therefore, the date that the RAD must use to evaluate the permanent resident status of an appellant is the date of the RPD hearing. Unless or until the Federal Court of Appeal clarifies or alters the decision in Majebi regarding the appropriate date for the evaluation of an appellant’s status, the RAD is bound by that decision. This finding is sufficient to dispose of Mr. XXXX argument with respect to his loss of permanent resident status in Brazil following the RPD hearing.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-8", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 18–19", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "That said, I will note that I share the same concerns that were expressed by the Justice in Abel. In Majebi, the Federal Court of Appeal based its decision on the fact that an appeal before the RAD is not a true de novo proceeding and the RAD’s role is to intervene when the RPD’s decision is wrong.Footnote 7 Based on this, the Court of Appeal reasoned that the RAD is required to consider an appellant’s status on the same day used by the RPD or else it would be deciding a different question than the one addressed by the RPD.Footnote 8\n\nEven if a RAD appeal is not a de novo proceeding, the RAD does regularly admit new evidence of changed circumstances if the evidence satisfies the admissibility requirements set out in the IRPA and applicable case law.Footnote 9 The RAD may also consider new issues, such as new sur place claims, that arise from new evidence admitted on appeal. It does not appear that any argument based on the RAD’s power to admit new evidence was made to the Court of Appeal in Majebi.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-9", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 20–21", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "It does seem difficult to justify that the RAD must simply ignore or not take into account evidence that the appellant has lost the status that gave rise to their exclusion under Article 1E by the time of their appeal before the RAD. For example, in this case, it seems difficult to justify that I would have to simply ignore the fact that Mr. XXXX lost his permanent resident status in Brazil over two years ago. If the RAD did have the power to consider this evidence and it was satisfied that the claimant lost the status that led the RPD to find them excluded from protection, it would not necessarily lead to rejection of the RPD’s exclusion finding. Instead, the RAD would have to carry out the analysis set out by the Court of Appeal in Zeng which applies when a claimant previously had, but subsequently lost, status in their country of residence.Footnote 10\n\nDespite the above obiter comments, the reality remains that the RAD is bound by the Federal Court of Appeal’s decision in Majebi as to the appropriate date for the evaluation of an appellant’s status in their country of residence. Therefore, I find that the appropriate date for the evaluation of Mr. XXXX status in this case is the date of the RPD hearing. It was not disputed that Mr. XXXX had permanent resident status in Brazil on that date and that this status conferred on him substantially all of the rights and obligations of Brazilian nationals.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-10", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 22–23", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The second issue that arises in this case is whether the RPD and the RAD must take into account the risk raised by a claimant in respect of their country of residence before excluding them from protection by the combined effect of Article 1E and s. 98 of the IRPA in cases such as the present. As I detail below, there are two currents of opinion at the Federal Court on this issue. Having reviewed both lines of Federal Court case law, I prefer the traditional approach which requires the RPD and the RAD to take into account the risk raised by a claimant prior to finding that they are excluded from refugee protection.\n\nI note that the following analysis applies only to cases such as the present in which, at the time of the RPD hearing, the claimant continued to hold a status in their country of residence that conferred on them substantially the same rights and obligations as nationals in that country. When I refer to “cases such as the present” in this decision, it is to these types of cases that I am referring.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-11", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "para 24", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Until relatively recently, the Federal Court, the RAD, and the RPD had consistently accepted, albeit without any detailed analysis, that in cases such as the present the RPD and the RAD must assess whether the claimant’s country of residence offers safe surrogate protection for them before finding that they are excluded from protection due to their status in that country. In other words, the Federal Court, the RAD, and the RPD accepted that the RPD and the RAD are required take into account the risk raised by a claimant in respect of their country of residence before finding that they are excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA.Footnote 11 Admittedly, the RPD and the RAD have not always been consistent as to whether they have analyzed the claimant’s risk before making a finding on the exclusion issue or after making such a finding. However, the RPD and the RAD have consistently taken into account the risk raised by claimants in respect of their country of residence as part of the overall Article 1E analysis.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-12", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 25–26", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Federal Court Justice who rendered the judicial review decision in this case raised questions about the power of the RPD and RAD to consider the risk raised by a claimant in respect of their country of residence after they had found the claimant excluded from refugee protection. In a subsequent case, Saint Paul,Footnote 12 she agreed with another Justice of the Federal Court who, in Célestin,Footnote 13 went further to hold that the RPD and the RAD must not take into account the risk raised by a claimant in respect of their country of residence as part of their analysis of whether the claimant is excluded from refugee protection in cases such as the present. Similar questions also had been raised by the Justice in a third case, Constant.Footnote 14\n\nAccording to the Célestin/Saint Paul approach, the only factor for the RPD and RAD to consider in cases such as the present is whether the claimant held a status in their country of residence that conferred on them substantially the same rights and benefits as nationals of that country. If so, the RPD and the RAD must exclude the claimant from protection without taking into account any risk they have raised in respect of their country of residence. Under theCélestin/Saint Paul approach, the analysis of a claimant’s risk in respect of their country of residence must occur solely at the Pre-Removal Risk Assessment (PRRA) stage.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-13", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 27–30", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In decisions rendered subsequent to Célestin, Saint Paul, and Constant, some Justices of the Federal Court have continued to implicitly accept that it is reasonable for the RAD and RPD to take into account the risk alleged by a claimant in respect of their country of residence before excluding them from refugee protection.Footnote 15 Other Justices have explicitly declined to address the Célestin and Saint Paul decisions on the basis that these decisions had no impact on the conclusion in the case before them.Footnote 16 The Justices in two cases found that, even if the RAD may not be required to take into account the risk raised by a claimant in their country of residence, it is not unreasonable to do so.Footnote 17 Lastly, in a recent case, a Justice has expressly disagreed with the approach taken in Célestin and Saint Paul to find that the RAD is required to take into account any risk raised by the claimant in respect of their country of residence before finding them excluded from protection.Footnote 18\n\nIn the sections that follow, I explain why I prefer the approach that has been consistently followed by the Federal Court, the RAD, and the RPD except by the Justices who decided Célestin, Saint Paul and Constant. In my view, this approach is consistent with a purposive interpretation of Article 1E which Parliament implemented into Canadian law by way of s. 98 of the IRPA. It is also consistent with the approach recommended by the United Nations High Commissioner for Refugees (UNHCR) as well as respected scholars in the field of international refugee law.\n\nArticle 1E provides:\n\nSection 98 of the IRPA provides:", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-14", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 31–32", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Supreme Court and the Federal Court of Appeal have both found that s. 98 incorporates Articles 1E and 1F into Canadian law.Footnote 19This incorporation means that Parliament accepts the international obligations flowing from Article 1E of the Convention. Therefore, decision-makers must adopt an interpretation of Article 1E that is consistent with Canada’s obligations under that provision and the Convention in general.Footnote 20\n\nThe Supreme Court has made clear that the interpretation of an international treaty that has been directly incorporated into Canadian law is governed by Article 31 and 32 of the Vienna Convention on the Law of Treaties.Footnote 21 Article 31(1) of the Vienna Convention provides that treaty provisions must be interpreted by having regard to the following factors: (1) the ordinary meaning of the terms of the treaty; (2) their context; and (3) the object and purpose of the treaty and the provision at issue. Decision makers may have recourse to supplementary means of interpretation, including the preparatory work of the treaty (Travaux Préparatoires), in order to confirm an interpretation arrived at under Article 31. Alternatively, a decision maker may use supplementary means of interpretation to determine the meaning of a provision when the application of the Article 31 interpretative factors leaves them with an ambiguous result, or leads to a result that is manifestly absurd or unreasonable.Footnote 22", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-15", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 33–35", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The point of departure for interpreting Article 1E is to examine the plain meaning of the text of the provision. The ordinary meaning of the words used in Article 1E is that the Convention does not apply to persons who have been accorded, by competent authorities of their country of residence, a status which permits them to enjoy the same rights and obligations as persons who are in possession of nationality in that country.\n\nThe Article does not expressly refer to any consideration of whether the country of residence provides safe surrogate protection for the claimant. It could be argued that a consideration of whether a claimant enjoys substantially the same rights and obligations as nationals in their country of residence requires considering whether that country provides them with protection against persecution and serious harm. According to this approach, a person whose country of residence does not provide them with protection against persecution and serious harm in that country cannot be said to enjoy substantially the same rights and obligations as nationals of the country.\n\nThe RPD and the RAD have not tended to follow this approach as, instead, they have applied the factors set out in the ShamlouFootnote 23 decision to determine whether a claimant enjoys the same rights and obligations as nationals of their country of residence. The RPD and the RAD have considered the risk raised by claimants in respect of their country of residence as a separate step of the Article 1E analysis. While such a separate step is not specifically called for by the ordinary meaning of the words used in Article 1E, it is consistent with the context and purposes of the provision.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-16", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 36–37", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Article 1E is an exclusion clause. The exclusion clauses in Article 1E and 1F apply to persons who either do not need protection (Article 1E)Footnote 24 or do not deserve it (Article 1F).Footnote 25 The consequences of finding that a claimant is a person referred to in Article 1E or Article 1F is that they are excluded from refugee protection. These consequences are serious. It means that the claimant is excluded from protection without any consideration of whether they are at risk of persecution or otherwise in need of protection in relation to their country of nationality. This context would militate in favour of an assessment of whether a claimant does in fact enjoy a form of safe surrogate protection in their country of residence before finding them excluded from refugee protection based on their status in that country.\n\nUnderlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination.Footnote 26 The objectives of the Convention include the international community’s “profound concern for refugees” and its commitment “to assure refugees the widest possible exercise of… fundamental rights and freedoms.”Footnote 27 These humanitarian objectives are echoed in the objectives section of the IRPA.Footnote 28", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-17", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 38–39", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In Zeng, the Federal Court of Appeal found that the purpose of Article 1E is to “preclude the conferral of refugee protection if an individual has surrogate protection in a country where the individual enjoys substantially the same rights and obligations as nationals of that country.”Footnote 29 According to the Court of Appeal, the purpose of Article 1E is to exclude from refugee protection persons who do not need protection because they have a form of surrogate protection, in another “safe” country.Footnote 30 This purpose appears to have been expressly accepted in Célestin and Constant.Footnote 31\n\nThe exclusion of individuals from refugee protection without any consideration of the risk they raised in respect of their country of residence is inconsistent with, and contrary to, the purposes of Article 1E and Canada’s international legal obligations under the Convention. Concretely, the application of the Célestin/Saint Paul approach in this case would mean that the RPD would have been required to find that Mr. XXXX was excluded from refugee protection for the sole reason that he had permanent resident status in Brazil at the time of the RPD hearing. By finding Mr. XXXX excluded from refugee protection under Article 1E, the RPD would implicitly be finding that Mr. XXXX did not require protection because he had a form of surrogate protection in Brazil without assessing whether this was in fact the case in the sense of Brazil being a safe country for him.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-18", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 40–41", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "As described above, the purpose of Article 1E is to exclude from protection individuals who do not require protection because they enjoy a form of surrogate protection in another safe country where they enjoy substantially the same rights and obligation as nationals of that country. People who face persecution or serious harm in their country of residence cannot be said to enjoy surrogate protection in that country. That country cannot be said to be “safe” for them such that they do not need international refugee protection. Therefore, the object and purposes of the Convention and Article 1E require decision makers like the RPD and the RAD to consider any risk raised by a claimant in their country of residence before excluding them from refugee protection under Article 1E of the Convention.\n\nIn my view, it is inconsistent with the purposes of Article 1E of the Convention to restrict to the PRRA stage any consideration of the risk raised by a claimant in respect of their country of residence. By the time that a claimant such as Mr. XXXX finally gets to the PRRA stage, he may well have had two decision makers (the RPD and the RAD) find that he is excluded from refugee protection, and a court confirm those decisions, without any of these decision makers having taken into account his allegation that Brazil is not safe for him due to the persecution or serious harm he alleges in that country. This is inconsistent with Article 1E’s purpose of excluding only those individuals who do not require international refugee protection because they enjoy a form of surrogate protection in their country of residence.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-19", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 42–43", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "It also seems anomalous that a claimant who has citizenship in two countries, for example Haiti and Brazil, would have their risk assessed by the RPD in relation to both countries. However, on the Célestin interpretation, a person with a less durable form of status than citizenship in one of those countries would face the consequence of having no assessment of their risk whatsoever until the PRRA stage. This is especially anomalous because, as noted by the Justice in the recent Mwano decision, a PRRA is not equivalent to the consideration of a refugee protection claim by the RPD. Even if a decision to allow a PRRA application may have the effect of conferring refugee protection,Footnote 32 the purpose of a PRRA is simply to ensure that Canada does not remove foreign nationals who would be in danger or at risk upon removal.Footnote 33 It is largely a written process in which claimants have only a limited right to an oral hearing before a person delegated by the Minister.Footnote 34\n\nBased on the factors set out above, Article 1E excludes from refugee protection individuals who do not require protection because they enjoy a form of surrogate protection in another safe country where they enjoy substantially the same rights and obligation as nationals of that country. Therefore, Article 1E not only permits, but requires, the RPD and the RAD to consider the risk raised by a claimant in respect of their country of residence before finding that they are excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. It is only by doing so that the RPD and the RAD can determine whether, in fact, the claimant does not the require the refugee protection to which they may be entitled under the Convention and the IRPA.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-20", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 44–45", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The conclusion I have arrived at above is consistent with the approach to Article 1E taken by the UNHCR as well as scholars Hathaway and Foster. In the UNHCR Handbook, the UNHCR states that Article 1E deals with persons who are not considered to be in need of international protection.Footnote 35 In its Note on the Interpretation of Article 1E, the UNHCR states that the object and purpose of Article 1E are to exclude from refugee protection those persons who do not require protection because they already enjoy a status which corresponds to that of nationals of their country of residence.Footnote 36\n\nIn its interpretive note, the UNHCR makes important observations about two different situations in which Article 1E may be applied. The first, and perhaps most common, situation in which Article 1E is applied is when an individual’s country of residence finds that they are excluded from refugee protection because they hold a status in that country that confers on them substantially the same rights and obligations as nationals. Article 1E may have been applied, for example, if Mr. XXXX had applied for asylum in Brazil. In such a situation, a claimant would not be raising any risks in respect of their country of residence and therefore a decision maker would not be called upon to take into account such risks. The second type of situation in which Article 1E is applied is when an individual seeks refugee protection in a third country. It is this scenario that arises in this case. The UNHCR notes that individuals may have a well-founded fear of being persecuted in their country of residence and to apply Article 1E to such an individual would undermine the object and purpose of the Convention.Footnote 37", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-21", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 46–51", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Similarly, Hathaway and Foster state that Article 1E affords state parties a lawful basis to exclude from refugee protection, individuals who have resided in a safe country who may reasonably be understood to be “de facto nationals” of that country.Footnote 38 They argue that a state in which there is a risk of being persecuted would fall below this standard.Footnote 39\n\nThe UNHCR and Hathaway and Foster do not argue that a risk raised by a claimant in respect of their country of residence can simply be considered before “ordering a claimant’s removal from Canada,” as stated in Célestin.Footnote 40 While it is true that the UNHCR Note refers to the principle of non-refoulement,Footnote 41 the Note specifically addresses the need to analyze any risk raised by a claimant in respect of their country of residence before finding that they are excluded from refugee protection under Article 1E.\n\nIn the Note, the UNHCR states as follows:\n\nIt also states:\n\nLikewise, Hathaway and Foster state that there is a duty to ensure that a person does not face a risk of persecution before finding them excluded from protection under Article 1E.Footnote 44\n\nIn this way, the UNHCR Note on the Interpretation of Article 1E and the scholarship of Hathaway and Foster are consistent with the interpretation to Article 1E arrived at above in which the RPD and the RAD are required to take into account the risk raised by a claimant in respect of their country of residence before excluding them from protection under Article 1E.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-22", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 52–54", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In my view, the application of the interpretative factors set out in Article 31 of the Vienna Convention do not lead to an ambiguous, manifestly absurd, or unreasonable result. Therefore, it is unnecessary to have recourse to the supplementary means of interpretation, such as travaux préparatoires, addressed in Article 32 of the Vienna Convention.\n\nIn this section, I address the four main reasons provided in Célestin and Saint Paul to support the conclusion that the RPD and RAD must not take into account any risk raised by claimants in respect of their country of residence in cases such as the present. The four arguments I address below are: (1) the fact that the Court of Appeal in Zeng did not mention any requirement to carry out an analysis of the risk raised by claimants in respect of their country of residence in cases such as the present; (2) the fact that ss. 96 and 97 of the IRPA provide protection only in respect of a claimant’s country of nationality, not their country of residence; (3) the relevance, if any, of the amendment that Parliament made to the IRPA’s PRRA provisions in 2012; and (4) concerns about administrative efficiency and the streamlining of the refugee determination process.\n\nTo begin, I address the argument that the approach that was consistently followed prior to the Célestin/Saint Paul/Constant decisions amounts to a modification of the criteria set out by the Federal Court of Appeal in Zeng. As noted in Célestin, Saint Paul, and Constant, the Federal Court of Appeal in Zeng did not mention the need to take into account the risk raised by a claimant in respect of their country of residence in cases such as the present.Footnote 45 However, in my view, three points must be taken into consideration when reading the Zeng decision.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-23", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 55–56", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "First, the main question certified for consideration by the Court of Appeal in Zeng dealt with the analysis to be applied when a claimant did not take steps to prevent a loss of status in their country of residence. The Court of Appeal in Zeng was not dealing with the kind of situation that arises in cases such as the present where the claimant continued to have permanent resident status at the time of the RPD hearing. Second, the claimants in Zeng had raised no risk in respect of their country of residence. Therefore, the Court of Appeal was not required to turn its mind to that issue. Third, the Court of Appeal’s overriding concern in Zeng was with asylum shopping which is not a concern in this case.\n\nTaking these three factors into account, in my view, the Federal Court of Appeal in Zeng did not necessarily intend to preclude the RPD and the RAD from considering the risk raised by claimants in respect of their country of residence before finding that they are excluded from protection in cases such as the present. Indeed, it is only by considering any risk raised by a claimant in respect of their country of residence that the RPD and the RAD may give effect to the purposes of Article 1E discussed in Zeng—that is, to exclude from protection those who benefit from a form of surrogate protection in a safe country of residence.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-24", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 57–58", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "A second argument made in support of the position that the RPD and RAD do not have the power to take into account the risk raised by claimants in respect of their country of residence is based on sections 95–97 of the IRPA. As noted in Saint Paul, section 95 of the IRPA sets out the categories of persons on whom refugee protection may be conferred. Sections 96 and 97 of the IRPA set out protections for Convention refugees and persons in need of protection. Both apply only in respect of a claimant’s country(ies) of nationality or their country of former habitual residence if they have no country of nationality. Therefore, according to the Justice in Saint Paul, ss. 96 and 97 of the IRPA should not be referred to in considering a claimant’s risk in respect to their country of residence. Otherwise, this would involve “reading into the text of the Act a category of refugee protection claimants that is not provided for in the Act.”Footnote 46\n\nI agree that the Convention and the IRPA provide no basis for the RPD and the RAD to find that a claimant is a Convention refugee or person in need of protection in relation to their country of residence. However, that is not what is occurring when the RPD and the RAD assess the risk raised by claimants in respect of their country of residence. When the RPD and RAD take into account this risk, they are not considering whether a claimant should be granted refugee protection in relation to their country of residence. Instead, they are considering whether a claimant’s country of residence provides a form of surrogate protection for them such that they may be excluded from protection under Article 1E because they do not require international refugee protection.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-25", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 59–61", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "For example, if the RPD had concluded that Mr. XXXX had established a serious possibility of persecution in Brazil, it would not have granted him refugee protection in relation to Brazil. Instead, it would have found that he was not excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. It then would have moved on to examine the risk that Mr. XXXX raised in respect of his country of nationality, Haiti.\n\nWhen the RPD and the RAD apply the analysis that has been developed under ss. 96 and 97 of the IRPA when evaluating the risk raised by a claimant in respect of their country of residence, they are not—or should not be—directly applying those sections. Instead, they are using the analysis that has been developed under those sections to gauge whether a claimant’s country of residence provides a form of surrogate protection for them such that they do not need refugee protection and are thus excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA.\n\nI note that the Justice in Célestin found that the use of an analysis which focuses on risks similar in nature to those set out in ss. 96 and 97 would be appropriate if, contrary to his opinion, the RAD and RPD have the power to consider the risks faced by a claimant in their country of residence in cases such as the present.Footnote 47 Likewise, the Minister applies the same factors when determining whether to exercise its power to exempt an individual from the one-year bar on seeking a PRRA after their claim has been rejected.Footnote 48", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-26", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 62–63", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Third, I address the reasoning set out in Célestin and adopted in Saint Paul that is based on an amendment to the IRPA’s PRRA provisions enacted by Parliament in 2012.Footnote 49 As noted below, my reading of the history and content of this legislative amendment differs from the analysis set out in Célestin. Specifically, I do not agree that the 2012 amendments to the IRPA provide evidence of Parliament’s intent to restrict to the PRRA stage any assessment of the risk raised by claimants in respect of their country of residence.\n\nThe legislative amendments discussed in Célestin were contained in Protecting Canada’s Immigration System Act (Bill C-31)Footnote 50 which received royal assent on June 28, 2012. Bill C-31 was an omnibus bill that made a great many amendments to the IRPA. Among other things, Bill C-31 enacted previously unproclaimed provisions creating the RAD.Footnote 51 It also amended provisions contained in the Balanced Refugee Reform Act (Bill C-11)Footnote 52 that were passed in 2010 but that had never been proclaimed into force.Footnote 53", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-27", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 64–65", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Justice in Célestin stated that the Federal Court of Appeal discussed certain shortcomings of the PRRA process in Zeng and that two years later, in 2012, Parliament intervened to resolve these shortcomings by amending s. 112 of the IRPA to add subpara. 112(2)(b.1)(i). The Justice states that this provision “expressly provides that the prohibition on making a PRRA application does not apply when a claim for refugee protection has been rejected by operation of Articles 1E and 1F of the Convention.”Footnote 54 He stated “[a]s a result of the [2012] amendment, Article 1E refugee protection claimants who appear before the RPD now have access to the PRRA mechanism.”Footnote 55 He inferred from this amendment that Parliament intended that any risk raised by claimants in respect of their countries of residence must solely be taken into account at the PRRA stage. With the greatest of respect, I have a different reading of the legislative history and content of this amendment.\n\nSection 112 of the IRPA governs applications for protection before removal (“PRRA applications”). Subsection 112(2) sets out situations in which a person is not permitted to make a PRRA application. Bill C-31 added to this subsection subpara. 112(2)(b.1)(i) which is the main provision discussed in Célestin.Footnote 56 When considered in its proper legislative context, it is difficult to see how the addition of subpara. 112(2)(b.1)(i) to the IRPA evinces an intention by Parliament that any risk raised by claimants in respect of their countries of residence must only be taken into account at the PRRA stage.Footnote 57", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-28", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 66–67", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "First, the legislative history of the provision would suggest that its introduction was not connected to any remarks the Court of Appeal made about Article 1E or the PRRA process in Zeng. Subparagraph 112(2)(b.1)(i) was one of the unproclaimed provisions from Bill C-11 that was included in Bill C-31 in 2012.Footnote 58 Bill C-11 was first introduced by the government in March 2010 and received royal assent in June 2010. The Zeng decision was rendered in May 2010. This timing makes it unlikely that Parliament adopted this legislative amendment in response to the Zeng decision, as the decision was rendered two months after the provision was first introduced and a month before it was enacted.\n\nSecond, subpara. 112(2)(b.1)(i) does not prohibit any group from making PRRA applications and it does not for the first time provide Article 1E claimants with access to the PRRA mechanism (as suggested in Célestin).Footnote 59 Instead, the provision enacts a one-year statutory bar on the making of PRRA applications following the rejection of a refugee claim. Three groups are excluded from this one-year bar: claimants who were excluded from protection under Article 1E; claimants who were excluded from protection under Article 1F; and claimants whose claims were deemed to be rejected because they were vacated by the RPD because of a misrepresentation. These groups continue to be permitted to make PRRA applications as before, including within the year following the rejection of their claims.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-29", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 68–69", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "When one considers the legislative history and content of the 2012 amendments, it appears that Parliament’s intention in enacting subpara. 112(2)(b.1)(i) was two-fold. First, it was to enact a one-year bar on the making of PRRA applications which would apply to most claimants. Second, it was to exempt from this one-year bar, claimants whose risk in their country of nationality had never been considered (claimants excluded under Article 1E and 1F) or had never been properly considered (in the case of those whose claims were vacated because they had made misrepresentations to the RPD).Footnote 60\n\nOverall, if it had been Parliament’s intention in enacting subpara. 112(2)(b.1)(i) in 2012 that only those delegated to make decisions on PRRAs would have the power to take into account the risk raised by claimants in respect of their country of residence, one would have expected a clearer statement of that intention. This is especially the case given the UNHCR’s position that the risk raised by claimants in respect of their country of residence must be assessed before they are found to be excluded from protection under Article 1E. It is also especially the case given that Parliament would in effect be removing from the RPD and the RAD a power that they had consistently been exercising for many years up to that point.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-30", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 70–71", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The decision in Célestin discusses how the approach taken in that case would streamline the refugee determination process and make it more efficient. In my view, this is debatable as one of the practical effects of the Célestin/Saint Paul approach would be that, unlike in the past, persons delegated to make decisions on PRRAs would have to hold oral hearings in respect of all (or almost all) PRRA applications in cases such as the present. Oral hearings in PRRA applications would be required because allegations of risk raised by claimants almost always raise credibility issues and such credibility issues generally must be addressed in an oral hearing in order to comply with natural justice.Footnote 61 Since most of these allegations of risk are based on events that predated the claimant’s departure from their country of residence, the Célestin/Saint Paul approach would require that a second hearing be conducted in a great many cases to address allegations that could simply have been considered during a claimant’s first hearing before the RPD. It is difficult to see how this streamlines the refugee determination process or makes the process more efficient. In any event, concerns about administrative efficiency fall within the powers and responsibility of Parliament, not courts or administrative tribunals who are tasked with legal interpretation.\n\nFor all the above reasons, the arguments put forward in Célestin and Saint Paul do not alter my conclusion that the RPD and RAD must take into account the risk raised by claimants in respect of their country of residence before finding them excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA in cases such as the present.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-31", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 72–75", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In light of the above, I find that the RPD had both the power and obligation to take into account the risk raised by Mr. XXXX in respect of Brazil before finding that he was excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. However, I find that the RPD erred in evaluating this risk after it had already found that he was excluded from protection under Article 1E. It should have assessed the risk alleged by Mr. XXXX before making a finding on the exclusion issue.\n\nIn my view, the RPD did not err in using the same kind of analysis that would otherwise be used under sections 96 and 97 of the IRPA in its consideration of the risk raised by Mr. XXXX in respect of Brazil. In doing so, the RPD was not applying those sections to Mr. XXXX. Instead, it was using the general analysis applied under those sections as a means of assessing whether Brazil provided Mr. XXXX the kind of surrogate protection that would give rise to his exclusion from refugee protection under Article 1E.\n\nAs described below, the RPD did not err in concluding that Mr. XXXX had failed to credibly establish that he would face a serious possibility of persecution if he returned to Brazil. It also did not err in finding that he failed to credibly establish that he likely would be subjected to a danger of torture, a risk to his life, or the risk of cruel and unusual treatment or punishment in Brazil.\n\nI do not agree with Mr. XXXX counsel that the RPD failed to take into account the cruel and unusual punishment that Mr. XXXX faced in Brazil. The RPD did take into account Mr. XXXX allegations of mistreatment in Brazil, but it did not find them credible due to a contradiction and an omission in his evidence about this mistreatment.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-32", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 76–77", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "I agree with the RPD that the credibility of Mr. XXXX account of the incident in which he was hit by a car was adversely affected by the contradiction in his evidence as to whether he was riding a bicycle or driving a motorcycle at the time. In his Basis of Claim form, Mr. XXXX stated that he was riding a bicycle (“vélo”) during the incident whereas he testified that he was driving his motorcycle (“moto”) when he was hit by the car.Footnote 62 When the RPD asked Mr. XXXX about the contradiction, he replied that he had told his counsel that he was driving a motorcycle but his counsel wrote that it was a bicycle in his narrative. He then said that he had watched French movies and thought that the words bicycle and motorcycle meant the same thing.Footnote 63\n\nI do not agree with Mr. XXXX counsel that this was a satisfactory explanation for the contradiction. While Counsel argues that Mr. XXXX does not understand French properly, Mr. XXXX in fact signed Declaration A on his Basis of Claim form in which he declared that he read French and that he was able to read and understand the contents of the form and all documents attached to the form. He also declared that the contents of the form were complete, true, and correct at the outset of the hearing. In addition, he testified that he understood French well enough to testify in French throughout the first hearing day.Footnote 64 In these circumstances, I find that the RPD was correct to find that Mr. XXXX had failed to satisfactorily explain the contradiction in his evidence regarding the incident and that this adversely affected the credibility of his account of the incident.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-33", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 78–79", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "I agree with the case law cited by Mr. XXXX counsel in the appeal memorandum to the effect that the RPD must base adverse credibility findings on real contradictions that are significant and not merely peripheral in nature.Footnote 65 However, in my view, the contradiction as to the vehicle Mr. XXXX was riding or driving at the time he was run over is not simply a peripheral detail. It is a significant element of the incident alleged by Mr. XXXX and the contradiction in his evidence raises concerns as to the credibility of his allegations about the incident.\n\nCounsel does not specifically address in the appeal memorandum the omission in Mr. XXXX evidence that led the RPD to draw a further negative inference as to Mr. XXXX credibility. As noted by the RPD, Mr. XXXX testified that, when he was at work, people wanted to assault him or fight with him.Footnote 66 When the RPD followed up to ask Mr. XXXX how frequently this occurred, he replied that it did not occur often but when it did he told his supervisor about it and his supervisor just told him to remain calm. When asked why he had not mentioned, in his written narrative, that people at work wanted to assault him or fight with him, Mr. XXXX replied that he did not think the events that occurred in Brazil would make a difference as he thought his claim would be based on events in Haiti.Footnote 67", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-34", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 80–81", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "I agree with the RPD that this explanation was not satisfactory as Mr. XXXX indicated in his Basis of Claim form that he was at risk of serious harm in Brazil.Footnote 68 Also, in his written narrative, he had included allegations regarding the risk that Haitians in general face in Brazil. In addition, he included the alleged incident in which the car hit him and added that people often insulted him in Brazil. He also submitted into evidence news articles about the treatment of Haitians by Brazilians. Based on this, Mr. XXXX clearly understood that his experiences in Brazil were relevant to his claim. I also note that he was represented by counsel at the time that he completed his Basis of Claim form. Nevertheless, he omitted any mention of people wanting to assault him or fight with him at work. Taking these factors into account, I agree with the RPD that it was not a satisfactory explanation for the omission for Mr. XXXX to claim that he did not think it was important to address the harm he faced in Brazil.\n\nI agree with the RPD that the omission adversely affected Mr. XXXX credibility regarding his account of events that he personally experienced in Brazil. Once again, I do not find that this omission simply relates to peripheral information. Instead, it relates specifically to the core of the allegations of persecution and serious harm raised by Mr. XXXX in relation to Brazil. Therefore, the RPD was correct to find that the contradiction and omission discussed above undermined the credibility of Mr. XXXX evidence regarding events in Brazil. They were sufficient to rebut the presumption of truthfulness that attaches to Mr. XXXX testimony in this case.Footnote 69", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-35", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 82–83", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In any event, as detailed in the next section, even if I were to accept Mr. XXXX account of events in Brazil to be credible, these events are insufficient to establish that he faces a forward- looking risk of persecution or serious harm in Brazil such that he should not be excluded from refugee protection.\n\nWhen the RPD asked Mr. XXXX what he feared in Brazil, Mr. XXXX testified that he feared that he would suffer the same treatment he experienced when he lived in Brazil. He testified that Brazilians do not want to see Haitians anymore. He said that Haitians have been discriminated against everywhere since the end of 2014, as Brazilians accused Haitians of stealing their jobs and persecuted, attacked, and hassled them. In terms of his own personal experiences of mistreatment, Mr. XXXX raised the bicycle incident, the incidents where people wanted to assault him or fight with him at work, and various other incidents in which he was insulted and in which others were served before him in line-ups.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-36", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 84–85", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Even when the incidents described by Mr. XXXX are considered cumulatively and against the backdrop of the National Documentation Packages (“NDPs”) for Brazil and Haiti, they are insufficient to establish that he would face a serious possibility of persecution due to his race or Haitian nationality if he returned to Brazil. As acknowledged by the RPD, Mr. XXXX had filed news articles reporting on discrimination and on certain attacks faced by Haitians in Brazil. The NDPs for Haiti and Brazil similarly include evidence of the discrimination that Haitians face in Brazil as well as incidents of violence that have occurred to members of the Haitian community in Brazil.Footnote 70 There is also evidence in the NDP for Brazil that the human rights situation in the country has worsened in the past couple of years.Footnote 71\n\nAs concerning as this situation may be, I find that it does not establish that Mr. XXXX would face a serious possibility of persecution if he returned to Brazil. While all discrimination is unacceptable, not all discrimination amounts to persecution. For discrimination against a person to amount to persecution, it must be serious and occur with repetition, and it must have consequences of a prejudicial nature for the person, such as the denial of a core human right, such as the right to practice religion or to earn a livelihood.Footnote 72 Expressed differently, persecution refers to a “sustained or systematic violation of basic human rights demonstrative of a failure of state protection.”Footnote 73", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-37", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "para 86", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "There exist laws in Brazil prohibiting racial discrimination and incitement of racial discrimination. These laws are generally enforced by state authorities. While the evidence in the NDP for Brazil and the news articles submitted by Mr. XXXX speak to incidents of discrimination and violence towards Haitians and Afro-Brazilians in Brazil, I do not find that the discrimination and violence described in this evidence is sufficiently sustained or systemic to rise to the level of persecution. Likewise, Mr. XXXX general statement that Haitians are blamed for taking jobs away from Brazilians and his allegations of discrimination fall short of the sustained or systemic discrimination required to establish persecution. I note that Mr. XXXX was employed for much of the time he spent in Brazil except for the last year or so that he was there. Even when considered cumulatively and against the backdrop of the NDP for Brazil, this period of unemployment and the incidents of discrimination he alleged are not sufficient to establish a serious possibility that he would be persecuted because of his race or nationality if he returned to Brazil. They also do not establish a likelihood that he would be subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment in Brazil.", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-MB8-00025-38", - "doc_type": "caselaw", - "act_code": "MB8-00025", - "act_short": "MB8-00025", - "act_name": "IRB Jurisprudential Guide MB8-00025", - "section": "", - "citation": "IRB Jurisprudential Guide MB8-00025", - "marginal_note": "paras 87–88", - "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In sum, I find that the RPD did not err in finding that Mr. XXXX failed to establish a forward-looking serious possibility of persecution on a Convention ground if he returns to Brazil. It also did not err in finding that he failed to establish a likelihood that he would be personally subjected to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment in Brazil. Therefore, the RPD correctly found that Mr. XXXX is excluded from refugee protection as he had the benefit of a form of safe surrogate protection in Brazil where his permanent resident status gave him access to substantially the same rights and obligations as nationals of that country.\n\nFor the above reasons, I dismiss the appeal and confirm the RPD’s decision that XXXX XXXX XXXX is excluded from refugee protection by the combined effect of Article 1E of the Convention and s. 98 of the IRPA. Signed: Jo-Anne Pickel Date of amended decision: December 8, 2020 Date of original decision: November 9, 2020", - "current_to": "2020-11-09", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" - }, - { - "id": "irb-TB7-01837-1", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 1–4", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "XXXX XXXX (the Appellant), a citizen of Pakistan, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either find her to be a Convention refugee or refer the matter back to the RPD for redetermination.\n\nPursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed.\n\nThe Appellant alleged before the RPD that she is a devout member of the Ahmadi religious minority in Pakistan, and that she fears persecution in her country of origin because of her faith.\n\nThe Appellant’s application for refugee protection was heard on November 3, 2016. By a decision of December 20, 2016, the RPD rejected the claim. The panel accepted the Appellant’s national identity as a citizen of Pakistan and her religious identity as an Ahmadi. However, it cited a number of credibility concerns, found that the Appellant had no particular profile as an Ahmadi, and concluded that she also lacks subjective fear. The RPD acknowledged the existence of laws targeting the Ahmadi minority but found that “this does not necessarily give good grounds for fearing persecution. If that were the case every Ahmadi would be a refugee.”Footnote 1", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-2", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 5–8", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Appellant submits that the RPD erred in finding that she can freely practice her religion in Pakistan, in making unsustainable credibility findings, in concluding that she lacks subjective fear or an objective basis for such fear, and in failing to conduct an analysis under section 97 of the IRPA. She also points out that the same RPD member has previously rendered very similar decisions which were overturned by the RAD in strongly-worded decisions.\n\nWhile the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal.\n\nThe Appellant makes no specific submissions on the standard of review to be applied here.\n\nThe RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.Footnote 2 Such an appeal (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD’s decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.Footnote 3", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-3", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 9–12", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "According to the Federal Court of Appeal, the RAD is to carefully consider the RPD’s decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD’s decision or setting it aside and substituting the RAD’s own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.Footnote 4\n\nThe RAD will review the RPD’s decision on a standard of correctness, showing deference only where the RPD had a meaningful advantage in making a finding. Even where the RAD is to show deference to findings of the RPD, those findings must still be the result of a comprehensible reasoning process. The RAD must be able to read the RPD’s decision and understand how the RPD’s conclusions were reached.\n\nThe Appellant argues that the RPD made various errors in rejecting her claim.\n\nThe RPD found credibility to be a key issue, and considered the Appellant’s evidence about being harassed at school when she was a child. The RPD member questioned the Appellant at some length about the proportion of Ahmadis and non-Ahmadis in her elementary classes or those of her children. The RPD cited objective evidence that non-Ahmadi children were not allowed in area schools while the Appellant was in school, and concluded that the Appellant’s evidence was not trustworthy. The RPD also found that it “stretches the imagination that in every class for each of her children’s school years that all classes were half non-Ahmadi who harassed each of her children in each of their respective school years.”Footnote 5", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-4", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 13–14", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Appellant submits on appeal that she never said half her classmates were non-Ahmadi; rather, she testified that in 1974, the Ahmadi-majority city of XXXX was declared open to non-Ahmadis, many of whom subsequently moved into the city. She argues that the only reference she made about the number of non-Ahmadi students was with respect to her son’s class during his last year of school.\n\nWhile the RPD has a meaningful advantage over the RAD in assessing the credibility of oral testimony, the RPD’s findings must nevertheless be based on the evidence. The RAD has reviewed the audio recording of the RPD hearing as well as the transcript provided by the Appellant. There is nothing in the evidence to indicate that the Appellant testified about half of her classmates being non-Ahmadi; when pressed by the RPD member, she estimated that about half of her son’s classmates were non-Ahmadi in his last year of school.Footnote 6 The RPD’s credibility finding here is not supported by the evidence and is therefore wrong.", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-5", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 15–17", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RPD also considered the Appellant’s testimony about one of her sons, a XXXX and XXXX, and found it “not credible that [he]… would be able to restrict his movements to seldom going out and only at night.”Footnote 7 With respect, this is not a matter of credibility but rather a finding of implausibility, to which the RAD owes no deference. In any event, this finding too is based on misconstrued evidence. In fact, the Appellant testified that her son did not go out at night, though the transcript indicates that the RPD member may have misunderstood this: Appellant: The situation in XXXX is pretty bad because the mullahs they take out processions against Ahmadis. They come and chant slogans against Ahmadis. The situation is not very safe in XXXX. So therefore, my son avoids going during the night. RPD Member: Going out during the night? Appellant: Yes. RPD Member: How can he go out during the night when he is XXXX? Appellant: He XXXX during the day but the danger is people coming from outside XXXX, so he avoids going out when it is dark.Footnote 8\n\nThe RPD’s implausibility finding here is based on a misapprehension of the evidence and is therefore wrong.\n\nThe Appellant alleged in her Basis of Claim (BOC) narrative that she feared being charged under Pakistan’s blasphemy laws. The RPD found, however, that “at no point during the hearing did the claimant volunteer such fear.”Footnote 9 In fact, the Appellant was asked by her counsel, “What could happen if the wrong person were to find out that you are Ahmadi?” The Appellant replied, “Anything could happen if such person would come to know about it and they can falsely put allegations of blasphemy on us.”Footnote 10 The RPD’s analysis here is again not based on the evidence.", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-6", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 18–19", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RPD identified credibility as a “key issue in this claim,” and “found much of the claimant’s testimony to be implausible, giving rise to enough reason to rebut the presumption of truthfulness on her part.”Footnote 11 However, the credibility findings are simply wrong, and the RPD has not provided any explanation of why it found much of the testimony to be implausible.\n\nThe RPD noted that the Appellant left Pakistan on more than one occasion to live with relatives in India, which is not a signatory to the refugee Convention. The RPD faulted the Appellant for failing to make inquiries about remaining in India. Further, she did not attempt to come to Canada until after two of her sons had arrived and been granted refugee status. The RPD found the Appellant to be lacking in subjective fear: she did not attempt to stay in India, she repeatedly returned to Pakistan, and when she arrived in Canada, she delayed in making a refugee claim for some months. Her explanation for the delay was that she did not want to jeopardize the visa application of her daughter-in-law’s mother, who also sought to flee Pakistan. The RPD considered this an attempt to “manipulate the system” in Canada,Footnote 12 and further concluded that the Appellant was engaged in a “blatant abuse of the refugee protection system and must be dealt with under immigration law and not refugee law.”Footnote 13", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-7", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "para 20", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Appellant submits that delay in departure is not usually determinative of a claim for refugee protection. Where that claim is based on a number of persecutory acts that take place over a long period of time, delay in departure is not a reasonable basis to doubt subjective fear. The Appellant explained to the RPD that she does not have status in India, nor does she have rights to status through her parents; in addition, her husband and children were in Pakistan. After her husband died in 1988, she struggled to raise four sons alone, and had no choice but to wait for them to establish themselves abroad so that they could bring her to safety. Her five visa applications illustrate her determination to leave Pakistan, and her delay in claiming in Canada was reasonable as she did not want to jeopardize the ability of her daughter-in-law’s mother to flee Pakistan.", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-8", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 21–22", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In the RAD’s view, the RPD was required to consider the cumulative and escalating nature of the feared persecution when assessing the Appellant’s subjective fear. The Appellant experienced discriminatory and persecutory incidents throughout her life in Pakistan; she notes in her BOC narrative that the situation deteriorated over the years, especially after large-scale attacks on Ahmadis in 2010. One son left in 2008, and another in 2012. The Appellant applied for visas in XXXX 2013, XXXX 2014, XXXX 2014, and XXXX 2015, before finally receiving a visa in XXXX of 2016.Footnote 14 In Ibrahimov, the Federal Court wrote, …when a claim is based on a number of discriminatory or harassing incidents which culminate in an event which forces a person to leave his country, then the issue of delay cannot be used as a significant factor to doubt that person's subjective fear of persecution. Cumulative acts which may amount to persecution will take time to occur. If a person's claim is actually based on several incidents which occur over time, the cumulative effects of which may amount to persecution, then looking to the beginning of such discriminatory or harassing treatment and comparing that to the date on which a person leaves the country to justify rejection of the claim on the basis of delay, undermines the very idea of cumulative persecution.Footnote 15\n\nIt was therefore an error for the RPD to fault the Appellant for failing to remain in India – where she has no status, has no right to status, and which is not signatory to the refugee Convention – or for returning to Pakistan, or for failing to leave Pakistan at an earlier date.", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-9", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 23–25", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RPD also erred in rejecting the Appellant’s explanation for her delay in claiming. The Appellant had considerable difficulty in obtaining a Canadian visa; she was concerned that, if she immediately made a refugee claim, this would prevent another family member from obtaining a visa. While the RPD clearly disapproved of what it viewed as a manipulation of Canada’s asylum system, this does not change the fact that the Appellant was in status in Canada and that there was no risk to her in waiting a few months to claim. Conversely, she believed that there was a risk to another Ahmadi woman if the Appellant were to promptly file a refugee claim. While the RPD may have disapproved of the Appellant’s motives, her actions here simply do not indicate a lack of subjective fear.\n\nThe RPD erred when it found the Appellant to be lacking in subjective fear.\n\nIn the RAD’s view, the key issue in the Appellant’s refugee claim was her risk of persecution as an Ahmadi. The RPD’s analysis of this issue is puzzling and problematic.", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-10", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "para 26", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RPD noted the Appellant’s testimony that “she would like to discuss openly or preach her Ahmadi religion but only discussed her religion with people she trusts, otherwise she hides her religion.” The panel correctly observed that “any person wishing to manifest their faith openly should be able to do so,” but then inexplicably concluded that “there is nothing in this claimant’s evidence that would persuade this panel that the claimant had any desire to proselytise or hold religious conversations with non-Ahmadis.”Footnote 16 The RAD simply cannot understand this analysis, which appears to be internally inconsistent: if the Appellant testified that she would like to openly preach her religion, how could the RPD find no evidence of any desire to proselytise or hold religious conversations?", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-11", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 27–28", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RPD considered the Appellant’s evidence that she stopped attending the main mosque in 2010 after two violent attacks on Ahmadi places of worship. It noted that her prayers were interfered with by abusive anti-Ahmadi messages broadcast over loudspeakers from the Sunni mosque. As discussed above, it was aware of her testimony that she wished to openly discuss her faith but could not. The RPD referred to objective evidence that religious minorities in Pakistan, including minorities, are “subject to societal abuses, discrimination and/or persecution at the hands of extremists and/or the authorities.” It also observed that “Ahmadi Muslims continue to be victimized, with the May 2014 murder of a Canadian-American Ahmadi conducting humanitarian work and the recent mob attack on an Ahmadi home serving as a graphic reminder of their vulnerability….”Footnote 17 Despite all of this evidence, it somehow concluded that there is not a serious possibility that the Appellant will be persecuted for a Convention ground.\n\nThe UNHCR Handbook states, with respect to religion, that: 71. The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right includes the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance. 72. Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.Footnote 18", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-12", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 29–31", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Handbook also speaks to the difference between discrimination and persecution: It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.Footnote 19\n\nIn Rajudeen, the Federal Court of Appeal adopted this definition of religious persecution: “To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship.”Footnote 20\n\nHaving accepted that the Appellant is Ahmadi, the RPD was obligated to consider whether the treatment of Ahmadis in Pakistan, including the Appellant, constitutes persecution on the basis of religion.", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-13", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 32–33", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "There is important evidence in the record with respect to Ahmadis which was not discussed by the RPD. The constitution of Pakistan was amended in 1974 to declare Ahmadis as “non-Muslim;” ten years later, the criminal code was amended to make it a crime for Ahmadis to refer to themselves as Muslims or to practice or propagate their faith as Muslims. When applying for an identification card or passport, all Pakistanis must sign an oath rejecting the founder of the Ahmadi religion and declaring that Ahmadis are non-Muslims. Ahmadis have faced prosecution under Pakistan’s blasphemy laws, and the mere accusation of blasphemy leads to mob attacks and lynchings. Ahmadis have been arrested for reading the Quran and for using Quranic verses on rings and wedding cards. Ahmadis face severe societal discrimination, and societal attitudes have become increasingly hostile in the past decade. Some anti-Ahmadi groups have organized rallies where they described the killing of Ahmadis as a religious obligation. There have been numerous acts of violence against Ahmadis and the police have a poor track record of providing protection.\n\nAhmadis are marginalized and excluded from the political system because, in order to register as a voter, they are required to sign a declaration about the finality of the prophet Muhammad, with which they cannot agree. Students applying for university must, if identifying themselves as Muslim, sign a similar declaration, which excludes Ahmadis. University teachers have called for the killing of Ahmadis, and students who objected to this were expelled. The Pakistani government proactively victimizes Ahmadis socially, economically, and educationally, to the point where livelihoods become difficult.Footnote 21", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-14", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 34–36", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In this case, as in previous decisions, the RPD wrongly applied a too-narrow definition of persecution. The RPD focused on physical violence, and appeared to conclude that the Appellant will not be harmed or killed because of her religion. However, the RPD did not undertake a serious analysis of whether the restrictions faced by Ahmadis, including the Appellant, amount to a denial of the fundamental right to freedom of religion.\n\nFreedom of religion includes the right to manifest one’s religion in practice, including in public, a freedom not enjoyed by Ahmadis in Pakistan. They face measures which lead to consequences of a substantially prejudicial nature, including the prohibition against describing themselves as Muslims, difficulty in applying for documents and for entrance to educational institutions, interference in mosque attendance and prayer, and a prohibition on proselytizing. Even if Ahmadis faced no threat of physical harm – and the evidence indicates that there is indeed such danger – there is considerable evidence to support the argument that they experience religious persecution.\n\nThe RAD finds that the Appellant faces serious restrictions on the practice of her religion. She need not establish that she will be physically harmed. The evidence shows that she may not describe herself a Muslim; that she must deny her faith – choosing to either be Muslim or Ahmadi, but not both - to obtain documents or gain admission to government institutions; that she wishes to speak publicly of her faith, but is prohibited from doing so; that her prayers are deliberately interfered with by hate-spewing loudspeakers; that she could not attend a particular mosque because of the threat of violence; and that she risks prosecution under the blasphemy laws.", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB7-01837-15", - "doc_type": "caselaw", - "act_code": "TB7-01837", - "act_short": "TB7-01837", - "act_name": "IRB Jurisprudential Guide TB7-01837", - "section": "", - "citation": "IRB Jurisprudential Guide TB7-01837", - "marginal_note": "paras 37–40", - "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RPD stated that “the mere existence of laws targeting a specific religious group in this case Ahmadi does not necessarily give good grounds for fearing persecution. If that were the case every Ahmadi would be a refugee.”Footnote 22 While the mere existence of persecutory laws may not be enough to establish a refugee claim, the RPD is required to look beyond the existence of those laws and to consider whether and how they are implemented, and what other measures and practices may impact on a refugee claimant’s freedom of religion.\n\nIt is not for the RPD, or the RAD, to determine whether “every Ahmadi would be a refugee,” though it is not uncommon for an entire group to be considered at risk of persecution in a particular country due to their profile, whether that be for reasons of sexual orientation, ethnicity, or religion. However, in considering claims such as that of the Appellant, the RPD is obligated to correctly apply the definition of religious persecution to the evidence, and to avoid restricting that definition to physical harm.\n\nHaving considered the evidence, the RAD finds that the Appellant faces a serious possibility of persecution on account of her Ahmadi religion. As the state is one of the leading agents of persecution, the Appellant cannot expect adequate state protection. As the persecutory laws, measures, and practices exist in all areas of Pakistan, the Appellant cannot avail herself of a viable internal flight alternative.\n\nPursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed. Signed: Edward Bosveld Date: May 8, 2017", - "current_to": "2017-05-08", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" - }, - { - "id": "irb-TB4-05778-1", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 1–4", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "XXXX XXXX (the Appellant), a citizen of the Democratic People’s Republic of Korea (North Korea), appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to either find her to be a Convention refugee or refer the matter back to the RPD for redetermination.\n\nThe Appellant is a minor. The RPD appointed a designated representative to protect the interests of the Appellant and to explain the process to her; that designation continues to apply for the purposes of this appeal.Footnote 1 The RAD is also cognisant of the Chairperson’s Guideline with respect to child refugee claimants.Footnote 2\n\nThis appeal is based on what the Appellant characterizes as “the narrow issue that needs to be decided… whether South Korea should also be a country of reference in the appeal and whether the Appellant would have an automatic right to South Korean citizenship.”Footnote 3 Having reviewed the RPD’s record, the RPD’s decision, and the appeal record, the RAD agrees that this is the determinative issue, though it will simplify the question to ask whether the Appellant is, or could choose to become, a citizen of South Korea.\n\nFor reasons set out below, the RAD finds that the Appellant is indeed a citizen of South Korea, and therefore does not require Canada’s protection. Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-2", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 5–7", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Appellant was born in XXXX in North Korea. She is XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant arrived in Canada from China in February of 2013, and claimed refugee protection the following month.\n\nThe Minister of Citizenship and Immigration Canada (the Minister) intervened in the Appellant’s claim before the RPD,Footnote 4 taking the position that the Appellant had not established her identity, and that if the Appellant was born in North Korea, she is automatically a citizen of the Republic of Korea (South Korea.) The Minister submitted that the Appellant had not established a well-founded fear of persecution in South Korea, and further argued that she had not rebutted the presumption of adequate state protection in that country. Finally, the Minister also submitted that the Appellant’s evidence suffered from a variety of credibility problems.\n\nThe Appellant's application for refugee protection was heard on May 21, August 14, September 6, October 29, and November 26 of 2013. By a decision of May 29, 2014, the RPD found that the Appellant is neither a Convention refugee nor a person in need of protection. The panel accepted the Appellant’s identity as a national of North Korea, and found her to be “a very credible witness.”Footnote 5 However, the RPD also concluded that the Appellant is deemed to be a citizen of South Korea, and found that she had not rebutted the presumption of adequate state protection in that country. It also determined that the harm she fears in South Korea amounts to discrimination and is not persecutory.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-3", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 8–10", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Appellant appealed to the RAD on June 23, 2014. In a decision dated December 21, 2014 (the first RAD decision), the RAD confirmed the RPD’s finding that the Appellant is a citizen of South Korea. The RAD then concluded it had no jurisdiction to determine the appeal, as section 110(2)(d.1) of the IRPA did not allow appeals to the RAD by citizens of countries designated under subsection 109.1(1), of which South Korea was one.\n\nThe Appellant sought leave of the Federal Court to commence an application for judicial review of the first RAD decision; leave was granted on June 10, 2015. On September 4, 2015 the Court, on consent of both parties to the application, granted the judicial review and quashed the first RAD decision. While the Court did not provide reasons for its order, the RAD notes that on July 23, 2015 the Court held in another matter that “paragraph 110(2)(d.1) of the IRPA is inconsistent with subsection 15(1) of the Charter and has no force and effect….”Footnote 6\n\nThe matter was returned to the RAD. By a decision of November 12, 2015 (the second RAD decision), a differently constituted panel of the RAD confirmed the RPD’s findings that the Appellant is deemed a citizen of South Korea, that she faces discrimination but not persecution there, and that she had not rebutted the presumption of adequate state protection in that country.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-4", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 11–13", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "On November 30, 2016, the Appellant made an application to re-open her RAD appeal. She argued that she had intended to submit further evidence, and make additional submissions to the RAD, but that the second RAD decision was rendered before she could do so. In a decision of February 3, 2016 (the third RAD decision), the RAD allowed the application and re-opened the appeal. The Appellant was given an opportunity to “file an application for any new evidence and submissions in regard to this matter,”Footnote 7 which was then assigned to the present RAD panel for determination.\n\nOn March 17, 2016, the Appellant made an application under Rule 29 and Rule 37 of the RAD Rules, asking the RAD to accept various supporting documents as well as a new Memorandum of Fact and Law.Footnote 8 The Minister has not responded to this Application.\n\nRule 29(4) requires the RAD to consider “any relevant factors,” and sets out some specific factors to be considered: the relevance and probative value of the documents, whether they bring new evidence to the appeal, and whether the documents could reasonably have been provided earlier, as required by the Rules.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-5", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 14–17", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RAD finds that the proposed new evidence and submissions are relevant to the determinative issues here. Further, this file has a lengthy history, including one RPD decision, three RAD decisions, and one Federal Court decision. The Appellant’s circumstances are extraordinary: she is a minor XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, is assisted by a Designated Representative, and has been represented by a number of different counsel. She did in fact ask the RAD to allow her to adduce this evidence prior to the second RAD decision. For these reasons, the RAD grants the Appellant’s Rule 29 application and accepts the late submission of the Appellant’s new Memorandum and her proposed new evidence, which will be considered for admissibility pursuant to section 110(4) of the IRPA.\n\nThe Appellant submits that the RPD made incorrect findings about whether South Korean citizenship is automatic for North Koreans, and failed to adhere to the principle of stare decisis in refusing to follow case law that found such citizenship is not automatic.Footnote 9\n\nSection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expectedFootnote 10 in the circumstances to have presented, at the time of the rejection.\n\nIt is for the Appellant to make full and detailed submissions in her Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.Footnote 11", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-6", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 18–20", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Section 110(4) establishes a disjunctive test.Footnote 12 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in her circumstances, to have presented the evidence to the RPD prior to the rejection of her claim. If she could not have been expected to do so, the evidence meets the requirements of the section.\n\nIf the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.Footnote 13\n\nAs the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD – either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-7", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 21–23", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD’s view, a document’s “newness” cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.Footnote 14 Old evidence remains old evidence, even if it is placed in a new document with a recent date.\n\nWhere a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document’s “newness,” these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4).\n\nIn Singh,Footnote 15the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in RazaFootnote 16 to the assessment of new evidence. While Raza predates the introduction of section 110(4) of the IRPA, it is based on the nearly identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.Footnote 17 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).Footnote 18", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-8", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 24–26", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered “credible or trustworthy in the circumstances.” This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence.\n\nRelevance is a basic condition for the admissibility of any piece of evidence.Footnote 19 RAD Rule (3)(3)(g)(iii) requires the Appellant’s Memorandum to include full and detailed submissions about how any proposed new evidence “relates to the Appellant.” It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to “deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.”\n\nIn addition to credibility and relevance, the factors in Raza include “newness” and “materiality.” Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section110 (6) of the IRPA, which describes when the RAD may hold an oral hearing.Footnote 20", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-9", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 27–29", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "For these reasons, the RAD will apply the following factors to considering the Appellant’s proposed new evidence. It will first consider whether the evidence passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible.\n\nThe Appellant asks the RAD to admit the following evidence in this appeal:\n\nThe RAD will consider each piece of evidence below. First, however, it must address the Appellant’s argument in support of many of the proposed new documents. She submits that: [W]here there is uncertainty in the evidence at the RPD level on a determinative issue in the appeal, and where the new evidences [sic] resolves the contradiction, the RAD should allow a claimant to respond to these evidentiary deficiencies on appeal.Footnote 28", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-10", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "para 30", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "With respect, this suggested approach is supported by neither statute nor jurisprudence. As discussed above, section 110(4) sets out a clear test for the admissibility of new evidence. The Court has held that the RAD does not have discretion to admit evidence that does not pass this test. The Appellant appears to be splitting her case. She presented some evidence to the RPD; after finding that this did not lead to the acceptance of her refugee claim, she obtained further evidence and now seeks to rely upon it. It is a well-established judicial principle that evidence and issues must be introduced exhaustively and dealt with at first instance.Footnote 29 The Federal Court of Appeal has held that section 110(4) does not provide an opportunity for the Appellant to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.Footnote 30 For this reason, the RAD cannot accept the Appellant’s argument that the RAD must allow her to respond to “evidentiary deficiencies” upon appeal.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-11", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "para 31", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Document (a) is an affidavit from the Appellant’s XXXX worker, in which the affiant sets out the history of the Appellant’s refugee claim and appeals. Although it is dated after the rejection of the Appellant’s refugee claim, the evidence therein is not new at all. While the recounting of the Appellant’s refugee claim proceedings is helpful background, this information is already contained in the record. The affiant does state that “the Appellant does not have any desire to live in South Korea,” and the Appellant argues that this “gives the current mindset of the Appellant.”Footnote 31 The RPD was aware of the Appellant’s reluctance to live in Korea;Footnote 32 there is no evidence before the RAD to show that this mindset has changed. The information in document (a) did not arise after the rejection of the Appellant’s refugee claim; in fact, it is already in the record and it cannot be considered as new evidence in this appeal.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-12", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "para 32", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Document (b) is an article which was apparently published in either 2012 or 2013.Footnote 33 The Appellant submits that the article is relevant and probative, and serves to clarify confusion about the laws of South Korea. However, the RAD finds that the document does not meet the test in section 110(4). It did not arise after the rejection of the Appellant’s refugee claim in May of 2014. The Appellant has not established that it was not reasonably available to her prior to that rejection. If indeed there was confusion during the RPD hearing on the subject of citizenship, as the Appellant argues,Footnote 34 then she could reasonably have been expected to have presented this document to the RPD.Footnote 35 The RAD notes that the Appellant’s refugee hearing began in May of 2013; the last sitting took place in November of that year, and a decision was rendered by the RPD in May of 2014. The Appellant had between six months and a year to provide this article to the RPD to dispel the confusion which she claims was apparent during her hearings. Even if this document is relevant and probative, as the Appellant claims, it must meet the test in section 110(4). Document (b) does not meet that test and the RAD has no discretion to admit it.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-13", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 33–34", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Document (c) is a copy of the North Korean Refugees Protection and Settlement Support Act. Although there is no date on the document, it appears that it was last amended on January 21, 2014, well before the rejection of the Appellant’s refugee claim. The Appellant makes no submissions on how this document meets the test in section 110(4), and does not argue that it was not available for submission to the RPD. In fact, the RAD notes that an earlier version of this legislation appears in the RPD’s record.Footnote 36 This document is not admissible as new evidence. It did not arise after the rejection of the Appellant’s refugee claim, the Appellant has not established that it was not reasonably available to her, and as this Act was at issue during the refugee hearing, the Appellant could reasonably have been expected, in her circumstances, to provide this to the RPD.\n\nDocument (d) is an undated article from the Yonsei Law Journal, entitled “The Law and Politics of Citizenship in Divided Korea.” A footnote indicates that the article was presented at a conference in February of 2015. The Appellant’s Rule 29 application does not refer to this document, and her Memorandum lists other proposed new evidence but does not include this document or make any submissions on it.Footnote 37 The Appellant has not provided full and detailed submissions, as required by the Rules, about how this document meets the requirements of section 110(4) and how it relates to her, and for this reason document (d) cannot be admitted as new evidence.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-14", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 35–36", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Even if this document could pass the test in section 110(4), the Appellant has not explained its relevance, or otherwise relied upon it in her submissions. The RAD has reviewed the article, and has some difficulty in understanding how it supports the Appellant’s position. For example, the author writes: In short, that North Koreans are deemed nationals of the Republic of Korea alone does not preclude the recognition of North Korean escapees as refugees. However, what if a North Korean does not want to be treated as a national of the Republic of Korea? Can we impose the nationality of the Republic of Korea upon that person against his/her wishes and despite his/her lack of actual links with South Korea? Unfortunately, North Koreans face increasing difficulty with asylum applications in other countries because they have a country that recognizes them as its citizens even if they do not want to be treated as such…. North Korean asylum seekers are often seen as opportunistic migrants who can, but do not try to, settle in the Republic of Korea, where they are entitled to citizenship.”Footnote 38\n\nWithout the benefit of submissions from the Appellant, the RAD cannot ascertain how this document meets the requirements of section 110(4) or how it relates to the Appellant. However, even if it would admit this document, the RAD would find that it supports the conclusion that North Koreans are in fact deemed nationals of South Korea – whether they desire this or not.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-15", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "para 37", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Document (e) is a letter, dated March 11, 2016, from a South Korean professor and former bureaucrat “who dealt with processing procedures for North Korean refugees coming to South Korea.” This document is dated after the rejection of the Appellant’s refugee claim; however, its contents are not new at all. The author appears to be writing of his historical experience as a South Korean official of some sort; he provides no time frame and it is not clear whether this experience was recent or in the distant past. The RAD finds that the Appellant has not established that this evidence arose after the rejection of her refugee claim. Was this evidence reasonably available for presentation to the RPD? In her Application, the Appellant submits that: [G]iven the confusion in the evidence before RPD, which was acknowledged by the Member, the Appellant sought a new opinion on citizenship acquisition procedures in South Korea for North Koreans. This expert was found after the Appellant’s RPD decision and gives clarification to the confusion in the evidence at the RPD level.Footnote 39 This opinion is relevant and probative for the issues under appeal since the procedures for granting citizenship are the determinative issue in the appeal.Footnote 40", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-16", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 38–39", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "If indeed there was confusion at the RPD on this central issue, the Appellant could reasonably have been expected to present this evidence to the RPD to bring clarity. The Appellant has provided no explanation for the fact that this letter was produced in March of 2016, when the RPD hearing took place in 2013 and the decision was rendered in mid-2014. The Appellant has not indicated when she sought this opinion, or explained why it was not obtained in 2013 or 2014. As the RAD has already discussed, section 110(4) does not provide an Appellant with the opportunity to correct a deficient record before the RPD.\n\nThe Appellant has not established that the evidence in document (e) arose after the rejection of her refugee claim, or that it was not reasonably available to her prior to that time, or that she could not have been reasonably expected to present this evidence to the RPD. This document is not admissible. Even if this document was admissible here, however, the RAD would give it little weight. The Appellant did not disclose the information provided to the author whose opinion was sought, or reveal the questions he was asked to answer. The author provides vague information about his work as a “bureaucrat with the Korean Republic,” and does not give a position, title, or department. It is significant that he also does not indicate when he filled such a position, or for how long, or why he left it. Even if this document would meet the test in section 110(4), it has little probative value.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-17", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "para 40", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The document in (f) is an affidavit from Ms. XXXX, sworn March 11, 2016. She explains how she visited the South Korean consulate on XXXX XXXX, 2016, and questioned an official there about “citizenship acquisition procedures.” The affidavit sets out Ms. XXXX’s summary of the official’s answer. The Appellant argues that this document is “relevant and probative for the issues under appeal;”Footnote 41 in her view, “this interview with the Consulate happened after the Appellant’s RPD claim and thus meets the requirements under section 110(4)(a).”Footnote 42", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-18", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "para 41", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RAD finds, however, that the evidence upon which the Appellant seeks to rely here is not that the Designated Representative visited the consulate, but rather the citizenship information provided by the consular official. This information is simply not new. The Appellant does not take the position that South Korean citizenship laws or procedures have changed since the rejection of her refugee claim; rather, she simply attempts to present old evidence with a new date. The RAD finds that the evidence in Ms. XXXX’s affidavit did not arise after the rejection of the Appellant’s refugee claim. The Appellant has not explained why this was not reasonably available at an earlier date. She was represented by the same Designated Representative through six sittings of her refugee hearing in 2013; her claim was not rejected until one year after the first sitting, and six months after the last sitting. Why did she not seek this information from consular officials before or during her RPD hearing? If the RPD panel displayed confusion on the issue of citizenship, as the Appellant argues on appeal, the Appellant could reasonably have been expected, in such circumstances, to obtain and present this evidence prior to the rejection of her refugee claim. Document (f) is not admissible as new evidence here.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-19", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 42–47", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Document (g) is a letter, dated January 25, 2016, from Ms. XXXX to Ms. XXXX. In the document, Ms. XXXX confirms the Appellant’s lack of North Korean identity documents. This is not new evidence. In fact, the RPD acknowledged the “absence of documents,” and noted the “difficulties in assessing documents from North Korea.”Footnote 43 The evidence in the January 25, 2016 letter did not arise after the rejection of the Appellant’s refugee claim, and in fact is already in the record. Document (g) is not admissible here.\n\nFor these reasons, none of the Appellant’s proposed new evidence is admissible in this appeal.\n\nWhile the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal.\n\nThe Appellant submits that the RAD should conduct its own independent assessment of the evidence in the case under appeal and arrive at its own opinion whether she is a Convention refugee or person in need of protection.\n\nIt is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.Footnote 44\n\nThe RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.Footnote 45 Such an appeal (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD’s decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.Footnote 46", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-20", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 48–50", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "According to the Federal Court of Appeal, the RAD is to carefully consider the RPD’s decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD’s decision or setting it aside and substituting the RAD’s own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.Footnote 47\n\nWith respect to findings of fact and of mixed fact and law, the RAD is to review the RPD’s decision applying a standard of correctness.Footnote 48 When applying that standard, the RAD will not show deference to the RPD’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to decide whether it agrees with the determination of the RPD; if not, the RAD will substitute its own view and provide the correct answer.Footnote 49\n\nThe RAD may show deference to findings of the RPD where the lower tribunal was in an advantageous position to reach such conclusions. Here the RAD will defer to the RPD’s finding that the Appellant was a very credible witness, as the RPD saw, heard, and questioned the Appellant and was therefore in a better position to make a credibility determination than is the RAD. However, no deference is warranted with respect to the findings which are challenged by the Appellant here. The issue in this appeal – whether the Appellant is or could choose to become a citizen of South Korea – must be determined on the basis of objective evidence. The RPD has no advantage over the RAD in considering that evidence.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-21", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 51–54", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RAD will apply a standard of correctness to its consideration of the RPD’s decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD’s finding is wrong.\n\nThe Appellant argues that the RPD erred in finding that she is, or could choose to become, a citizen of South Korea. While the RPD made other findings, such as with respect to state protection in South Korea, the Appellant does not challenge these on appeal.\n\nIn Williams, the Federal Court of Appeal set out the principles to be considered when a refugee claimant has more than one potential country of reference. The Court held that where citizenship is within the control of the claimant, and where acquisition of such citizenship is a mere formality, the claimant must show a well-founded fear of persecution against that country. If there is no room for the state in question to refuse status, then the claimant is expected to seek the protection of that state unless she can demonstrate a well-founded fear of persecution there.Footnote 50\n\nIn its recent TretsetsangFootnote 51decision, the Court of Appeal held that the control test set out in Williams remains applicable for determining a claimant’s country of nationality.Footnote 52 The Court held further that a refugee claimant who alleges an impediment to exercising her right of citizenship in a particular country must establish both the existence of a significant impediment and that she has made reasonable, but unsuccessful, efforts to overcome such an impediment.Footnote 53", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-22", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 55–56", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In the Appellant’s submission, discretion exists in the granting of South Korean citizenship. She reminds the RAD that the tribunal is to consider the level of control that the refugee claimant has over the citizenship application process: there must be a degree of certainty.Footnote 54 In her submission, objective evidence indicates that South Korean authorities have some discretion in the granting of citizenship to those born in North Korea. Given that South Korean officials will undertake an investigation into the identity and history of the Appellant, there is no certainty that she will be approved for citizenship.\n\nThe Appellant also argues that, in Kim,Footnote 55 the Federal Court found that South Korean citizenship is not automatic for nationals of North Korea. As she reads that decision, the Court concluded that citizenship in South Korea was by no means automatic, as North Koreans must establish “will and desire” to live in South Korea, and as persons who have lived in a third country for an extended period of time are not eligible for citizenship. In the Appellant’s submission, the Kim case continues to be the leading authority on the issue of Korean citizenship. She objects to the RPD’s departure from Kim, and challenges the RPD’s reliance on a RAD decision from July of 2013. She submits that the RPD erred in failing to follow the principle of stare decisis; the lower tribunal was bound by the Court, as is the RAD. Given that there is “considerable debate”Footnote 56 at the previous RPD and RAD proceedings on how to interpret the laws of South Korea, she argues that this appeal too must follow the decision of the Court.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-23", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 57–59", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RAD has considered the Appellant’s submissions on appeal, as well as all of the material in the RPD’s record. That record is voluminous, and contains numerous documents and thorough submissions from the Appellant’s representatives and from the Minister. While the RAD has carefully reviewed all of the evidence and submissions, it will not make specific reference to each document in the record.\n\nThere are three pieces of South Korean legislation which are relevant to this appeal. The Constitution of the Republic of Korea (the Constitution) is important because it defines the territory of South Korea as “the Korean peninsula and its adjacent islands,” thereby including all of North Korea in its scope. The Constitution also provides that “nationality in the Republic of Korea shall be prescribed by Act.”Footnote 57\n\nThe Nationality Act sets out “the requirements to become a national of the Republic of Korea.”Footnote 58 It provides that an individual is a national of South Korea if that person’s father or mother is a national of the Republic of Korea at the time of the person’s birth. It also holds that a person is a national if born in the Republic of Korea where both parents are unknown or have no nationality.Footnote 59", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-24", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "para 60", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Act on the Protection and Settlement Support of Residents Escaping from North Korea (the Protection Act) serves to provide protection and support to North Korean residents escaping from North Korea and “desiring protection from the Republic of Korea….” The purpose of the Protection Act is to assist such North Koreans “to adapt themselves to, and settle down in, all spheres of their lives, including political, economic, social and cultural spheres.”Footnote 60 The Protection Act does not discuss the granting or recognition of nationality; however, it does provide that certain individuals may be ineligible for protection: international criminal offenders, offenders of serious non-political crimes, “suspects of disguised escape”, and those who have for a “considerable period” earned their living in another country.Footnote 61 The Protection Act goes on to describe various forms of “protection,” including settlement support, recognition of academic qualifications, social adaptation training, employment assistance, financial support, medical care, and more. It also sets out circumstances in which protection may be suspended or terminated, such as when the person involved is sentenced to imprisonment, intentionally provides false information to the authorities, or attempts to return to North Korea.Footnote 62", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-25", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 61–62", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In June of 2008, the IRB’s Research Directorate published a Response to Information Request (the RIR) on the issue of South Korean citizenship for individuals born in North Korea.Footnote 63 The paper considered South Korean legislation and information gathered in an interview with an official at South Korea’s Ottawa Embassy. The RIR found that North Koreans “are not automatically accepted as South Korean citizens…. [they] must demonstrate that they possess the ‘will and desire’ to live in (South) Korea….” It also commented that some North Koreans are ineligible for South Korean citizenship, including international criminals and those who have lived in a third country for a long period of time.Footnote 64\n\nAccording to objective evidence relied upon by the Appellant before the RPD, this RIR “made a significant impact on positive decisions” for North Korean asylum seekers in Canada.Footnote 65 It also made an impact at the Federal Court. In the Kim decision of June 30, 2010, Justice Hughes relied heavily upon the RIR in concluding that it was unclear whether North Koreans would automatically be given South Korean citizenship.Footnote 66 The Court cited the “will and desire” phrase from the RIR and found that there was no certainty to the outcome of the citizenship application process in South Korea.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-26", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 63–64", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In October of 2010, the Refugee Review Tribunal of Australia also addressed this issue. It considered the South Korean legislation discussed above. It noted that authorities in the United States “interpret DPRK and ROK legislation to mean that DPRK citizens have the nationality of both countries.”Footnote 67 It reviewed the Canadian RIR, and various expert reports. The Tribunal ultimately concluded that “a North Korean has South Korean citizenship by operation of South Korean law.”Footnote 68 It found that the Canadian RIR “conflated 2 issues – citizenship/nationality on the one hand, and eligibility for the APSSR [Protection Act] assistance package (‘protection’) on the other.”Footnote 69\n\nIn KK and ors, the Upper Tribunal of the United Kingdom’s Immigration and Asylum Chamber considered the appeals of three individuals from North Korea, each of whom had been denied refugee protection in the U.K. because they were found to have citizenship in South Korea.Footnote 70 The Tribunal also considered the conclusion contained in the Canadian RIR: “that North Koreans are not automatically accepted as South Korean citizens: they must demonstrate that they possess the ‘will and desire’ to live in South Korea.”Footnote 71 It did not accept this position, instead concluding that a citizen of North Korea, born in that country, has also been a citizen of South Korea since birth. It nevertheless allowed the appeals, as the Appellants had been outside of the Koreas for more than ten years, and under South Korean law were thus presumed to have obtained citizenship elsewhere.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-27", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 65–67", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In a decision of July 31, 2013, this panel of the RAD considered an appeal by the Minister against a decision of the RPD which granted refugee protection to two nationals of North Korea.Footnote 72 The Minister submitted new evidence from South Korean officials, who confirmed that North Korean-born individuals are deemed nationals of South Korea.Footnote 73 The RAD considered the Kim decision of the Federal Court, as well as the British and Australian tribunal decisions. It concluded that the RIR erroneously linked protection under the Protection Act with citizenship under the Nationality Act. Having considered the evidence, including the recent evidence from South Korean officials, the RAD concluded that the Appellants were citizens of South Korea.\n\nThe RIR in question was subsequently removed from the IRB’s National Documentation Package. A later RIR reported that “citizens of North Korea are recognized as citizens of the Republic of Korea in the Constitution” and that if the individual is not a North Korean infiltrator or agent, “it is certain that ROK citizenship will be granted.”Footnote 74\n\nIn support of his intervention at the RPD, the Minister submitted an expert report addressing the subject of South Korean nationality law. The report, dated in December of 2013, was written by Professor Andrew Wolman, Associate Professor at the Graduate School of International Area Studies at Hankuk University of Foreign Studies. The author’s research has focused on the role of national human rights institutions in Asia and on refugee and migration law issues in the Korean peninsula. In order to answer questions posed to him by Citizenship and Immigration Canada, he consulted a number of sources, including government officials, lawyers, and professors.Footnote 75", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-28", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 68–70", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Professor Wolman gave the opinion that North Korean nationals are, from birth, automatically citizens of South Korea.Footnote 76 He stated that: The conclusion that DPRK nationals are automatically ROK citizens is accepted by ROK government officials and the vast majority of both foreign and domestic legal scholars. I would consider it now to be settled law within the ROK. The professor explained three exceptions: naturalized North Koreans of a non-Korean ethnicity, North Korean nationals who have voluntarily taken on the nationality of a third country, and North Korean nationals who can trace their Korean lineage only through maternal descent prior to June 14, 1998.\n\nThe RAD notes that the Appellant has not argued that she falls into any of these exceptional categories.\n\nThe Appellant argues on appeal that both the RPD and the RAD continue to be bound by the decision of the Federal Court in Kim. In her submission, the Court found that South Korean citizenship is not automatic for nationals of North Korea. As there has been no change in the jurisprudence, the IRB is bound by that finding. The RPD erred, in her submission, by failing to follow the principle of stare decisis, which requires the tribunal to adhere to decisions from a higher-level court. She argues that there was “considerable debate” in the previous RPD and RAD proceedings about how to interpret the laws of Korea and whether or not South Korean officials have discretion to grant citizenship. In view of this uncertainty, she submits, the RAD must follow the decision of the Federal Court in order to provide consistency and predictability in law.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-29", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 71–73", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RAD cannot accept the Appellant’s argument that there has been considerable debate or inconsistency with respect to this issue. In 2013, the RAD found the RIR to be flawed, and concluded that North Korean nationals are deemed citizens of South Korea. In 2014, the RPD followed this reasoning and found the Appellant to be a citizen of South Korea. The first RAD decision in this appeal confirmed this finding, as did the second. The debate occurred because the Appellant, as is her right, vigorously challenged this consistent position. There is little basis for the Appellant’s argument that the RAD must follow Kim in order to provide consistency. In fact, following Kim would do the opposite and create an inconsistency.\n\nThe difficulty here, of course, is that the RPD and the RAD have been consistent in not following Kim, at least since the accuracy of the RIR was impugned. The RAD finds that it is not bound by the decision of the Court in Kim because the RAD now has updated and more accurate information on the issue of nationality. Further, the RAD is a specialized tribunal, and the interpretation of the IRB’s Response to Information Requests is certainly part of its expertise.\n\nThe Kim decision relied heavily upon the RIR, discussed above.Footnote 77 That document reported that citizenship in South Korea is not automatic for North Koreans, and that South Korean officials have the discretion to refuse citizenship if the applicant is found to lack the “will and desire” to live in South Korea. In its 2013 decision on this subject, the RAD found that the RIR incorrectly linked protection under the Protection Act to citizenship under the Nationality Act.Footnote 78 For the following reasons, the RAD again reaches that determination.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-30", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 74–75", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "A plain reading of South Korean legislation leads the RAD to conclude the following. First, South Korea’s constitution defines that country’s territory as including the entire Korean peninsula. Second, South Korean’s Nationality Act provides that an individual is a national of South Korea if that person’s father or mother is a national of the Republic of Korea at the time of the person’s birth. Read together, these provisions make it clear that an individual born in North Korea to a national of North Korean is deemed a citizen of South Korea as well. Third, the Protection Act does not grant or deny citizenship; it clearly considers “protection” as settlement assistance.\n\nThe RIR reported that a North Korean must have the “will and desire” to live in South Korea and that the granting of citizenship is therefore discretionary. This interpretation is simply not supported by the legislation. The RAD notes that the Protection Act applies to those “desiring protection”;Footnote 79 there is no equivalent language in the Nationality Act, or anything to suggest that “will and desire” can influence the recognition of citizenship. A plain reading of the legislation leads the RAD to conclude that someone without “will and desire” might indeed be denied the benefits bestowed by the Protection Act – but not that such a person would be denied citizenship. The RAD notes here that the “exclusions” from citizenship considered in the RIR are in fact exclusions from protection, set out in the Protection Act.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-31", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 76–78", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "This view is supported by information provided by the South Korean government itself. In correspondence of May 22, 2013, the First Secretary of the Embassy of the Republic of Korea in Ottawa provided a paper which “represents the position of the government of the Republic of Korea.”Footnote 80 That document states that: According to the Constitution and other domestic laws of the Republic of Korea, North Korean-born persons are deemed nationals of the Republic of Korea. Therefore, there is no separate procedure needed for Korean-born persons to obtain the nationality of Republic of Korea after entering the Republic of Korea…. In other words, if it is confirmed that he/she is a North Korean defector, no separate process is needed to endow the person with South Korean nationality.Footnote 81\n\nThe South Korean government’s response also makes a distinction between nationality and protection. The document refers to North Koreans who have made an application for asylum overseas: [T]here are no issues with entering South Korea. However, benefits (settlement support fund; rental housing; support for education, medical services, etc.) that assist North Korean defectors under the “Act on the Protection and Settlement Support of Residents Escaping from North Korea” could be suspended.Footnote 82\n\nHaving considered this evidence, the RAD again finds that the RIR was factually incorrect when it linked “will and desire” to citizenship. The RAD reaches the same conclusion as did the Australian tribunal: the RIR conflated the issue of protection, which in this case refers to settlement assistance, with the concept of citizenship. This mistake led to a further error – the conclusion that South Korean officials have discretion to refuse citizenship to North Koreans.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-32", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 79–81", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Appellant insisted before the RPD that protection and citizenship were linked, and she maintains that position on appeal: The Protection Act is the Korean legislation that forms the legal authority for the granting of status to North Korean detractors (sic). The Protection Act sets out a list of groups that the Korean government will refuse to grant citizenship to in Article 9(1)….Footnote 83 With the greatest of respect, this argument is simply not supported by the Protection Act, which deals with assistance and protection but not citizenship, or by the official position of the South Korean government.\n\nIt is not possible for the RAD to determine how the Court’s decision would have been different had the RIR not been in evidence, or had the Court known that the RIR was flawed. However, it is clear that the Court relied heavily upon the RIR and the “will and desire” test cited therein. Beyond that, the Court’s only reference to objective evidence relates to a 2007 article in a law journal and to a UNHCR report.\n\nThe law article stated that “the possibility of obtaining ROK citizenship under the South Korean Constitution and the Nationality Act (ROK) should not preclude DPRK defectors from protection under international refugee law.”Footnote 84 This opinion does not, of course, establish that North Koreans are not considered to be South Korean nationals.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-33", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 82–85", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The Court suggested that the UNHCR “expressed doubts as to whether all North Koreans, particularly those who have transited through China… would automatically receive South Korean citizenship….” However, nothing in the quote that follows indicates that citizenship is discretionary; in fact, the UNHCR is quoted as saying that “the clause excludes most North Koreans from international protection because South Korea extends citizenship to all North Koreans, in effect giving them dual nationality.”Footnote 85\n\nAs the Kim decision is based in large part on evidence that has, in retrospect, been found to be flawed, it would be inappropriate for the RAD or the RPD to follow that decision with respect to the factual issue of citizenship in South Korea for nationals of North Korea.\n\nThe RPD believed the Appellant when she claimed to be a national of North Korea, born to parents who were nationals of North Korea. The RAD defers to these findings, as the lower tribunal had an advantage in assessing the Appellant’s credibility.\n\nThe Appellant is deemed by South Korean law to be a citizen of South Korea, as she was born in the Korean peninsula to nationals of North Korea. The South Korean government has provided its official position with respect to the issue of citizenship: “North Korean-born persons are deemed nationals of the Republic of Korea.”Footnote 86 An expert in matters of refugee and migration law matters in the Korean peninsula has provided his opinion that North Korean nationals are, from birth, automatically citizens of South Korea and that this position is settled law, accepted by government officials and the vast majority of both foreign and domestic legal scholars.Footnote 87", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-34", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 86–87", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RAD acknowledges that the Appellant has provided numerous documents and opinions which suggest that the granting of citizenship is discretionary. The RAD finds, however, that such opinion evidence cannot overcome the provisions of South Korean legislation, the official written position of the government which is charged with implementing those provisions, and the opinion of a qualified expert that this position is generally accepted.\n\nThere remain two issues raised by the Appellant. First, she reminds the RAD that she will be subjected by South Korean officials to an investigation and screening process. She points to the official statement of the South Korean government, which explains that “in the case of North Korean defectors, given that they are confirmed to be North Korean defectors after going through the investigation of the authorities concerned, they become citizens of the Republic of Korea without further procedures.”Footnote 88 This, she argues, indicates that there no certainty that she will be approved for citizenship.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-35", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 88–89", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "In the unique geopolitical circumstances of the Korean peninsula, it is not surprising that the South Korean authorities desire to thoroughly screen each individual coming from North Korea. There have been cases of North Korean agents claiming to be defectors and refugees, and of agents posing as defectors in order to assassinate a true defector. Situations such as these have increased the pressure on South Korean authorities to ensure that the intentions of North Koreans seeking to access citizenship are bona fide. There are also concerns that defectors and refugees may actually be ethnic Koreans from outside the Korean peninsula.Footnote 89 The fact that the Appellant will be subject to investigation and screening does not make the granting of citizenship discretionary. If she is found to be a North Korean national, she is deemed to be a citizen of South Korea.\n\nThe RAD recognizes that the Appellant is a minor and has few or no identity documents. However, she was able to credibly establish her identity before the RPD, and the RAD sees no reason why she should have difficulty in doing this before South Korean officials, who are undoubtedly more expert in assessing North Korean identity than is the IRB.Footnote 90 The fact that South Korean officials will investigate the Appellant’s nationality does not mean that they have discretion to deny her citizenship: if she is found to be a North Korean, she is deemed a citizen, according to South Korean legislation and the government’s interpretation and application of that legislation.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-36", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "para 90", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "Second, the RAD notes the Appellant’s clear evidence that she does not want to live in South Korea. She argues that South Korean nationality laws require that she express a will and desire to live in that country prior to granting citizenship.Footnote 91 The RAD disagrees. There is no such condition in the Nationality Act, and it appears that the Appellant’s will and desire is relevant only to whether she qualifies for assistance under the Protection Act. However, even if the Appellant’s lack of will and desire is a relevant consideration for South Korean officials, the RAD cannot accept that this places citizenship outside of the Appellant’s control. If the only reason that she cannot have her citizenship endowed is that she simply does not want it, then the granting of citizenship remains within her control and not at the discretion of the South Korean authorities. The “control” test set out in Williams acknowledges that the unwillingness of a refugee claimant to take steps required to gain state protection is fatal to her claim, unless that unwillingness results from the very fear of persecution itself.Footnote 92 While she has argued that the Protection Act creates impediments to citizenship, the RAD has found that this is not the case, and concludes that the Appellant has not established that there are significant impediments to her exercise of citizenship, as considered in Tretsetsang.", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - }, - { - "id": "irb-TB4-05778-37", - "doc_type": "caselaw", - "act_code": "TB4-05778", - "act_short": "TB4-05778", - "act_name": "IRB Jurisprudential Guide TB4-05778", - "section": "", - "citation": "IRB Jurisprudential Guide TB4-05778", - "marginal_note": "paras 91–94", - "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", - "part": "Immigration and Refugee Board — Refugee Appeal Division", - "division": "", - "text": "The RAD finds that the Appellant is deemed to be a national of South Korea by that country’s legislation and government. She does not need to apply for that citizenship, though South Korean officials will verify her country of origin before recognizing her nationality. The evidence before the RAD establishes that once she has been determined to be a national of North Korea, she will automatically be deemed a citizen of South Korea.\n\nThe Appellant does not challenge the RPD’s finding that she lacks a well-founded fear of persecution in South Korea or that adequate state protection is available to her there. The RAD is guided by the UNHCR Handbook: [A]n applicant’s well-founded fear of persecution must be in relation to the country of his nationality. As long as he has no fear in relation to the country of his nationality, he can be expected to avail himself of that country’s protection. He is not in need of international protection and is therefore not a refugee.Footnote 93\n\nThe RAD is sympathetic to the situation of the Appellant – a minor XXXX XXXX XXXX XXXX XXXX XXXX XXXX, who has found some stability and happiness in Canada. However, the RAD has no jurisdiction to determine this appeal on humanitarian and compassionate grounds. As the Appellant has not established that she has a well-founded fear of persecution in South Korea, she is not entitled to Canada’s surrogate protection.\n\nPursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Signed: Edward BosveldDate: June 27, 2016", - "current_to": "2016-06-27", - "last_amended": "", - "history": "", - "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" - } -] \ No newline at end of file +version https://git-lfs.github.com/spec/v1 +oid sha256:d1c9e02fc4c2ad5c74fde96b590cc7bb829e059e49ec778e6ce36edb96d7bfe5 +size 10638412